Pena v. StatePena v. State
Flavio Garay Pena was convicted of malice murder and related crimes in connection with the death of Jose David Cruz Hernandez. Pena appeals the denial of his amended motion for new trial, contending that the evidence was insufficient for a jury to find him guilty; the trial court erred in refusing to strike a juror for cause, denying his motion to exclude his custodial statement, excluding certain testimony, and giving an improper jury charge; and his trial counsel rendered ineffective аssistance. Finding no error, we affirm.1
The medical examiner testified that the victim suffered numerous injuries, including the following: several depressed skull fractures at the top and back of the head, hemorrhaging inside the skull, fractures in the bones of each cheek that caused the right side of the face to be “flattened,” injuries to the forearms consistent with defensive wounds, a tear to the brain stem, and a partially torn right ear, separated from the head. The tread-like pattern of bruising on the victim‘s left cheek suggested to the medical examiner that the bruising could have been caused by footwear. The medical examiner also opined that a significant amount of trauma to the victim‘s head occurred while “the head [was] down and supported against a firm surface, such as the grоund, and with multiple blows occurring ... in that position.” The medical examiner identified the cause of death as blunt force trauma to the head, and she testified that it would have required “a significant amount of force” to cause the extensive fracturing of the skull that the victim suffered. Additionally, testing showed that DNA from blood recovered from Pena‘s jeans and boots matched the victim‘s DNA.
During Pena‘s subsequent police interview, Pena explained that he and the victim were walking down a roadway after leaving a club where they had been drinking. The victim began to “insult” Pena and
1. The evidence as described above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). The issues of witness credibility and whether a killing is justified or intentional and malicious are for the jury, “and the jury is free to reject a defendant‘s claim that he acted in self-defense.” White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010) (citation omitted). Pena contends that the State failed to prove beyond a reasonable doubt that he “was not acting as a reasonable person with battered person syndrome would [act] in the ... presеnce of a real threat when [the victim] told [Pena that] he would kill him.” See Chester v. State, 267 Ga. 9 (2) (471 SE2d 836) (1996) (explaining that battered person syndrome evidence is admissible and relevant in a proper case as a component of justifiable homicide by self-defense). However, for the reasons discussed in Division 5, infra, the trial court properly did not allow the introduction of any evidence that Pena sufferеd from battered person syndrome.
2. Pena argues that the trial court abused its discretion in refusing to strike Juror 25 for cause because the prospective juror was biased. During voir dire, Juror 25 stated that he would “find it difficult to be somewhat impartial due to the fact that [Pena] beat somebody to death ... versus it being impulsive, shooting somebody,” and that he found it difficult to believe that a person could beat another person to death for ten to fifteen minutes. However, upon further questioning, Juror 25 indicated that he had not formed an opinion as to the guilt or innocence of the defendant, was prepared to listen to the facts, would not ignore the trial court‘s instructions, could listen to the evidence in the case and reach a decision based on that evidence, and believed that he could be fair and impartial. Based on these statements, the trial court refused to strike Juror 25 for
3. Pena contends that the trial court erred in denying a motion to exclude his custodial statement. Specifically, he alleges that the Spanish2 version of the Miranda3 warnings he was given did not adequately inform him of his constitutional rights. In support of his claim, he points to testimony in the record that the detective used “made-up” Spanish words and made mistakes in gender, accent, pronunciation, fоrmality, and conjugation when giving the Miranda warnings to Pena.
“The trial court determines the admissibility of a defendant‘s statement under the preponderance of the evidence standard considering the totality of the circumstances.” Sosniak v. State, 287 Ga. 279, 279 (1) (695 SE2d 604) (2010) (citations and punctuation omitted). Furthermore, we have explained:
When the facts material to a motion to suppress are disputed, it generally is for the trial judge to rеsolve those disputes and determine the material facts. ... [T]his Court has identified three corollaries of th[is] principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.
Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (citations and footnotes omitted).
The testimony at the Jackson-Denno4 hearing showed the following. A Spanish-speaking detective gave Pena his Miranda warnings and assisted in communicаtions between Pena and another
After hearing this evidence and viewing the videotaped interview, the trial court found that, even though the detective used “some unintelligible words,” “the totality of the circumstаnces show[ed] that the defendant ... was aware that he was being informed of his critical Miranda rights at the time, ... that [he] made a knowing and intelligent waiver of his Miranda rights and that the statement made after the waiver of those rights w[as] ... voluntarily given.” Considering the totality of the circumstances, the trial court was authorized to conclude that the State had shown by a preponderance of the evidence that Pena knowingly and voluntarily waived his Miranda rights and that his statement was voluntary. See Delacruz v. State, 280 Ga. 392 (2) (627 SE2d 579) (2006) (holding that whether an accused understood the Miranda warnings depends on the totality of the circumstances, not solely on the interpreter‘s skill, and that an imperfect translation of the rights does not rule out a valid waiver as long as the accused understood the warnings).
5. Pena contends that the trial court erred in disallowing expert testimony regarding his symptoms of post-traumatic stress disorder and his relatives’ testimony about physical abuse and corporal punishment that he experienced in childhood. He asserts that the exclusion of this evidence prevented him from presenting a justification defense based on battered person syndrome. However, the evidence in question was not admissible to support Pena‘s justification defense. “Because justification is based on the fears of a reasonable person, the subjective fears of a particular defendant are irrelevant in the evaluation of this defense.” O‘Connell v. State, 294 Ga. 379, 382 (3) (754 SE2d 29) (2014) (citation omitted; emphasis in original). Therefore, evidence of abuse or violent acts committed against a defendant by someone other than the victim is not admissible to support a justification defense. See id. (finding evidence of childhood abuse committed against the defendant by someone other than the victim inadmissible to support a justification defense); Bryant v. State, 271 Ga. 99 (3) (515 SE2d 836) (1999) (same as to expert testimony that the defendant suffered from a post-traumatic stress disorder from childhood abuse committed by someone other than the victim). Moreover, Pena was unable to proffer any admissible evidence indicating that
6. (a) Pena argues that the court erred in giving the following jury charge:
In applying the laws of self-defense, a person is justified to kill another person in defense of self or others. The standard is whether the circumstances were such that they would excite the fears of a reasonable person. For the killing to be justified under the law, the accused must truly have acted under the influence of thеse fears and not in the spirit of revenge.
Pena contends that it was plain error within the meaning of
Pena has waived plain error analysis of this issue because he requested the charge in question and made no objection to the charge at trial. White v. State, 297 Ga. 218 (773 SE2d 219) (2015) (holding that the defendant waived plain error analysis where “he requested the рattern charge in question and agreed with the trial court‘s ultimate decision to give the charge“). Moreover, a review of the trial transcript shows that defense counsel tailored his closing argument to this charge and twice told the jury that the State had the burden of disproving beyond a reasonable doubt that Pena had acted under the influence of a reasonable fear аnd not in a spirit of revenge. Under these circumstances, Pena affirmatively waived for appellate review the error that he now alleges, and thus, it provides no basis for reversal.
(b) Nevertheless, because Pena also claims that his trial counsel provided ineffective assistance with respect to this jury charge, see Division 7, infra, we will address the merits of this charge. See Woodard v. State, 296 Ga. 803 (3) (b) (771 SE2d 362) (2015); Hartsfield v. State, 294 Ga. 883 (2) (757 SE2d 90) (2014). Pena alleges that this jury instruction placed an additional burden on him not authorized by the statutory definition of justification in
Having reviewed the trial court‘s jury charges as a whole, see Davis v. State, 290 Ga. 757 (5) (725 SE2d 280) (2012), we conclude that the chаrges properly covered the applicable principles of law and did not add an additional “hurdle” to Pena‘s affirmative defense of justification, as he contends.
7. Pena argues that trial counsel was ineffective for requesting the jury charge discussed in Division 6, supra, because it included the outdated and prejudicial language regarding the “spirit of revenge.” To prevаil on this claim, Pena must show that trial counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010).
As explained in Division 6 (b), supra, this instruction was not legally improper. Accordingly, Pena‘s ineffective assistance claim fails. See Vergara v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010).