PENA v. THE STATE.
S15A0430
Supreme Court of Georgia
June 29, 2015
297 Ga. 418
HUNSTEIN, Justice.
FINAL COPY
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 assistance. Finding no error, we affirm.1
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 then threatened him by repeatedly telling Pena that he was going to kill him. Pena believed that the victim was holding a broken bottle behind his back and was “scared” that the victim was going to kill him. Pena struck the victim with his hand, and the
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 . . . presence 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
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 cause. As this juror did not “express[ ] a position that was so fixed and definite that [he] would not be able to decide the case based on the evidence and the trial court‘s instructions,” we do not find any manifest abuse of discretion in the trial court‘s refusal to strike this juror for cause. See Grimes v. State, 296 Ga. 337, 343-344 (1) (c) (766 SE2d 72) (2014). See Cade v. State, 289 Ga. 805 (3) (716 SE2d 196) (2011).
“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 resolve 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.
The testimony at the Jackson-Denno4 hearing showed the following. A Spanish-speaking detective gave Pena his Miranda warnings and assisted in communications between Pena and another detective during Pena‘s interview. A certified court interpreter, who had reviewed a videotape of the interview, testified that the Spanish-speaking detective told Pena the following in Spanish at the beginning of the interview: “before we talk, I have to tell you about your rights“; “you have to understand your rights“; “you can stay silent“; “[a]nything you say would be used against you in court“; “[y]ou can have an attorney before or after“; “[i]f you don‘t have enough money to pay for an attorney, then you can ask for one to be appointed to you“; “this person could be present during any interrogation“; “do you wish to answer any questions without an attorney being present?“; and “you can stop the interrogation at any time.” The interpreter testified that the detective “mispronounced” the Spanish word for “interrogation” and used “a made up word” that sounded similar to the Spanish word for “name” in explaining to the defendant that he could have an attorney “named” for him. However, she also testified that she was able to interpret the detective‘s
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 circumstances 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
4. Pena argues that the trial court erred in disallowing the testimony of Pena‘s sister, that Pena had told her that the victim had inflicted the injuries on him. The trial court did not abuse its discretion in correctly concluding that, unless Pena testified and was subject to cross-examination, his sister‘s proffered testimony was inadmissible hearsay because she was not able to testify from her own direct knowledge that the victim inflicted the injuries on Pena. See Parker v. State, 276 Ga. 598 (2) (581 SE2d 7) (2003) (holding that a defendant‘s self-serving pre-trial statements are inadmissible hearsay unless the defendant testifies); Grano v. State, 265 Ga. 346 (3) (455 SE2d 582) (1995) (holding that evidence of a victim‘s prior violent acts may not be established by hearsay testimony); see also Smith v. State, 284 Ga. 304 (3) (667 SE2d 65) (2008) (holding that a trial court‘s evidentiary rulings are reviewed for an abuse of discretion). Furthermore, the trial court did not abuse its discretion in disallowing Pena‘s sister to testify that she had seen bruises or injuries on Pena when he was living with the victim. As the trial court concluded, the testimony was not relevant without evidence showing that the victim caused the injuries, and Pena made no proffer that included such evidence. See State v. Hodges, 291 Ga. 413, 417 (728 SE2d 582) (2012) (emphasizing that “a linchpin of the ‘chain
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 he and the victim had a close personal
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 these 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 (__ SE2d __) (2015) (holding that the defendant waived plain error analysis where “he requested the pattern 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
(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 charges 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
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).
Judgment affirmed. All the Justices concur.
Decided June 29, 2015.
Murder. Gwinnett Superior Court. Before Judge Walker, pro hac vice.
Sharon L. Hopkins, for appellant.
Daniel J. Porter, District Attorney, Tracie H. Cason, Christopher M. Quinn, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.