RAMIREZ v. THE STATE.
S19A1504
Supreme Court of Georgia
DECEMBER 23, 2019
307 Ga. 550
WARREN, Justice.
Juan Carlos Ramirez was convicted of felony murder and other crimes in connection with the shooting death of Justin Acevedo.1 On appeal, Ramirez contends that his trial counsel rendered constitutionally ineffective assistance by withdrawing a request to instruct the jury on mutual combat. We disagree and affirm.
Viewed in the light most favorable to the jury‘s verdicts, the
When Ramirez and Martinez arrived at Martinez‘s apartment complex, they encountered the other group, whose members were standing on the opposite side of the street. At that point, Ramirez
There are multiple accounts about what Acevedo said to Ramirez at that point. Contreras testified that Acevedo told Ramirez, “just put the gun down, it has nothing to do with you, it‘s just between her and her,” (referring to Jimenez and Martinez) and an investigating officer testified that in an interview, Contreras told him that Acevedo also told Ramirez, “if you‘re gonna do it, just do it.” Contreras testified that Acevedo said Ramirez “wasn‘t gonna shoot,” and Otero similarly testified that Acevedo said to Ramirez, “you won‘t shoot.” According to Martinez‘s trial tеstimony, Acevedo walked toward Martinez and Ramirez while shouting and then returned to his side of the street, at which point he told Ramirez, “do not pull that gun out if you‘re not going to use it.” And in a statement to police, Ramirez said that “one of the guys said, I‘ll come
It is undisputed that in response to Acevedo‘s statement or statements, Ramirez fired, and the bullet struck Acevedo in the chest, killing him. Except for Contreras, who claimed that the gun was pointed “directly towards us” when Ramirez shot, the statements of the other witnesses were consistent that Ramirez was instead pointing the gun down toward thе street when he fired, and that the bullet ricocheted up and struck Acevedo. The medical examiner also testified that “the appearance of the entrance gunshot wound on [Acevedo] plus the appearance of the bullet make me fairly confident that this bullet hit a hard surface prior to hitting the decedent.” And the crime scene investigator also found a “defect” in the street, potentially caused by a bullet striking the pavement between where Ramirez and Acevedo had been standing. The distance between where Ramirez and Aсevedo had been standing was about 50-55 feet.
After the shooting, Ramirez and Martinez fled, and Ramirez gave the gun to Martinez and told her to put it in his apartment.
Ramirez does not contest the legal sufficiency of the evidence supporting his convictions. Nеvertheless, in accordance with this Court‘s general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorizе a rational jury to find Ramirez guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).
At trial, the jury was charged on justification, including self-defense, as well as voluntary and involuntary manslaughter. Ramirez contends, however, that his trial counsel was
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevаiling professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To carry the burden of overcoming this presumption, a defendant “must show that no reasonable lawyer
To authоrize a jury instruction, there need only be slight evidence at trial supporting the theory of the charge. State v. Newman, 305 Ga. 792, 796-797 (827 SE2d 678) (2019). “‘Mutual
At the hearing on Ramirez‘s motion for new trial, Ramirez‘s
First, Ramirez argues that when he brought a gun to a proposed fistfight, Acevedo did not withdraw from the confrontation, but instead persisted in daring and taunting Ramirez — even threatening to seize Ramirez‘s gun by force — and that this communicated Acevedo‘s intent to engage in combat — an invitation that Ramirez accepted by firing his gun. We disagree. None of the evidence offered about Acevedo‘s comments to Ramirez befоre Ramirez shot Acevedo — “just put the gun down, it has nothing to do with you, it‘s just between her and her“; “if you‘re gonna do it, just do it“; “you won‘t shoot“; “do not pull that gun out if you‘re not going to use it“; and “I‘ll come across the street and take that gun
evidence of arguing between a defendant and victim is not itself
Second, there is no evidence—or even any contention—that Acevedo was armed with a weapon, let alone a deadly weapon,
this Court has recognized some inconsistency in the casе law with regard to whether both alleged combatants are required to have deadly weapons in order for the jury to be charged on mutual combat . . . there are numerous precedents holding that both combatants must be so armed.
Watson v. State, 298 Ga. 348, 350 (782 SE2d 18) (2016) (citing White v. State, 287 Ga. 713, 723-724 (699 SE2d 291) (2010); Joyner v. State, 208 Ga. 435, 439 (67 SE2d 221) (1951)); see also Mobley, 296 Ga. at 879-880. In short, evidence that one person drew а gun on an unarmed person, and then shot the unarmed person in response to verbal taunts, generally cannot constitute evidence that the two people engaged in mutual combat. See, e.g., Johnson, 300 Ga. at 669 (“There is no evidence here that Johnson and the victim mutually agreed to fight, and evidence of an argument over money that turned violent is not sufficient to show mutual combat.“); Watson v. State, 298 Ga. 348, 350 (782 SE2d 18) (2016) (mutual combat charge not warranted because “there was no evidence that Brown ever possessed a deadly weapon during his encounter with Appellant,”
Under these circumstances, Ramirez has failed to show any evidence warranting a charge of mutual combat. He therefore has failed to carry his burden of showing that his trial counsel‘s withdrawal of his request to charge on mutual combat was constitutionally deficient. See, e.g., Bannister v. State, 306 Ga. 289, 293-294 (830 SE2d 79) (2019) (trial counsel not ineffective in withdrawing request to charge оn mutual combat because no evidence supported that charge); Barnes, 305 Ga. at 21 (“Trial counsel cannot be faulted for failing to request a jury charge that was not authorized by the evidence.” (citation and punctuation omitted)). Ramirez‘s claim of ineffective assistance of counsel therefore fails.
Judgment affirmed. All the Justices concur.
Murder. DeKalb Superior Court. Before Judge Johnson.
Gerard B. Kleinrock, for appellant.
Sherry Boston, District Attorney, Emily K. Richardson, Lenny I. Krick, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S.