*1 alleged assistance. ineffective counsel’s of first contrary majority’s characterization, these claims to practicable point proceed earliest not “eviscerate” the this does at it. rule but rather honors moment Appeals, approach Court of
Furthermore, followed adopts problematic majority in that it is based herein, is which the trial counsel claims nоt assistance of notion that ineffective acknowledging waived, without new trial are on motion for raised being appellate counsel which is it is the ineffectiveness very not have been raised nature could and which asserted the first motion for analytical than this more troublesome
new trial. Even requiring practical effect of flaw, however, is the corpus proceedings. Given thаt claims to habeas deferment of these guarantee Georgia on habeas of counsel not the assistance law does (1999), Turpin, corpus, see Gibson litigants many deferring cases force claims to habeas will these disadvantage. pro se, substantial claims to their assert these deferring disapprove practice of reasons, I For these to habeas counsel clаims assistance such ineffective corpus proceedings claims in this remand Wilson’s and thus would regard to the trial court. joins in Benham that Justice
I am authorized to state part. part dissent in and concurrence 9, 2009. Decided November appellant. Boyter,Jr., Poole, for Deborah J. Ronald S. Attorney, Barker, Spencer Lawton, Jr., Christine S. District Attorney Attorney, Baker, General, Thurbert E. District Assistant appellee. Attorney General, Zisook, A. Assistant David THE RUIZ v. STATE. S09A0821. Justice. Thompson,
Judgments Emmanuel Ruiz were entered of conviction of malice murder and him of three counts found after possession handgun during Carty, shooting Lurhman, David deaths of Joe connection with claiming appeals, Tracy he received ineffective Glover.1 trial, and motion for new counsel and counsel on assistance of trial An indictment was returned on 1 Thecrimes were committed *2 asserting regard error with to certain instructions. For the judgments follow, reasons that we affirm the of conviction. light
Viewed in verdict, most favorable to the the evidence paid established $2,500 Lurhman, that Ruiz had been Joe proprietor procure drugs. Tavern, Ruiz, however, of F.J.’s failed to drugs shooting, deliver the and on the afternoon of the Lurhman phone attempting money. made several calls to Ruiz to collect his evening, go That Ruiz told a friend he intended to to F. J.’s everyone Tavern kill Lurhman and else the bar. Ruiz and Terry Harper co-defendant Brandon entered F. J.’s Tavern where Harper patron Carty. shot and killed Lurhman and bar David Ruiz fatally Tracy parking shot bartender Glover in the lot as she ran building from the Harper after shots had been fired the bar. Ruiz and аpartment they help returned to Ruiz’s where solicited from dispose weapons nearby a friend to of the two murder lakes. These police belonging were later retrieved and identified as to Ruiz. night shooting, telephoned girlfriend Later on the Ruiz his “somebody up everyone her, and told went to F.J.’s Tavern and took parking out.” He admitted to her that he shot a woman in the lot shootings. Harper beсause she could have been a witness to the other told others that he shot Lurhman and another man who
happened multiple gunshot inbe the bar. Each victim died of wounds. acknowledged through attorneys trial,
At Ruiz his that he shot through parking and killed Glover as she ran lot, but he claimed “panicked” that he and shot her in self-defense.
1. The evidence was sufficient for a rational trier of fact find guilty beyond а reasonable doubt of three counts of murder and 30, 2001, charging Terry Harper October Ruiz and co-defendant Brandon with malice murder (three (three counts); felony aggravated counts); murder while the commission of an assault (three aggravated counts); deadly weapon possession weapon during assault with a (one count). felony August 20, 2003, 27, August commission of a 2003, Trial commenced on and on 29, 2003, chаrged. August found Ruiz as He was sentenced on to three imprisonment plus years consecutive terms of life malice for murder five consecutive on the weapons by operation offense. The alternative murder counts were vacated of law and aggravated merged purposes sentencing. assault counts were See Malcolm v. 5, 2003, September Ruiz filed a motion for new trial on 8, whiсh he amended on December 2004. The motion for new trial as amended was denied on 16, September appeal 14, 9, January A 2005. notice of for Ruiz was filed on On October 2005. 2006, appointed public represent the trial court defender’s office to Ruiz in further 14, 2006, proceedings. February vacating On the court entered an order 16, September purpose 2005 order for the limited Ruiz to assert a claim of filing appeal following ineffective assistance counsel and of a new notice of (“counsel trial”) decision as to that issue. New counsel on motion for new entered his appearance 1, 29, 2008, August on behalf of Ruiz 2006. On denying entered an order a motion for new trial. Counsel on motion for new trial filed a notice appeal appearance on October 2008. Current counsel entered his as counsel for appeal Ruiz and filed another notice of on his behalf on October 2008. case was February argument May docketed this Court on Oral was heard on 2009. weapon during of crime. Jackson v. 560) (1979).
Virginia,
assistance of counsel
he was denied effective
2. Ruiz asserts that
Alternatively, he has moved this
for new trial.
at trial and on motion
hearing
evidentiary
to the trial court for
Court to remand his case
opposes
motion for remand on the
The State
as to both claims.
*3
ground
of ineffective assistance
Ruiz has waived his claim
practicable
by failing
moment, i.e.,
first
to raise it at the
trial counsel
reopened
proceedings
during
which were
for new trial
the motion
purpose.
expressly
for
(a)
timely
conviction, trial counsel filed
Trial
After
cоunsel.
denying motion
Ruiz. An order
for new trial on behalf of
motion
September 16, 2005. In a
amended,
trial, as
was entered
for new
appointed
subsequent
on motion
new counsel
order, the trial court
counsel”)
(“motion
represent
vacated
Ruiz and also
new trial
purpose
September
16,
for the stated “limited
2005 order
to be raised
assistance of trial counsel
a claim of ineffective
practicable
counsel entered
time.” Motion
and heard at the earliest
appearance
motion for new
of Ruiz and amended the
on behalf
of trial counsel and
of ineffective assistance
trial, but raised no claim
hearing
during
the motion. The trial
the issue was not asserted
September
2008,
for new trial on
court denied the motion
appeal
timely
order,
from that
filed a
nоtice of
motion counsel
pursuant
in this
Thereafter
which the case was docketed
Court.
appearance
appellate
on behalf of Ruiz
counsel entered his
current
appeal
from the
2008 order.
notice of
and filed another
agree
assistance of trial counsel
that the claim of ineffective
We
opportunity
it,
had the
to raise
waived since motion counsel
has been
(2) (359
Thompson
State, 257 Ga.
did not do so. See
but
challenge
(“Any
will be deemed
ineffective counsel
SE2d
attorney
trial and
an amended motion for new
waived if the new
files
challenge
the trial court so that the
does not raise the issue before
practicable moment, i.e.,
can be heard at the earliest
motion.”).
hearing
State, 278 Ga.
See also Harden v.
on the amended
(597
380) (2004).
(2)
only
circumstances, Under the
may pursue
assistance of
a claim of ineffective
means which
corpus proceeding.
in a habeas
trial counsel is
(b)
preserve the issue of
on motion
new trial. To
Counsel
previous counsel,
must raise the
new counsel
ineffective assistance
post-conviction
practicable opportunity
review
earliest
issue at the
(2)
State,
“Generally, appeal presents practicable when the thе earliest opportunity claim, to raise an ineffectiveness and the claim is indeed appeal, [our courts] raised for the first time on remand the evidentiary hearing case to the trial court for an on the issue.” (2005). State, Rosser v. 276 Ga.
inquiry now before this Court is “whether the trial court would have granted [of counsel] a new if trial the claim of ineffectiveness Hayes had been raised motion сounsel.” (3) (a) (426 Remand is if not mandated we can determine from the record that the defendant cannot establish two-prong ineffective assistance of counsel under the test set forth Washington, Strickland u. (1984). Hayes, supra at 883 See also Wilson v. 104) (2009) (when the issue of trial counsel’s ineffective- *4 any trial, ness has been raised on motion for new claims of ineffective assistance of trial counsel not waived; raised at that time are improper). therefore, remand is Strickland, Under a defendant must performance professionally show that trial counsel’s and deficient, unprofessional errors, but for counsel’s there exists a reasonable probability proceeding that the outcome of the would have been Hayes, supra. more favorable.
Ruiz submits that counsel on motion for new trial rendered ineffective assistance because he failed to assert a claim of ineffective assistance of trial counsel. More
specifically,
Ruiz submits that trial
ground
request
counsel was ineffective on the sole
that he failed to
jury
impeachment involving
turpi-
instruction a crime of moral
allegedly
tude as this
related to a witness for the State. The State
presented overwhelming evidence from several witnesses that Ruiz
Harper planned
and
Luhrman,
executed
attack on
and that
Carty
admittedly
was also killed in the melee. Ruiz
shot and killed
parking
attempted
escape
Glover in the
lot as she
from the scene.
assuming arguendo
request
Even
that
counsel’s failure to
charge
performance,
constituted deficient
we find no reasonable
prоbability on the record before the Court that the outcome of the
charge
requested.
trial would have been different had been
See
(3) (b) (678
900)
generally Washington
v.
unreasonable supra. that Shorter, It follows made. would have same situation is not mandated. remand improperly instructed contends that
3. Ruiz require jury “[acquiescence silence, circumstances or when the conduct, amount to an admission.” denial, other answer, a § 24-3-36. OCGA upon potential prejudice
Recognizing
comment
outweighs
come forward far
silence or failure to
criminal defendant’s
Mallory
probative
value,
this Court
its minimal
(1991) (overruled
by Chapel
grounds
on other
802) (1998)),
such a
held that
longer
See also
in a criminal case.
no
be allowed
comment will
(reiterating
Reynolds
State,
However, it does not judged isolation, instruсtions are not . . erroneous . the entire in the context of but rather are considered determine whether record as a whole to and the trial *5 applied has the likelihood that the there is a reasonable way challenged the Constitu- in a that violates instruction jury charge [Cit.] is not revers- Second, an erroneous tion. harm. ible unless it causes (2) (b) (492
(Punctuation omitted.) Bridges State, 268 Ga. 703 877) (1997). Improper silence does not reference to a defendant’s may automatically require reversal; the error be found to be [Cit.] beyond doubt. “The determi- harmless nation of harmless error must basis, a reasonable by case be made on a case taking facts, the the trial context into consideration juxtaposed prejudice thereby created as error, the and the guilt.” strength evidence of defendant’s [Cit.] 186) (2000). (5) See also State,
Allen v. 272 Ga. (3) (490 452, 454 State, Williams v. (officer’s right improper remain silent on defendant’s comment constituted harmless error where the “did statements not strike at ‘point directly ”); at the substance of defendant’s defense’ Bruce v. (2) (603 App. (2004); Taylor App. 150, Ga. charge given in erroneous case was the context of a
larger charge impeachment immediately of witnesses. It was by pattern duty followed instruction that the defendant is under no present testify “[i]f to testify, evidence or to the defendant elects not to hurtful,
no harmful, inference or adverse to the defendant shall jury.” Suggested Jury be drawn Instructions, Pattern Vol. II: § Cases, Criminal 1.32.10.2 We find that as a whole clarity jury concerning contained sufficient the exercise of the so as not to mislead the right regard prejudice to remain silent. With to the suggests factor, Ruiz that his failure to advise law enforcement officers at the time of his arrest that he shot Glover self-defense be supposition construed as an admission. But this is far too speculative provide necessary tenuous and fact, harm. In our review of the record reveals that there was no reference at trial which right could be construed as a сomment on Ruiz’s exercise of his guilt overwhelming, addition, remain silent. In the evidence of way pointed directly and the erroneous in no at the substance supra of Ruiz’s defense. at 454 Contrary suggestion, Reynolds, supra, to the dissent’s neither Wright nor holds giving that the of an instruction in the of OCGA 24-3-36 can never be considered harmless error a criminal case. In Reynolds, prohibition Mallory the Court refused to restrict the speak situations where the defendant failed to act or before his holding impermissible arrest, it is also to comment on a custody Wright, supra, defendant’s silence while and at trial. In magnitude when, committed an error of constitutional presence jury, questioned investigating of the court right officer and elicited evidence of the defendant’s invocation of the thereby derailing silent, to remain the the substance of his defense. But *6 Wright court went on to determine whether the constitutional noting “[t]o harmless, error was conviction, that order reverse a point the evidence of the defendant’s election to remain silent must directly at the substance of the defendant’s defense or otherwise substantially prejudice eyes jury.’ [Cit.]” the defendant in the Wright, supra supra. Finding at 594. See also under the questions сircumstances that “the intent of the court’s and comment improper implica- was to rehabilitate the State’s case and make an testify Ruiz did not at trial. post-arrest provide Wright’s statement,” a refusal tion based supra Wright, harmless.3 error could not be considered at the Analyzing Allen, set forth in this case under the test the error jury (5), improper supra instruction was that the we hold at beyond doubt. a reasonable harmless (3) (b) Citing Crowder erroneously (2000), that Ruiz also asserts during weapon possession jury a the that the offense instructed in a manner other be committed of a crime could the commission alleged Crowder, In the indictment indictment. in the than that illegal weapon possession murder, crime of offense to the limited the weapon erroneously charged the offense that court but thе trial robbery, during and there a murder or armed could be committed jury that Crowder a could conclude from which was evidence possessed robbery. weapon of an armed in commission the while jury probability that the con- reasonable Thus, the court found a alleged weapon possession in manner not Crowder of victed the indictment. “Any charged present as follows: case, the trial court In the person person arm’s reach of his on or within who shall have attempt during of, to commit or the firearm the commission involving person another, is the crime possession crimes.” of certain firearm the commission handgun during charged of “a Ruiz with The indictment following felonies; wit, of at least one of felony aggravated read assault.” The trial court murder, murder, or jury prior tried and commеncement of to the to the the indictment legal gave aggravated murder, murder, Crowder, definition of malice instructions. Unlike assault its final sufficiently which felonies Ruiz clear as to instructions were court’s possessing alleged firearm. we while to have committed was find no reasonable probability misled. except Hunstein, Judgment concur, All the Justices affirmed. Hines, J., J., and who dissent. C. dissenting. Justice, Chief HUNSTEIN, majority’s disagree in Division 3 I conclusion Because with jury using instructing the trial court’s error By respectfully dissent. harmless, I must 24-3-36 was of OCGA analysis Mallory applied error violations Court has also harmless This (2).(b) Lampley v. of counsel claim. See context of an ineffective assistance 702) (2007) (where Ga. 494 and Jackson v. *7 satisfy prejudice prong overwhelming, Mallory guilt failed to violations evidence of 674) (1984)). Washington, v. Strickland charging “aсquiescence or silence when the circum- require answer, denial, stances conduct, an or other amount to admission,” the trial court commented on Ruiz’s silence in right against Georgia violation of his self-incrimination under the Const, I, I, Constitution.4 See Ga. Art. Sec. Par. XVI. This long “bright-line evidentiary Court has maintained a rule” that in criminal cases a comment aon defendant’s silence or failure to cоme permitted prejudice resulting forward is not because the therefrom is 854) “indisputable.” Reynolds (2009), discussing Mallory State, especially prejudicial The comment here was because it “was by reprimanded, counsel, made not the State’s who could have been testimony witness, or evidence, whose could have been excluded from judge impartial himself, who, arbiter,
but unique, powerful positiоn the trial as the jurors.” Wright inwas to influence (reversing conviction where trial court elicited evidence of and commented on arrest). upon Accordingly, defendant’s decision to remain silent I recognize erroneously instructing on the lan- § guage of OCGA 24-3-36 in the context of a criminal trial cannot be
considered harmless. joins
I am authorized to state that Justice Hines this dissent.
Decided November appellant. Steel,
Brian Attorney, Howard, Jr., Mallon, L. Paul District Marc A. Bettie- Attorneys, Hart, Baker, anne C. Assistant District Thurbert E. Attor- ney Bеnjamin Attorney General, Pierman, H. General, Assistant appellee.
S09A0887. WASHINGTON v. THE STATE.
NAHMIAS, Justice.
Sandy Washington along Ryans, was indicted with Vernon Jeremy murder, and Andre Madison for malice murder, and the of a firearm the commission of a transcript particular charge. of the conference contains no discussion of this Although general pattern jury instructions for civil trials include a on OCGA (5th 24-3-36, Instructions, 02.171, Suggested Jury ed.), § see Pattern Vol. I: Civil Cases charge properly part pattern jury Suggested not is instructions for criminal trials. See (4th ed.). Instructions, Jury Pattern Yol.II: Criminal Cases