S15A0396. TORRES v. THE STATE.
S15A0396
771 SE2d 894
Decided April 20, 2015.
Tоrres’s sole challenge is that his trial counsel provided ineffective assistance by not pursuing a mental health defense. For the reasons that follow, the challenge is without merit, and we affirm.1
Gonzalez was known to always carry $500-$600 in his wallet. A couple of days before April 26, 2008, Torres asked Gonzalez for money because Torres wanted to return to his family and he was not working and had no money of his own. Gonzalez told Torres that he did not have any money to give him.
All four men were home on April 26, 2008, and around midnight very loud music was heard playing from а home theater in the living room; this was followed by a series of gunshots. Romero-Aguirre saw Torres leaving Gonzalez’s bedroom; Torres had a pistol in his hand. Torres told Romero-Aguirre and Garcia-Cantun that they “shouldn’t run,” and at gunpoint ordered them to sit down on the couch in the living room. Romero-Aguirre asked Torres about Gonzalez, and Torres “coldly” responded that Gonzalez was dead because he had lied to him. Torres told the two men that they were going to go with him, and then ordered them to get into a truck in the garage. When Torres then wеnt to the front of the house to shut the door, Romero-Aguirre and Garcia-Cantun escaped in the truck; however, they got lost in the subdivision and drove past the house again. Torres was in the front yard as they passed by and pointed the handgun at them. The two men drove to the interstate to try and find a police officer. They found an officer, reported the shooting, and gave the officer a black bag belonging to Torres that they found in the truck. The men were transported back to Newton County, where they directed officers to Gonzalez’s home. Gonzalez’s body was found on the floor of the master bedroom; there was a large amount of blood, and it appeared that Gonzalez had been shot in the head and shoulder. Next to the body were four spent shell casings and one live unfirеd round. There was also a “wadded up” five-dollar bill, some change, and a wallet strewn around the room. Gonzalez had sustained five gunshot wounds, to his head, arm, and back; the cause of death was two gunshot wounds to the head.
In the early morning hours after the shooting, Torres was picked up by a taxi cab driver and the driver’s girlfriend, and Torres asked to be taken to the bus station in Atlanta. Torres agreed to pay the $65 dollar fare, and on the way to the bus station, he asked the couple to stop at a store and get him a bottle оf water and a pre-paid mobile phone card. During the drive, Torres instructed the couple not to turn around and look at him. Torres asked the girlfriend if he would be asked for identification in order to purchase the bus ticket. Once at the bus station, Torres requested that the driver buy him a bus ticket, explaining that he did not have any identification. Torres gave the driver money to purchase for him a ticket to California, which the driver did. The bus ticket cost about $300. Torres also paid for the cab ride and gave the driver a $260 tip. After law еnforcement officials determined that Torres was on a particular bus, Torres was detained at the bus’s layover in Birmingham, Alabama. Blood was found on the
1. Torres has not enumerated as error that the evidence at trial was insufficient to sustain his convictions; nevertheless, this Court has reviewed the evidence and finds that it was sufficient to enable a rational trier of fact to find Torres guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Torres contends that his trial counsel was ineffective because counsel “unreasonably eschewed a mental health defense, in light of [his] documented history of mеntal health related problems.”
In order to prevail on such claim, Torres must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), that is, that his counsel’s performance was deficient and that, but for the deficiency, there is a reasonable probability of a more favorable outсome at trial. Allen v. State, 293 Ga. 626, 627 (2) (748 SE2d 881) (2013). For Torres to meet the first prong of Strickland, he has to overcome the strong presumption that his trial counsel’s performance fell within the wide range of reasonable professional conduct and that counsel’s decisions were the result of reasonable professionаl judgment, the reasonableness of which is judged from counsel’s perspective at the time of trial and under the particular circumstances then existing in the case. Id. The second prong of Strickland requires that Torres show the reasonable probability that, absent any unprofessional errors оn counsel’s part, the result of his trial would have been different. Id. We are to accept the trial court’s factual findings and determinations as to credibility unless they are clearly erroneous, but we independently apply the legal principles to the facts. Id.
Following the motion-for-new-trial hearing, at which trial counsel was the sole testifying witness, the superior court entered its order denying Torres a new trial after concluding that trial counsel was not deficient in failing to present a mental health defense, and that any аlleged deficient performance by counsel did not so prejudice Torres that there was the reasonable likelihood that, but for such alleged errors, there would have been a different outcome at trial.
As a threshold matter, there is no dispute that Tоrres had some history of mental health problems. Indeed, following a court-ordered mental health evaluation and a report by Dr. Hughey, a consent order issued on September 22, 2009, finding Torres incompetent to stand trial. However, Torres’s mental health was reevaluated on January 21, 2011, by a forensic psychiatrist, Dr. Browning of Georgia Regional Hospital, who ultimately determined that Torres was then competent to stand trial and was criminally responsible at the time of his alleged commission of the murder and related crimes. In his report, Dr. Browning determined, inter alia, that although Torres was undoubtedly experiencing psychotic symptoms at the time of his admission to the hospital, it was unclear “if Schizophrenia is responsible or if Mr. Torres’s fifteen year history of regular marijuana usage caused the psyсhosis that was evident at the time of his admission,” and however, that it was clear that “Torres was faking at least some of his psychotic symptoms during his hospitalization.” Following Dr. Browning’s evaluation, Torres’s trial counsel requested an independent examination to be cоnducted by Dr. Ryback in July 2011. After receipt of a draft of Dr. Ryback’s report, which apparently contained the opinion that Torres was “not criminally responsible,” the following morning trial counsel sent Dr. Ryback an e-mail informing him that a mental health defense would not be рursued in Torres’s case.
Torres argues that trial counsel’s apparent rapid rejection of Dr. Ryback’s opinion suggests that counsel did not properly and adequately contemplate Dr. Ryback’s findings and the possibility of a mental health defense, and that it was objectively unreasonable that counsel would forgo such option when counsel’s own expert provided exculpating information and the issue was abandoned without further exploration. But, that was not shown to be the case.
Torres failed to show that trial counsel’s strategic choice not to pursue a mental health defense was deficient. Strickland, supra. The superior court was entitled to credit trial counsel’s uncontroverted testimony that Torres’s defense wаs selected after consultation with Torres, and that Dr. Ryback’s report would not have aided the defense. Jimmerson v. State, 289 Ga. 364, 368 (2) (a) (711 SE2d 660) (2011). A strategic choice which is made after thoughtful consideration will generally not support a claim of ineffective assistance of counsel. Freeman v. State, 295 Ga. 820, 825 (4) (764 SE2d 390) (2014). What is more, an insanity defense, or indeed, any mental health defense would have necessitated Torres admitting to committing the criminal acts; he could not simultaneously assert such a defense and a credible defense that he was not the perpetrator. Boykins v. State, 294 Ga. 277, 279 (2) (751 SE2d 811) (2013). Thе fact that in hindsight Torres now questions the efficacy of the chosen defense strategy does not establish ineffective assistance. Jimmerson, supra at 368 (2) (a). Simply, there is no valid basis upon which to conclude that the strategic choice of a defense at trial fell below reаsonable professional norms, and therefore, Torres’s ineffectiveness claim must fail.3
Judgments affirmed. All the Justices concur.
Decided April 20, 2015.
Long D. Vo, for appellant.
Layla H. Zon, District Attorney, Christopher D. Sperry, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.