Vasquez v. StateVasquez v. State
Christian Vasquez appeals from the denial of his motion for new trial after a jury found him guilty of malice murder, two counts of felony murder, aggravated assault, two counts of cruelty to children in the first degree, and concealing the death of another in connection with the death of his two-year-old daughter, Prisi Vasquez.1 He argues that the State failed to present sufficient
1. Viewed in the light most favorable to the jury‘s verdict, the evidence adduced at trial shows as follows. In February 2007, Christian Vasquez and Amy Ruiz were married2 and lived in a rented house in Gwinnett County with their two-year-old daughter, Prisi, and Ruiz‘s three-year-old son, J. E. In October 2006, Prisi and J. E. had been removed from the custody of Vasquez and Ruiz and placed in the custody of Ruiz‘s father pursuant to a juvenile court
Ruiz left their home at 7:30 on the morning of February 3 to babysit the daughter of her sister, Erica Arroyo.4 Vasquez stayed
At 9:36 a.m., Vasquez called Ruiz at Arroyo‘s house and asked her to come home because Prisi was sick.5 Ruiz told Arroyo, “I‘ve got to go,” and took Arroyo‘s daughter with her. Ruiz did not return to her house immediately, and she would later testify that Vasquez called her several times that morning.6 Ruiz ran several errands before returning home between 5:00 and 6:30 that evening.7
When Ruiz arrived home, Prisi was lying on the couch next to Vasquez and J. E. Vasquez was telling Prisi to wake up, but she did not respond. Ruiz went over to try to talk to Prisi and observed that she could make noises with her mouth but was unable to form words,
Ruiz asked Vasquez, “What did [you] do to my daughter?” Vasquez told her to “shut up” and that “he needed time.” Vasquez took Ruiz‘s keys and phone and then took Prisi away from Ruiz and went into the bedroom, barring Ruiz from coming into the room. He then stuffed Prisi‘s unclothed body into a trash bag and hid her in the attic through an entrance in the bedroom closet. Around 11:00 that night, Ruiz called Arroyo and left a voicemail in which she said, “Call me back. Something happened. Call me back.” Arroyo called Ruiz back later that night, but Ruiz did not answer.
The next morning, Sunday, February 4, Arroyo again called Ruiz. This time, Ruiz answered and asked for $100 in cash from Arroyo. Ruiz told Arroyo she needed the money to pay her electric bill, but she would later testify that she sought the money so that Vasquez could flee. Arroyo gave Ruiz the money she requested. That day, Ruiz also obtained a check from Vasquez‘s employer (Ruiz‘s uncle) for $110 and cashed it. Ruiz testified that Vasquez threatened
Ruiz did not inform Arroyo or any other members of her family that she and Vasquez were leaving, and her family became concerned when they were unable to contact her. Arroyo and other members of Ruiz‘s family went to her house on Tuesday, February 6. Upon entering the house, they observed food on the table, Prisi‘s car seat sitting in the living room, clothing strewn about the house, and a series of black bags left out in the house, which they found unusual because Ruiz normally kept a clean house. They also noticed an article of Prisi‘s clothing with a wet stain on it. Ruiz‘s family filed a missing person report that day concerning Vasquez, Ruiz, and the children, and Gwinnett County police responded to the home to investigate. Police entered the home, interviewed Ruiz‘s family members who were present, and took photographs of the home‘s living area and bedrooms. They also noticed a bottle of hydrogen peroxide and a bottle of children‘s Tylenol on the living
On February 5, 2007, the owner of the home came to collect rent. No one answered the door at the house. Two weeks later, having had no correspondence with Ruiz after trying to contact her, he went inside the house. He noticed that numerous items of clothing, furniture, and other personal belongings were in the house. At the end of February 2007, still having had no contact with Ruiz, the landlord cleaned out the house and rented it to new tenants. During this process, he did not go into the attic.
The new tenants later moved out, and the landlord decided to move into the house himself while making some upgrades and repairs. While living there, he noticed a foul odor in the house that he could not remove. He hired someone to help him with the smell,
In June 2007, Ruiz called Arroyo. She told Arroyo that she was in Mexico with Vasquez, J. E., and Prisi. Ruiz told Arroyo that she had cancer and that she had gone to Mexico for treatment. Arroyo questioned this, but offered to send a box of Prisi‘s clothes to Ruiz. Ruiz declined the offer, telling Arroyo that Vasquez‘s mother bought Prisi “anything she wants.” Ruiz told Arroyo that the kids were doing well, that they were at the beach, and that everyone was having a great time.
Arroyo also spoke to Ruiz by telephone in July 2007. During that call, Ruiz told Arroyo that she needed a passport and that she planned to leave Prisi in Mexico and return to the United States with J. E. Ruiz explained that she was not bringing Prisi because she would not listen to Ruiz.
Some time in mid-2008, Ruiz admitted to her father during a phone call that Prisi was dead and that her body was hidden in the
After this discussion, the detective went to the house and spoke with the landlord, informing him that he had reason to believe a homicide had occurred in the house. The landlord allowed the detective to enter the house, and, upon entering, the detective immediately recognized the smell of decaying flesh. Upon a search of the attic, the detective found Prisi‘s remains. Her body had been wrapped in four black garbage bags, hidden behind a joist in the attic, and covered by insulation. The detective contacted employees from the Gwinnett County Medical Examiner‘s Office, who came to the house. The detective and personnel from the medical examiner‘s
That day, Prisi‘s body was transported to the medical examiner‘s office for autopsy. The medical examiner established that the body was that of a young child between two and three years old. In addition to noting that the body was partially skeletonized and markedly decomposed, the medical examiner determined that the skull was fractured. The fracture, to the back left side of the skull, was a radiating fracture caused by a blunt impact. The fracture also included a displaced piece of bone, which the examiner determined would take “a significant force to break.” The medical examiner testified that skull trauma could result from a household accident but that the characteristics of the fracture as well as the fact that the body was concealed in plastic bags and hidden in the attic argued against a finding of accidental death. The examiner determined that the impact likely resulted in injury to the brain and trauma to the spinal cord and brain stem. The medical examiner testified that these injuries could be consistent with non-responsiveness in the extremities and an inability to respond when
On June 20, 2008, after the detective found Prisi‘s remains in the attic of the house, Ruiz‘s father called Ruiz. The call was recorded by law enforcement, and, in that call, Ruiz stated again that Prisi had been left in the attic on February 3, 2007. Ruiz told her father that she wanted to call 911 when she discovered that Prisi was injured but that “[t]hey weren‘t going to believe me. They were going to put me in jail. And they were going to take [J. E.] away from me. And also, I was going to get you guys into worse problems, and I didn‘t want my siblings to suffer.”
On June 23, 2008, the detective spoke to Ruiz by phone. In that call, Ruiz stated that Vasquez had wrapped Prisi‘s body in garbage bags and placed her in the attic. She also indicated that she was in Mexico with J. E., but not Vasquez. Ruiz told the detective that she and Vasquez had borrowed money from her sister and taken a bus to Mexico. Following the call, the detective took out charges against
In the summer of 2008, Arroyo traveled to Mexico so that she could bring J. E. back to the United States. Arroyo did not speak with Ruiz while she was in Mexico, and she picked up J. E. from other family members. J. E. returned to Gwinnett County with Arroyo and lived with her following a placement by the Gwinnett County Division of Family and Children Services (DFCS). On three occasions, J. E. told Arroyo that “he hit her — he hit her in the head” with “a tube.” Arroyo described J. E. as being “upset” when he told her this and that he told Arroyo that he was “scared and really afraid.” Arroyo testified that J. E. also acted scared around male members of her family. Arroyo began taking J. E. to therapy after these outbursts.
On August 29, 2008, J. E. underwent psychological testing requested by Gwinnett County DFCS. The psychologist
J. E. was also treated by a therapist eight to ten times between February and August 2009. Arroyo told the therapist that J. E. had
Ruiz returned to the United States on September 9, 2009. She turned herself in to law enforcement at the Texas-Mexico border on charges relating to Prisi‘s death. She was transferred to Gwinnett County on October 5, 2009, where she was booked into jail. While there, she executed an affidavit in support of Vasquez‘s extradition from Mexico. The parties stipulated that Vasquez was extradited from Mexico and booked into jail in Gwinnett County on January 17, 2013.
(a) Sufficiency of Evidence as to Child Cruelty Count.
Vasquez contends that the evidence presented by the State was
As we have previously discussed:
For purposes of this Code section, malice in the legal sense[ ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and [willful] doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.
(Citations and punctuation omitted.) Brewton v. State, 266 Ga. 160, 161 (2) (465 SE2d 668) (1996). We have further noted that “[m]alice, as an element of the crime of cruelty to children, can be shown by intentionally and unjustifiably delaying necessary medical attention for a child, as that delay may cause the child to suffer from cruel and excessive physical pain.” (Citation and punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006). With regard to the crime of cruelty to children, “criminal intent may be inferred from conduct before, during and after the commission of the crime.” Johnson v. State, 269 Ga. 632, 634 (501 SE2d 815) (1998).
Here, the State presented evidence that Prisi was two years old at the time of this incident. The testimony established that Vasquez hit Prisi over the head with a “tube.” This blow caused a fracture to Prisi‘s skull, ultimately resulting in her death. Ruiz testified that Vasquez then told her over a phone call that Prisi was “sick.” When Ruiz returned to the couple‘s home, she found Prisi alive but unresponsive, and Prisi later stopped breathing. Instead of seeking medical care or reporting Prisi‘s injury to any authority, Vasquez moved Prisi to the bedroom, placed her body in the attic, pressured
(b) Sufficiency of Evidence of Tolling of Statute of Limitation for Concealing the Death of Another.
Although Vasquez does not challenge the sufficiency of the evidence presented by the State as to the elements of the crime of concealing the death of another, he argues that the State failed to present sufficient evidence that the statute of limitation for that offense was tolled. He also argues that the statute of limitation applicable to the offense of concealing the death of another is four years because
Pretermitting whether
[t]o go in a clandestine manner out of the jurisdiction of the courts, or to lie concealed, in order to avoid their process. To hide, conceal, or absent oneself clandestinely, with the intent to avoid legal process. Postponing limitations. Fleeing from arresting or prosecuting officers of this state.
(Citation omitted.) Danuel, 262 Ga. at 352 (3).
Here, the evidence established that Vasquez concealed Prisi‘s death on February 3, 2007, by wrapping Prisi‘s body in trash bags and placing it in the attic. Vasquez (along with Ruiz and J. E.) boarded a bus in Gwinnett County on February 4, 2007, that was bound for Mexico. After turning herself in to law enforcement at the Texas-Mexico border in September 2009, Ruiz returned to Gwinnett County on October 5, 2009, where she was arrested. While there, she executed an affidavit in support of Vasquez‘s extradition from
The evidence recounted above authorized the jury to determine that Vasquez had absconded and that the statute of limitation was tolled from February 4, 2007, until January 17, 2013. The evidence established both the date on which Vasquez left Georgia (February 4, 2007) and the date he was returned by compulsory legal process (January 17, 2013). The evidence allowed the jury to infer that he remained outside of Georgia for the entire period between those dates and that he did so for the purpose of “conceal[ing] himself [so] that he [could not] be arrested.” (Citation, punctuation and emphasis omitted.) Danuel, 262 Ga. at 352 (2). Consequently, the jury was authorized to find that the statute of limitation on the offense of concealment of the death of another did not begin to run until January 17, 2013. As Vasquez was indicted on June 3, 2015, less than two-and-a-half years later, the jury was authorized to find that prosecution of this offense was not barred by either a four-year
(c) Sufficiency of Evidence Presented on Remaining Convictions.
Vasquez does not challenge the legal sufficiency of the evidence supporting his additional convictions. Nevertheless, in accordance with this Court‘s practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial and as summarized above was sufficient to authorize a rational jury to find Vasquez guilty beyond a reasonable doubt of each of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Claims of Plain Error in Jury Instructions.
Vasquez argues that the trial court erred in three ways with respect to the instructions it gave to the jury. As Vasquez made no objection to the jury charge as given by the trial court, we review the jury charge for plain error.10
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).
Vasquez argues that the trial court plainly erred by instructing the jury that the statute of limitation applicable to the offense of concealing the death of another was seven years instead of four years. Pretermitting whether this instruction was erroneous, Vasquez cannot show that the failure to instruct the jury as to a four-year statute of limitation affected the outcome of his trial. As we noted in Division 1 (b), the evidence presented by the State established that the statute of limitation was tolled from February 4, 2007, until January 17, 2013, and that Vasquez was indicted on June 3, 2015. The time that elapsed between the end of the tolling period and the date of the indictment was just over two-and-a-half years. Thus, regardless of whether a four-year or seven-year statute of limitation applied to the offense, the only evidence presented in the case regarding tolling showed that Vasquez was indicted for the offense of concealing the death of another within the limitation period, regardless of which one applied. Vasquez has not
(b) Jury Instruction Regarding Manner of Tolling of Statute of Limitation.
Vasquez also argues that the trial court plainly erred by erroneously instructing the jury as to the manner by which the statute of limitation could be tolled in this case. In its charge to the jury, the trial court instructed the jury that, as to the statute of limitation applicable to the non-murder counts of the indictment, the jury should “exclude from [its] calculation any period of time during which the evidence shows that . . . the defendant was not usually and publicly a resident within this state; [t]he person committing the crime is unknown or the crime is unknown” (emphasis supplied). Vasquez argues that this instruction was erroneous because the indictment alleged only that the statute of limitation was tolled for the periods during which the crime was unknown and in which Vasquez was not usually and publicly a
On appeal, we must review the jury charges as a whole. Scott v. State, 302 Ga. 29, 31 (2) (805 SE2d 40) (2017). In this case, we find no plain error in the instruction given. Taken as a whole, it is unlikely the jury would have understood that its verdict could be based on something other than the evidence of tolling that had been presented by the State. Young v. State, 305 Ga. 92, 96 (4) (823 SE2d 774) (2019). Significantly, the State presented no evidence or argument suggesting that there was any period in which Vasquez was unknown to the State after Prisi‘s death was discovered. Prisi‘s death remained unknown to the State until June 2008, when Ruiz‘s
Moreover, the record reflects that the trial court read the indictment to the jury and provided the indictment to the jury during its deliberations. The indictment included the State‘s tolling allegations. The trial court also instructed the jury regarding the State‘s burden to prove the essential elements of each offense and every material allegation of the indictment beyond a reasonable doubt and the jury‘s duty to acquit if it found that the State did not prove guilt beyond a reasonable doubt. Under such circumstances,
(c) Failure to Instruct Jury as to Corroboration of Accomplice Testimony.
Vasquez argues that the trial court plainly erred by failing to instruct the jury regarding the need to corroborate the testimony of an accomplice. We disagree.
In its charge to the jury, the trial court stated that “[t]he testimony of a single witness, if believed, is sufficient to establish a fact. Generally there is no legal requirement of corroboration of a witness provided you find the evidence to be sufficient.” Vasquez did not object to this charge, and he did not request that an instruction on accomplice corroboration be included in the trial court‘s charge to the jury.
The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony of a second witness[.]
The single-witness rule is the general rule and is a guiding principle of both the factfinder‘s role in evaluating the evidence presented at trial and the courts’ role in determining whether the State has presented sufficient evidence to support the charges against a defendant. In most cases, the rule allows the jury to find the defendant guilty in the face of conflicting or inconsistent evidence or on the basis of the uncorroborated testimony of a single witness. See Handley v. State, 289 Ga. 786, 786-787 (1) (716 SE2d 176) (2011) (construing former
Here, the record shows that many of the State‘s witnesses, including law enforcement personnel and experts, were not accomplices of Vasquez. Thus, because a single-witness instruction would have been proper as to their testimony, there was no error in the trial court‘s instruction on the single-witness rule.
However, there was also evidence to support a finding that Ruiz was an accomplice of Vasquez, particularly in the failure of both individuals to seek medical care for Prisi or report her injuries and subsequent death to authorities and in their joint efforts to leave their home and flee to Mexico. Such evidence is clearly the type of evidence our courts view as supporting the finding that one is an accomplice. See, e.g., Jones v. State, 268 Ga. 12, 14 (1) (483 SE2d 871) (1997) (witness‘s presence at crime and subsequent flight can support finding that witness was an accomplice); Jones v. State, 242 Ga. 893, 893-894 (1) (252 SE2d 394) (1979) (witness‘s presence, companionship, and conduct after the crime are circumstances from
However, the record makes clear that Vasquez intentionally relinquished his right to have the jury instructed as to the accomplice-corroboration requirement under
In this case, through our review of the record — including trial counsel‘s testimony at the hearing on Vasquez‘s motion for new trial, counsel‘s opening statement and closing argument, and his cross-examination of the State‘s witnesses — we can discern that counsel had a tactical reason for not requesting an accomplice-corroboration charge. At the hearing on Vasquez‘s motion for new trial, trial counsel was asked by the State whether he considered Ruiz‘s testimony to be accomplice testimony. Counsel replied, “No . . . our defense was she did it. She was responsible. And I didn‘t really want a jury hearing instructions that they were working together or that they were somehow in cahoots on this thing. Our defense was we were pointing fingers at [Ruiz], and that was it.” (Emphasis
In addition to counsel‘s testimony, the trial record reflects that Vasquez‘s trial counsel explicitly presented this theory of the case to the jury in his opening statement and closing argument and through
3. Claims of Ineffective Assistance of Counsel.
Vasquez argues that his trial counsel provided ineffective assistance due to his failure to object to (a) the admission of an exhibit that showed Vasquez had committed prior acts of child abuse
To prevail on his claims of ineffectiveness, Vasquez has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [Vasquez] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [Vasquez] must show a reasonable probability that, but for counsel‘s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
(Citations and punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804 SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)).
(a) Vasquez argues that he received ineffective assistance from his trial counsel due to counsel‘s failure to object to the admission of a juvenile court order that showed Vasquez committed prior acts of child abuse against J. E. Vasquez also argues his trial counsel was
Before trial, the trial court ruled that certain evidence of prior acts of child abuse committed by Vasquez against J. E. between February 7, 2007, and August 2008 was admissible under
Trial counsel testified at the hearing on Vasquez‘s motion for new trial that the juvenile court order was not covered by this agreement, as the agreement dealt only with allegations of abuse
Counsel also testified that the juvenile court order reflected allegations that Ruiz (and Vasquez) committed acts of abuse against J. E. Trial counsel testified that, even though the juvenile court order contained information that would be harmful to Vasquez‘s defense, he did not object to its admission because his theory of the case was that Ruiz, not Vasquez, killed Prisi. Trial counsel believed that the juvenile court order showing prior acts of abuse by Ruiz supported that theory.
The record reflects that Vasquez‘s trial counsel explicitly presented this theory of the case through other avenues, as well. In his opening statement, counsel suggested that Ruiz had coached J. E. to make incriminating statements against Vasquez and that other members of her family had aided Ruiz in framing Vasquez for Prisi‘s death even though they were aware that Ruiz had previously been physically abusive toward Prisi. Vasquez‘s trial counsel, in
To show that his lawyer‘s performance was deficient, [Vasquez] must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. This is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [Vasquez] bears the burden of
overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
(Citations and punctuation omitted.) State v. Spratlin, 305 Ga. 585, 591 (2) (826 SE2d 36) (2019).
Whether the potential upside of certain evidence — in this case, the juvenile court order establishing that Vasquez and Ruiz had committed prior acts of abuse against J. E. — exceeds its downside is a question of trial strategy, and Vasquez has made no showing that his lawyer‘s strategy was unreasonable. See Spratlin, 305 Ga. at 594 (2) (a). Specifically, in light of the testimony elicited during cross-examination of the psychologist, other evidence highlighting an alleged history of abuse by Ruiz, evidence attacking Ruiz‘s credibility, and evidence establishing Ruiz‘s motive to place blame for Prisi‘s death on Vasquez, we cannot say that no reasonable attorney would have pursued this trial strategy or used the
(b) Vasquez also argues that his trial counsel provided ineffective assistance by failing to object when the trial court instructed the jury that a seven-year statute of limitation applied to the offense of concealing the death of another. “However, for the same reasons that we concluded that [Vasquez] could not carry his burden to show prejudice on plain error review regarding this charge, we conclude that he cannot carry his burden to show prejudice on this ineffectiveness claim.” Hampton v. State, 302 Ga. 166, 172 (4) (b) (805 SE2d 902) (2017). Even if the jury had been instructed that a four-year statute of limitation applied to the offense of concealing the death of another, it still would have convicted Vasquez of that offense as the only evidence of tolling presented in the case showed that the indictment was brought
4. Merger of Malice Murder and Child Cruelty Offenses.
Vasquez argues that his convictions for child cruelty in the first degree should have merged with his conviction for malice murder. But, as we have previously held, under the Drinkard test,15 these two offenses do not merge.
Malice murder, but not cruelty to children [in the first degree], requires proof that the defendant caused the death of another human being. Cruelty to children [in the first degree], but not malice murder, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain. Therefore, each crime requires proof of at least one additional element which the other does not. Furthermore, the crimes of malice murder and cruelty to children [in the first degree] are not so closely related that multiple convictions are prohibited under other provisions of
OCGA § § 16-1-6 and16-1-7 . Accordingly, even if the same conduct establishes the commission of both malice murder and cruelty to children [in the first degree], the two crimes do not merge.
Judgment affirmed. All the Justices concur.
Decided June 20, 2019.
Murder. Gwinnett Superior Court. Before Judge W. Davis.
Jessica R. Towne, for appellant.
Daniel J. Porter, District Attorney, Richard A. Vandever, Lee F. Tittsworth, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
Notes
[P]rosecution for felonies [including concealment of the death of another] shall be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime.