Grullon v. State ( 2021 )

In the Supreme Court of Georgia
Decided: December 14, 2021
S21G0485. GRULLON v. THE STATE
LAGRUA, Justice.
In September 2017, a jury found Victor Grullon guilty of
trafficking heroin, and the trial court sentenced him to serve 30
years in prison. Grullon appealed, challenging the sufficiency of the
evidence and arguing that the trial court gave an erroneous jury
charge on deliberate ignorance. The Court of Appeals affirmed
Grullon’s conviction, concluding that the evidence was
constitutionally sufficient under Jackson v. Virginia, 443 U. S. 307(99 SCt 2781, 61 LE2d 560) (1979), and that Grullon did not show
“reversible error because he affirmatively stated to the trial court
that he had no objection after the jury was charged.” Grullon v.
State, 357 Ga. App. 695, 695 (849 SE2d 291) (2020). We granted
certiorari to decide whether the Court of Appeals correctly held that
Grullon affirmatively waived his claim that the trial court gave an
erroneous jury instruction on deliberate ignorance. Because we
answer this question in the negative, we reverse that portion of the
judgment of the Court of Appeals.
1. Pertinent Facts and Procedural History
(a) Factual Background
The underlying facts, as summarized by the Court of Appeals,
see Grullon, 357 Ga. App. at 696-697 (1), show that in early 2016,
the federal Drug Enforcement Administration, together with
various local law enforcement agencies, conducted an investigation
into Marcelo Enciso-Rodriguez. Law enforcement officers believed
Enciso-Rodriguez was acting as a middleman in a heroin trafficking
operation that involved a supplier in Mexico, known as “Mariachi,”
and buyers from New York and Philadelphia. The buyers would
drive to the metro Atlanta area and meet Enciso-Rodriguez at a
QuikTrip convenience store, where he would give them a car battery
in which heroin was concealed. As part of their investigation,
officers conducted surveillance on Enciso-Rodriguez through
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telephone wiretaps, a video camera mounted on a pole in the
QuikTrip parking lot, and a stake-out across the street from the
QuikTrip.
In January 2016, officers observed a transaction between
Enciso-Rodriguez and a man later determined to be Tomas
Hernandez, in which Enciso-Rodriguez gave Hernandez a car
battery. Before and after the meeting with Hernandez, Enciso-
Rodriguez spoke with Mariachi, using coded phrases referring to
Hernandez and to the amount of money involved in the transaction.
On February 5, 2016, Mariachi and Enciso-Rodriguez spoke on
the phone about another transaction. Apparently referring to a new
buyer, Mariachi told Enciso-Rodriguez that “he left today” and
would arrive to meet with Enciso-Rodriguez at some point the
following day, possibly in the morning.
On the morning of February 6, Enciso-Rodriguez had a series
of telephone conversations with a man, later identified as Grullon,
who asked for directions to the QuikTrip. Grullon and Hernandez,
the buyer from the January transaction, arrived at the QuikTrip in
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a vehicle with New York plates registered to Grullon. Enciso-
Rodriguez gave Hernandez a car battery, which Hernandez placed
in the vehicle, and Hernandez and Grullon drove away. Officers
followed the vehicle and stopped it shortly thereafter for a tag
violation. When officers stopped the vehicle, Hernandez was
driving, and Grullon was seated in the front passenger seat.
Hernandez consented to a search of the vehicle. He told the officers
that he and Grullon had been in Atlanta for two days visiting a
friend and that the battery in the back of the vehicle belonged to
him. When the officers began asking questions about the car battery,
Grullon appeared as though he might “pass out.” The officers cut
apart the battery and found six bricks of a substance inside, which
were later tested and found to be a mixture containing heroin,
weighing 465 grams.
(b) Trial court proceedings
In January 2017, Grullon was indicted by a Gwinnett County
grand jury, together with Encisco-Rodriguez and Hernandez, 1 on
1 Encisco-Rodriguez and Hernandez were also indicted for one count of
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one count of trafficking in morphine, opium, or heroin under OCGA
§ 16-13-31 (b). 2 Grullon’s case proceeded to trial in September 2017.
During the charge conference, the State requested that the trial
court give the following jury instruction on deliberate ignorance, 3
citing Perez-Castillo v. State, 257 Ga. App. 633, 635 (572 SE2d 657)
(2002):
The element of knowledge, intent, may be satisfied by
inferences drawn from proof that a defendant deliberately
closed his eyes to what would otherwise have been
obvious to him. A finding beyond a reasonable doubt of
conscious purpose to avoid enlightenment would permit
an inference of knowledge. Stated another way, a
defendant’s knowledge of a fact may be inferred from
willful blindness to the existence of the fact. Again,
whether or not you draw such an inference is a matter
conspiracy to commit trafficking heroin.
2 Under OCGA § 16-13-31 (b), a “person who sells, manufactures,
delivers, brings into this state, or has possession of four grams or more of any
[of a list of specified] substance[s], . . . including heroin, . . . or four grams or
more of any mixture containing any such substance . . . commits the felony
offense of trafficking in illegal drugs[.]”
3 The State had previously informed the trial court during a hearing on
Grullon’s motion for directed verdict that it would be asking for a jury
instruction on deliberate ignorance. The State argued that such a charge was
appropriate in this case because, even if Grullon was not “fully apprised of
what [wa]s in that battery,” he at least knew something was “amiss.” Grullon
objected, contending that, for this charge to be proper, the State would have
been required to “show that there were signs that [Grullon] should have
known” what was in the battery, but the State failed to make this showing or
otherwise show “a sufficient factual basis” for this charge.
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solely within your discretion.
Grullon objected to the State’s requested charge, asserting that this
charge should not be given in circumstances where the evidence
“points to either actual knowledge or no knowledge on the part of
the defendant,” and the State had argued that Grullon had a basis
for actual knowledge in this case. The trial court overruled Grullon’s
objection and gave the State’s requested charge on deliberate
ignorance.
When the trial court completed the final instructions to the
jury, the trial court asked the parties whether there were any
exceptions, and Grullon’s trial counsel replied, “No, sir, Judge.”
Grullon was convicted by the jury of trafficking in 28 or more grams
of a mixture containing heroin under OCGA § 16-13-31 (b) (3) and
sentenced to 30 years in prison.
Grullon subsequently filed a motion for new trial, asserting
that there was insufficient evidence for the jury to find he was in
constructive possession of the drugs and that the trial court gave an
erroneous jury charge on the issue of deliberate ignorance. With
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respect to the jury charge, Grullon argued that the trial court erred
in giving this instruction because it unconstitutionally reduced the
State’s burden of proof by conflating the “knowledge” and “intent”
elements of the offense – a different argument than the one he raised
when he objected to the instruction at the charge conference. The
trial court denied Grullon’s motion for new trial, and Grullon
appealed his conviction to the Court of Appeals.
(c) Grullon’s appeal to the Court of Appeals
On appeal, Grullon challenged the sufficiency of the evidence
and asserted that the trial court erred in giving the deliberate
ignorance charge “because the charge equated intent with
knowledge.” Grullon, 357 Ga. App. at 700 (2). The State conceded
on appeal that this charge was erroneous, but argued that the error
was harmless. See id. See also Matos-Bautista v. State, 353 Ga.
App. 773, 778 (1) (839 SE2d 260) (2020) (“[A] charge on deliberate
ignorance that equates intent with knowledge, or which tends to
confuse those concepts, is erroneous.”). Without addressing whether
the trial court committed an obvious error in giving this charge or if
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any error was harmful, the Court of Appeals concluded that
Grullon did not preserve this claim of error for regular
appellate review. Although he objected to the charge at
the charge conference (albeit on different grounds),
Grullon did not object to the charge at the time it was
given. For that reason, his claim that the trial court erred
by giving the charge is subject to review only for plain
error.
And Grullon cannot show plain error, which among other
things requires a showing that the error has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. State v. Kelly, 290
Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation omitted).
After giving the charge to the jury, the trial court asked if
Grullon had any objection to it, and his trial counsel
responded “no.” By affirmatively stating that he had no
objection to the charge to the jury, Grullon waived any
claim that the charge was improper, meaning that he
cannot show plain error. See Lee v. State, 347 Ga. App.
508, 512 (2) (b) (820 SE2d 147) (2018).
Grullon, 357 Ga. App. at 700 (2) (punctuation omitted). The Court
of Appeals accordingly affirmed the trial court. See id.
For the reasons that follow, we conclude that the Court of
Appeals erred in identifying affirmative waiver under the facts of
this case, and, thus, we reverse this division of the Court of Appeals’
decision and remand the case for reconsideration of other elements
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of plain error review. 4
2. Analysis
(a) Grullon did not affirmatively waive his claim that the
trial court erred in giving an erroneous jury instruction.
Under OCGA § 17-8-58,
(a) Any party who objects to any portion of the charge to
the jury or the failure to charge the jury shall inform the
court of the specific objection and the grounds for such
objection before the jury retires to deliberate. Such
objections shall be done outside of the jury’s hearing and
presence.
(b) Failure to object in accordance with subsection (a) of
this Code section shall preclude appellate review of such
portion of the jury charge, unless such portion of the jury
charge constitutes plain error which affects substantial
rights of the parties. Such plain error may be considered
on appeal even if it was not brought to the court’s
attention as provided in subsection (a) of this Code
section.
In accordance with subsection (a), a party who objects to any of
the charges given to the jury is obligated to raise that objection
before the jury retires to deliberate. See OCGA § 17-8-58 (a). See
4Grullon did not seek certiorari review of the Court of Appeals’ holding
that the evidence was sufficient, see Grullon, 357 Ga. App. at 696-700 (1), and
that part of the Court of Appeals’ judgment stands.
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also Cheddersingh v. State, 290 Ga. 680, 682 (2) (724 SE2d 366)
(2012) (holding that it was the appellant’s “duty to inform the court
of the specific objection and the grounds for such objection before the
jury retired to deliberate” (punctuation omitted)). Here, Grullon did
not reiterate his objection to the deliberate ignorance charge after
the trial court gave the final instructions to the jury in accordance
with OCGA § 17-8-58 (a); additionally, the ground for his objection
at trial was different than the ground he asserted on appeal. See
Nalls v. State, 304 Ga. 168, 172 (2) (a) (815 SE2d 38) (2018) (noting
that at the charge conference, the appellant’s counsel stated that she
did not want a certain charge to be given, but “she did not object to
the charge at the time that it was given[;] [f]or that reason,
[Appellant’s] claim that the trial court erred by failing to limit the
charge is subject to review only for plain error.”). Grullon therefore
failed to preserve this claim for ordinary appellate review. However,
the alleged error is still reviewed for plain error on appeal. See
OCGA § 17-8-58 (b). See also Cheddersingh, 290 Ga. at 683 (2).
“[U]nder OCGA § 17-8-58 (b), appellate review for plain error is
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required whenever an appealing party properly asserts an error in
jury instructions.” Kelly, 290 Ga. at 32-33 (1)-(2) (a). In other words,
when an error in the jury instruction is enumerated and argued on
appeal, the appellate court is required to conduct a plain error
analysis. See id. at 32-33 (2) (a). See also King v. State, 300 Ga. 180,
182 (1) (794 SE2d 110) (2016) (holding that when the appellant
raises trial court instructional error for the first time on appeal, the
purported “failure to give these charges is reviewed for plain error”).
For purposes of undertaking the plain error analysis, this
Court established the following test for determining whether there
is plain error in jury instructions under OCGA § 17-8-58 (b):
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
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proceedings.
Kelly, 290 Ga. at 33 (2) (a) (citation and punctuation omitted;
emphasis in original).
In this case, the Court of Appeals did not consider any other
elements of the plain error test delineated in Kelly because the court
concluded that the first requirement was not met: Grullon had
“waived any claim that the charge was improper” by “affirmatively
stating that he had no objection to the charge” after it was given to
the jury. Grullon, 357 Ga. App. at 700 (2). On certiorari review,
Grullon contends and the State concedes that the Court of Appeals
erred in making this ruling. We agree.
The parties do not dispute that the trial court’s jury instruction
on deliberate ignorance was clearly erroneous. And, although
Grullon stated no objection to the charge after it was given – thereby
forfeiting ordinary appellate review – this does not necessarily
establish “affirmative waiver” of the error on appeal. See
Cheddersingh, 290 Ga. at 684 (2). To constitute an affirmative
waiver, the appellant’s argument that the trial court “deviat[ed]
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from a legal rule must have been intentionally relinquished or
abandoned” by the appellant. Id. (punctuation omitted).
Under the plain error analysis articulated in Kelly, an
objection is intentionally relinquished or abandoned if it
is “affirmatively waived.” Applying the standard
articulated in United States v. Olano, 507 U. S. 725 (113
SCt 1770, 123 LE2d 508) (1993), we have contrasted such
a waiver – the intentional relinquishment of a known
right – with “forfeiture,” which is the mere “failure to
make the timely assertion of the right.” An affirmative
waiver may occur, for example, when a defendant
requests a specific jury instruction but later withdraws
such request; explicitly requests a jury instruction that he
later argues on appeal should not have been given; or
objects to a charge that he later argues on appeal should
have been given. In such circumstances, the defendant
has invited the alleged error, and it therefore provides no
basis for reversal.
Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019)
(citations and punctuation omitted).
Grullon objected to the deliberate ignorance charge at two
points during trial before the trial court charged the jury. And,
while he did not object again after the final instructions were given,
that “does not show that [Grullon] intentionally relinquished” his
known rights with regard to the deliberate ignorance instruction.
13
Cheddersingh, 290 Ga. at 684 (2) (holding that “the failure to object
is more appropriately described as a forfeiture of the right”).
“Generally, counsel’s silence at a juncture when a request for – or
objection to – a jury instruction might have been made will be
considered merely a forfeiture for which plain error review remains
available.” Vasquez, 306 Ga. at 229 (2) (c). While Grullon’s counsel
did not remain silent, there was also no specific waiver of any
objections to the deliberate ignorance instruction in particular. See,
e.g., Collins v. State, 308 Ga. 515, 519 (2) (842 SE2d 275) (2020)
(reviewing claim for plain error, but not relying on affirmative
waiver, where “[a]t the conclusion of the jury charge, the trial court
asked, ‘Are there any objections to the charge . . . on behalf of the
defense?’ Appellant’s counsel replied, ‘No, your honor’”); Guajardo v.
State, 290 Ga. 172, 175-176 (3) (718 SE2d 292) (2011) (reviewing
claim for plain error, but not relying on affirmative waiver, where
“after the trial court recharged the jury, the trial court specifically
asked counsel if there were ‘any exceptions to the Court’s answer to
the questions.’ Appellants’ trial counsel answered, ‘No, Your
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Honor’”); Mike v. State, 358 Ga. App. 113, 114 (1) (853 SE2d 887)
(2021) (reviewing claim for plain error, but not relying on
affirmative waiver, where, “[f]ollowing the trial court’s instructions
to the jury, defense counsel stated she had no objections to the
charge”).
Moreover, we discern no tactical reason for Grullon’s trial
counsel not to object to the deliberate ignorance charge after it was
given in the final instructions to the jury, particularly because he
had previously objected to the instruction during trial and been
informed by the trial court that the charge would be given. See
Vasquez, 306 Ga. at 230 (2) (c) (“[T]he appellate court can conclude
that the defendant’s right – or objection – to a particular instruction
was intentionally relinquished if the appellate court can discern a
tactical reason on the part of the defense for failing to request (or
object to, as the case may be) a specific jury instruction.” (Citation
and punctuation omitted)).
Additionally, while the Court of Appeals relied on Lee in
concluding that Grullon waived any claim that the deliberate
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ignorance charge was improper in this case, Lee is distinguishable.
See Lee, 347 Ga. App. at 512 (2) (b). In Lee, the Court of Appeals
concluded that the defendant “waived any claim that the trial court
improperly referenced [a] stipulation in its jury charge” because the
defendant had previously stipulated that he did not challenge the
chain of custody with respect to certain evidence presented by the
State and “affirmatively stated that he had no objection to a
stipulation charge as to the chain of custody.” Id. Here, Grullon
never affirmatively stated that he had no objection to the specific
deliberate ignorance charge he now challenges, and indeed he raised
an objection to that charge earlier at trial.
Because Grullon’s claim of error was not affirmatively waived
and survives the first step of plain error review, the Court of Appeals
must now consider other parts of the plain error analysis, in
particular whether the error that the State has conceded probably
affected the outcome of the proceedings. See Kelly, 290 Ga. at 33 (2)
(a) (holding that “the error must have affected the appellant’s
substantial rights, which in the ordinary case means he must
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demonstrate that it affected the outcome of the trial court
proceedings”). Accordingly, we reverse the portion of the judgment
of the Court of Appeals concluding that there was affirmative waiver
and remand the case for the court to consider other elements of plain
error review. See id.Judgment reversed in part and case remanded. All the Justices
concur.
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