CLEMENTS v. THE STATE (Two Cases) ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: December 19, 2023
S23A0857. CLEMENTS v. THE STATE.
S23A1030. VELAZQUEZ v. THE STATE.
LAGRUA, Justice.
Appellants London Clements and Eric Velazquez were jointly
tried for murder and other offenses connected to the shooting death
of Hall County Deputy Sheriff Blane Dixon on July 7, 2019.
Clements was convicted of felony murder, and Velazquez was
convicted of malice murder and other crimes.1 Although the two co-
1 On August 19, 2019, a Hall County grand jury indicted Hector Garcia-
Solis, Brayan Cruz, Clements, and Velazquez—individually and as parties
concerned in the commission of a crime—for the following counts: malice
murder (Count 1—Garcia-Solis, Cruz, Velazquez, and Clements); felony
murder predicated on aggravated assault on a peace officer (Count 2—Garcia-
Solis, Cruz, Velazquez, and Clements); felony murder predicated on conspiracy
to commit robbery and burglary (Count 3—Garcia-Solis, Cruz, Velazquez, and
Clements); aggravated assault on a peace officer (Count 4—Garcia-Solis, Cruz,
Velazquez, and Clements); conspiracy to commit robbery and burglary (Count
5—Garcia-Solis, Cruz, Velazquez, and Clements); burglary in the second
degree (Counts 7, 8, 9, 10, 11, and 14—Garcia-Solis and Velazquez); entering
an automobile (Count 12—Garcia-Solis and Velazquez); and criminal attempt
to commit burglary, second degree (Count 13—Garcia-Solis and Velazquez).
defendants raise different enumerations of error on appeal, their
appeals have been consolidated for purposes of issuing an opinion.
On appeal, Clements contends that: (1) the trial court erred by
denying his motion for a directed verdict on the conspiracy to commit
robbery and burglary count and the felony murder count predicated
thereon; and (2) the trial court failed to exercise its discretion to
Cruz entered a guilty plea to Counts 4 and 5 and testified for the State
at trial. Garcia-Solis, Velazquez, and Clements were jointly tried from June 21
to July 8, 2021. At trial, the trial court granted Clements’s motion for directed
verdict as to Counts 1, 2, and 4, and the jury found Clements guilty on Counts
3 and 5. The jury found Velazquez guilty on all counts. Garcia-Solis was also
found guilty on all counts, but his case is not part of this appeal. As to
Clements, the trial court sentenced Clements to life in prison on the felony
murder count (Count 3), and the conspiracy to commit robbery and burglary
count (Count 5) merged with the felony murder count for sentencing purposes.
As to Velazquez, the trial court sentenced Velazquez to life in prison on the
malice murder count (Count 1), plus a total of 35 consecutive years to serve for
Counts 5 and 7-14. The trial court merged the aggravated assault count (Count
4) and purported to merge the felony murder counts (Counts 2 and 3) into the
malice murder conviction (Count 1), but the felony murder verdicts were
actually “vacated by operation of law.” Graves v. State, 298 Ga. 551, 556 (4)
(783 SE2d 891) (2016). “This error in nomenclature was harmless, however,
because” Velazquez “was not convicted of or sentenced for the felony murder
counts.” Worthen v. State, 304 Ga. 862, 865 (2) (823 SE2d 291) (2019).
Clements and Velazquez filed timely motions for new trial, which they
amended through new counsel. After holding evidentiary hearings on the
motions for new trial, the trial court denied the motions on August 30, 2022.
Clements and Velazquez filed timely notices of appeal to this Court, and their
cases were docketed to the August 2023 term of this Court and submitted for
a decision on the briefs.
2
grant his motion for new trial on the general grounds. Velazquez
contends on appeal that: (1) there was insufficient evidence to
support his conviction for malice murder and felony murder
predicated on aggravated assault on a peace officer; (2) the trial
court erred by denying his motion for a directed verdict as there was
insufficient corroboration of his co-conspirators’ testimony; (3) the
trial court erred by denying Velazquez’s motion to transfer venue;
(4) the trial court erred by denying Velazquez’s motion for mistrial;
and (5) Velazquez received ineffective assistance of counsel in
violation of his Sixth and Fourteenth Amendment rights under the
United States Constitution. For the reasons that follow, we affirm
the convictions in both cases.
The evidence presented at trial showed that, on the morning of
July 2, 2019, two residents of Hall County discovered that their
vehicles had been stolen overnight and reported the thefts to law
enforcement. On the afternoon of July 7, law enforcement officers
discovered the stolen vehicles—a 2009 red Dodge Caliber and a 2002
silver Toyota Avalon—parked behind a thrift store in Hall County.
3
Because the officers suspected the vehicles had been utilized in a
series of burglaries committed the day before, the officers did not
immediately inform the vehicle owners that their vehicles had been
located; instead, as detailed below, the officers affixed GPS trackers
to these vehicles in hopes of apprehending the suspects involved.
(a) The July 6 burglaries and initial investigation
During the early morning hours of July 6, several break-ins
occurred at automobile dealerships and pawnshops in the Hall
County area. Because most of the pawnshops were equipped with
security systems to monitor after-hours activity, the burglaries and
attempted burglaries at the pawnshops—namely, Swap and Trade
Pawn, Foxhole Guns and Archery, and Double Deuce Pawn and
Gun—were the first incidents to be reported to law enforcement.
Based on surveillance video recordings from the pawnshops, law
enforcement officers were able to establish that, between 3:15 a.m.
and 5:20 a.m. on July 6, two suspects—each carrying firearms and
wearing dark clothing, a mask, and gloves—broke into or attempted
4
to break into the pawnshops.2 The surveillance video recordings also
established that the suspects gained entry to at least one of the
pawnshops by attaching a strap to the front doors of the shop,
connecting it to the rear tailgate of a pickup truck, and pulling the
truck forward to force open the doors. Two crossbows were stolen
from Swap and Trade Pawn and 23 firearms—including handguns,
rifles, and revolvers—and ammunition were stolen from Double
Deuce Pawn and Gun. 3
While investigating the pawnshop burglaries on the morning
of July 6, law enforcement officers learned that several automobile
dealerships had also been broken into overnight, including Los
Plebes Auto Sales, Texano Auto Sales, Texas Trucks and Autos, and
Eddie’s Auto Sales. 4 Francisco Cuella, the owner of Los Plebes Auto
2 The owner of Foxhole Guns and Archery testified that, because he had
installed steel roll down doors and bars on the exterior of the building, the
suspects attempting to break into the pawnshop were unable to gain access
inside.
3 The owner of Swap and Trade Pawn testified that he also sold guns at
his pawnshop, but “they [we]re all locked in safes” and thus were inaccessible.
4 The owners of Texas Trucks and Autos and Eddie’s Auto Sales testified
that, although their businesses were burglarized and some of their property
was damaged, nothing was stolen from their dealerships.
5
Sales, testified that, when he arrived at the dealership around 9:00
a.m. on July 6, he realized that five pickup trucks had been stolen
from his lot, including a 2015 Dodge Ram 2500, which law
enforcement officers later established was the pickup truck used in
the burglary at Swap and Trade Pawn. Cuella testified that one of
the other stolen pickup trucks was discovered later that morning in
a nearby neighborhood. 5 According to Cuella and law enforcement
officers investigating the thefts, a doorbell camera installed on the
exterior of one of the houses in this neighborhood captured video
recordings of the stolen pickup truck driving into the neighborhood,
followed by a red Dodge Caliber. The video recordings also showed
two men “jump out of the truck to get in a red Caliber.” Based on
surveillance video recordings from Los Plebes, law enforcement
officers were able to establish that the dealership was broken into
around 1:23 a.m. on July 6, that the suspects were wearing dark
clothing, face masks, and gloves, and that at least one of the suspects
5 The remaining pickup trucks were located by law enforcement officers
throughout the day.
6
was armed with a handgun.
Celia Hernandez, the office manager for Texano Auto Sales,
testified that Texano was also burglarized during the early morning
hours of July 6. Based on surveillance video recordings from Texano,
law enforcement officers determined that two suspects—armed with
handguns and wearing dark clothing, masks, and gloves—broke into
the dealership’s office, at which point, one of the suspects started
going through files inside the office. When Hernandez examined the
office after the burglary, she noticed that a file had been dropped on
the floor that related to “an incident with [Garcia-Solis] in their
business.” Hernandez testified that, in 2018, Garcia-Solis broke into
a pickup truck located at the dealership—an incident for which
Garcia-Solis was later charged—and Hernandez kept a file on the
incident. Hernandez advised law enforcement officers investigating
the July 6 burglary that Garcia-Solis might be involved because she
discovered this file on the floor and because she noted in the video
recording “the interest [the man] took in reading [the file].”
According to Hernandez, no cars were stolen from the dealership
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during the July 6 burglary because the exit was blocked with other
cars.
Holly Lester, a DeKalb County crime scene investigator who
resided in Hall County at the time, testified that, between the late-
night hours of July 5 and early morning hours of July 6, “crime scene
investigative tools” and “various police equipment”—including a
radio, gun belt, flashlight, bulletproof vest, and baton—were stolen
from her county-owned van, which was parked in front of her
residence. At trial, Lester reviewed images from the surveillance
video recordings of the burglary at Double Deuce Pawn and Gun on
July 6, and she confirmed that a bulletproof vest worn by one of the
suspects in the video and the baton he was carrying appeared to be
“consistent with” the vest and baton “missing out of [her] van.”
After compiling and reviewing the surveillance video
recordings from the impacted dealerships and pawnshops, law
enforcement officers were able to establish that the same suspects
likely committed all the burglaries, as they were wearing “the same
masks and clothing in all of the thefts.” On the afternoon of July 7,
8
Investigator Jeremy Grindle with the Hall County Sheriff’s
Department discovered the stolen red Dodge Caliber and silver
Toyota Avalon parked behind a thrift store in Hall County.
Investigator Grindle testified that, because he had seen a red Dodge
in the doorbell video recording on July 6, he “believed that the red
Dodge Caliber was involved in these . . . thefts.” Investigator Grindle
and other law enforcement officers affixed trackers “to the bottom of
the frame of the car[s]” to “emit[] a GPS signal” that law enforcement
officers could monitor. Later that evening, Investigator Grindle met
with the oncoming patrol shift, including Deputy Dixon and his
commanding officer, Sergeant Charles Hewell, to explain the
tracking system and what to do in the event the stolen cars started
moving.
(b) The events leading up to the identification and
apprehension of Velazquez, Garcia-Solis, Clements, and
Cruz
(i) The events of July 6
Antony Macias—a friend of the co-defendants—testified at
trial that he learned about the automobile dealership and pawnshop
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burglaries on July 6 while he was at his uncle’s 50-acre ranch in Hall
County preparing for a family party. Macias testified that a friend
named “Adrian”6 contacted him around 12:00 p.m. to ask if Garcia-
Solis and Velazquez could come shoot guns at the ranch that
afternoon, and a few minutes later, Velazquez, Garcia-Solis, and
Adrian “pulled up” to the ranch in a “red Dodge car.” When
Velazquez and Garcia-Solis arrived at the ranch, they told Macias
that “they had some stolen guns” and asked to shoot them at the
ranch. Macias testified that Velazquez and Garcia-Solis opened the
trunk of the Dodge, and there were “two handguns and a shotgun”
inside. One of the handguns was a gray .45-caliber that “had a little
like skull” or “helmet” on it, and the other was a 9-millimeter
handgun. Macias also saw Adrian carrying a handgun that
Velazquez and Garcia-Solis had given to him, and Macias observed
an AK-47 rifle on the backseat of the car. Macias asked Velazquez
and Garcia-Solis where they had gotten the guns, and Velazquez
told him that “they had tried to go rob some Foxhole gun store and
6 Macias testified that he did not know Adrian’s last name.
10
that when they threw a rock that the alarm went off and they got
scared.” Velazquez and Garcia-Solis then told Macias that they
“jumped the street to the other pawnshop where they got those
guns.” 7 Macias testified that Velazquez and Garcia-Solis explained
to him that “they had reversed a truck and tied the door to the truck
or something like that, and they yanked it and . . . that’s how they
got the guns.” Macias’s understanding was that Velazquez and
Garcia-Solis had stolen about 20 guns, and they “wanted to sell” the
guns to make money. Macias testified that Velazquez, Garcia-Solis,
and Adrian stayed at the ranch shooting until about 1:30 or 2:00
p.m.
Later that afternoon, Cruz and Clements met up with Adrian
at Adrian’s house, and Cruz testified that Adrian showed them “two
Glock pistols” he had in his possession. Cruz testified that he was
impressed by how “clean” and “nice” the pistols were. According to
Cruz, Clements was also “amazed” by the guns, and “he really
7 The owner of Double Deuce Pawn and Gun testified that his pawnshop
is located across the street from Foxhole Guns and Archery.
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wanted one.” Cruz and Clements hung out with Adrian for a few
hours, “smok[ing] weed” and watching “videos of the guns.”
That night, Cruz and his friend, Jiovanny Castillo, went to a
party, and as they were driving home around 9:00 p.m., the road was
closed by a police roadblock. Castillo was driving, and when he saw
the police, he turned the car around because he did not have a
driver’s license. The police followed the car. Castillo “took off” and
“lost the police,” but he ended up crashing the car. “The closest house
was Adrian’s,” so the two men walked to Adrian’s house. Cruz
testified that, as they were approaching Adrian’s house, he saw
three people standing outside—Velazquez, Garcia-Solis, and
Adrian—and each of them had a gun. Garcia-Solis was also wearing
a bulletproof vest. Velazquez and Garcia-Solis told Cruz and Castillo
that “they robbed a pawnshop and how they got a truck and tied it
on the door and started getting guns.” At trial, Cruz watched the
surveillance video recording from the burglary at Double Deuce
Pawn and Gun and identified Velazquez and Garcia-Solis as the
men who were burglarizing the pawnshop based on their “height”
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and body-type. Cruz and Castillo testified that, around 10:00 p.m.
that night, Garcia-Solis gave Cruz, Castillo, and Velazquez a ride in
a “four-door,” red Dodge, which Garcia-Solis told them was stolen,
and Velazquez and Garcia-Solis also told them more about how they
had “hit a lick” and “robbed the pawnshop” the night before. Garcia-
Solis then drove the group to a thrift shop and parked behind it.
Garcia-Solis gave Cruz the key to the Dodge in case Cruz wanted to
use the car, and they walked over to Garcia-Solis’s house. After that,
Cruz “caught a taxi back home.”
(ii) The events of July 7
According to Cruz, on the morning of July 7, he and Clements
got together to “smok[e] weed and chill[],” and while they were
hanging out, they started talking about how Velazquez and Garcia-
Solis “did a big robbery” and “robbed a pawnshop.” Cruz observed
that Clements was “eager,” and Clements told Cruz that he wanted
to “try to get a gun,” as well. Cruz and Clements texted Garcia-Solis
about trying “to go hit a lick, to do a robbery, a burglary.” Garcia-
Solis asked Cruz to “pick him up, because he thought [Cruz] had the
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red Dodge” since he gave Cruz the key to it the night before.
Around 6:00 p.m., Cruz and Clements “caught a taxi” to Garcia-
Solis’s house, but Garcia-Solis was not there. Cruz and Clements
then walked over to Castillo’s house, where they hung out “[c]hilling,
smoking.” Clements started communicating “through Snap-Chat”
with Velazquez, after which Cruz and Clements told Castillo that
they were “going to hit a lick at the pawn store” to “steal the guns
and sell them.” Castillo testified that the group was planning to
wear “[g]loves, mask[s], all black” and that they were going “to go
and hit these pawnshops” in a “[s]tolo”—another term for a “stolen
vehicle.” Cruz and Clements secured a ride to Velazquez’s house
with a friend, and before they left Castillo’s house, they asked if he
wanted to come with them “[t]o hit a lick.” Castillo testified that he
“had butterflies in his stomach,” and he “didn’t want to go.” When
Cruz and Clements arrived at Velazquez’s house that night, Garcia-
Solis was already there, and the group discussed “hitting a lick” and
how they needed to wear masks and gloves to ensure they did not
leave their “fingerprints or DNA on the stolen vehicle” or anywhere
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else.
(iii) The police chase and subsequent shootings
Around 10:00 p.m. on July 7, a friend drove Cruz, Clements,
Velazquez, and Garcia-Solis to the thrift store where the stolen cars
were parked. The men got into the Dodge and “gear[ed] up” by
“putting on gloves, masks, [and] getting ready.” Cruz testified that
Velazquez and Garcia-Solis also had handguns with them.
According to Cruz, the group realized the Dodge did not have any
gas, so they “just hopped in a gray Toyota” that was also parked
behind the thrift store, as well. Velazquez was driving, Garcia-Solis
was in the front passenger seat, Clements was in the backseat
behind Garcia-Solis, and Cruz was in the backseat behind
Velazquez. The group decided to “ride around and see what [they]
could spot.” According to Cruz, as soon as they turned out of the
thrift store and started driving up the street, a law enforcement
officer pulled up behind them and “start[ed] flashing his lights.”
Cruz testified that Velazquez kept driving, and a “police truck”
drove up and “parked right in front of [them], and [they] went [i]n
15
the other lane” and “lost him.” Cruz said he started “panicking” and
told Velazquez to pull over because he “didn’t want to get in that
much trouble,” but Clements and Garcia-Solis told Velazquez to
keep driving. Velazquez started “hitting . . . mailboxes” and
eventually ran into a telephone pole. Cruz testified that, when
Velazquez hit the telephone pole, “[they] all ran,” and Velazquez and
Garcia-Solis were armed at the time. According to Cruz, as he ran
away from the crash site, Clements was behind him, followed by
Garcia-Solis. Surveillance video recordings from a nearby
laundromat also confirmed that the defendants fled the car crash
together.
Cruz testified that Deputy Dixon, the victim in this case who
was later shot and killed by Garcia-Solis, was running after them,
and at that point, Cruz started running into the yards of the
residences in the area, “jumping” over fences. Cruz saw a flashlight,
assumed it was a police officer, and hid under a shed behind one of
the houses. While Cruz was under the shed, he “heard the officer
give [Garcia-Solis] instructions like put your hands up, put your
16
hands up.” Cruz testified that “[i]t got quiet for a few seconds,” and
then, he heard gunshots. Cruz “thought the police were shooting.”
Cruz testified that he stayed under the shed all night.
Sergeant Hewell testified that he came on shift on the evening
of July 7, shortly after the stolen Dodge and Toyota had been located
and the GPS tracking systems had been affixed to these vehicles.
According to Sergeant Hewell, he and Deputy Dixon were keeping a
watch on the vehicles, and as soon as one of the stolen cars—the
Toyota Avalon—started to move away from its location behind the
thrift store, he advised Deputy Dixon to follow it. Minutes later,
Deputy Dixon alerted Sergeant Hewell that he had located and was
behind the vehicle, and Sergeant Hewell joined Deputy Dixon and
attempted to block the path of the Toyota. The suspects were able to
get away, but Deputy Dixon and Sergeant Hewell continued their
pursuit. According to Sergeant Hewell, the Toyota ultimately
crashed into a telephone pole, and when he reached the crash site,
Sergeant Hewell saw Deputy Dixon and the suspects running from
the site of the crash. Sergeant Hewell then “exited [his] vehicle and
17
gave chase behind them.”
Sergeant Howell started following the suspects into the
adjacent neighborhood, “hopping chain-link fences” and “running
behind these houses.” As Sergeant Hewell was running through the
area, he heard Deputy Dixon yell, “Hey, Sarge, I have one.”
Sergeant Hewell testified that he ran towards Deputy Dixon’s voice
and overheard Deputy Dixon give the suspect commands. As
Sergeant Hewell got closer, he heard “shots fired from the suspect.”
Sergeant Hewell then heard Deputy Dixon say, “I’m hit.”
The video recordings from Deputy Dixon’s body camera, which
were admitted into evidence through the testimony of GBI Special
Agent Jamie Abercrombie at trial, showed that Garcia-Solis was
standing at the corner of a house when Deputy Dixon made contact
with him and that Garcia-Solis had something in his hand. Agent
Abercrombie testified that the video recording also reflected that
Deputy Dixon gave Garcia-Solis commands to show his hands, but
Garcia-Solis did not follow the commands and walked behind the
house. According to Agent Abercrombie, the video recording then
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showed a “muzzle flash from [Garcia-Solis’s] gun as he t[ook] the
first shot at Deputy Dixon.” The first shot was “followed by four
more” shots. Deputy Dixon then moved up to the porch of the house,
and “two additional shots [we]re fired before Deputy Dixon beg[an]
to return fire himself.”
According to Sergeant Hewell, when he got to the house where
Deputy Dixon had been shot, “the suspect was not there,” so
Sergeant Hewell “began to run as fast as [he] could” to try and locate
the suspect. As Sergeant Hewell was running, he came “face to face”
with Garcia-Solis, who ran “away from [him] across the street.”
Sergeant Hewell gave Garcia-Solis commands to “show [his] hands
[and] stop moving,” but Garcia-Solis did not comply. Sergeant
Hewell started shooting at Garcia-Solis and eventually “saw him
fall.” Sergeant Hewell then called for a medical unit, and Garcia-
Solis was transported to the hospital. Garcia-Solis received a
gunshot wound to the head near his left eye and survived. Deputy
Dixon was shot once in the abdomen below his bulletproof vest. He
was also transported to the hospital by law enforcement officers,
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where—as the medical examiner confirmed at trial—he died from
the gunshot wound to his abdomen.
(iv) The events following the shootings
Macias testified that, around 11:00 p.m. on the night of July 7,
he was parked outside a restaurant in Hall County when Clements
walked up to his truck. Macias noted that Clements was “sweaty”
and moving around in a “fast type of way,” and Macias thought that
Clements seemed like he was in “shock” and “scared.” Moments
later, Macias and Clements saw “the cops” pass the restaurant, and
Clements asked Macias if they could get into his truck. Clements got
into the backseat and told Macias, “I think [Garcia-Solis] just killed
a cop,” and explained that a “cop car” was following them, Velazquez
was driving, Garcia-Solis was in the passenger seat, and Cruz was
also with them. Clements told Macias that “they were going to go hit
licks that night.” Clements asked Macias to drive him to his house,
but Macias did not want to drive that far and risk “get[ting] pulled
over.” Macias drove Clements to Castillo’s house, “which is one
minute from the restaurant.” When they arrived at Castillo’s house,
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Castillo testified that Clements was “all sweaty, all scared” and
asked if he could borrow some clothes. Castillo testified that
Clements told him “they crashed, they were running”—specifically,
that “they were in a car that crashed that was being chased by
police,” that they all took off running in different directions, and that
Clements “heard gunshots when he was running.” According to
Castillo, Clements also told Castillo that “he had been there when
[Garcia-Solis] was shot” and “he was there when [Garcia-Solis] shot
a cop.” Castillo later revised his testimony on cross examination,
stating that Clements only told him that Garcia-Solis had been shot,
not that a police officer had been shot.
Macias testified that he and Clements stayed at Castillo’s
house “for a little bit,” “trying to call [Garcia-Solis] and [Velazquez]
to see if they were ok or see if anything had happened.” When
Velazquez answered, Velazquez asked Macias if Garcia-Solis was
with him, and Macias replied that he was not there and they had
been unable to reach him. During the phone call, Velazquez told
Macias that “they were in the car and that the cop started following
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them.” Velazquez said that he “was the one driving,” but “if [he] had
a gun, [he] would have shot the cop [him]self, because the one that
had two guns at the time was [Garcia-Solis].” Velazquez explained
to Macias that he originally had “a gun on him,” but “he had dropped
it when he was getting out [of] the car” and thought Garcia-Solis had
picked it up. Macias testified that, after this conversation, he left
Castillo’s house and went home.
According to Macias, on the morning of July 8, Velazquez
texted him to ask if Velazquez could “hide the guns at the [ranch];”
Macias agreed and met Velazquez there. Macias testified that
Velazquez had about 20 guns, which they hid in the woods, and
Velazquez told Macias that he “had a buyer” for the guns. Macias
and Velazquez also hid an AK-47 rifle that Velazquez wanted to
keep for himself inside the tire of a truck located “close to the gate”
leading into the ranch. Macias observed that the .45-caliber
handgun with the skull or helmet on it, which he had seen Garcia-
Solis using on the afternoon of July 6, was not among the firearms
they were hiding. Macias testified that, approximately two days
22
after assisting Velazquez with hiding the guns at the ranch, Macias
was “picked up and questioned by the GBI” about his involvement
in the crimes.
(v) The subsequent investigation and arrests
In the early morning hours of July 8, GBI Agents Taylor
Lawrence and Elaina Coffee-Honea learned about “an officer
involved shooting involving multiple suspects” in Hall County.
When the agents arrived at the crime scene and started their
investigation, they discovered shell casings on the porch of a house
from Deputy Dixon’s service revolver, as well as his hat and
flashlight. They also found 9-millimeter shell casings and a .45-
caliber shell casing from the suspect’s weapons, as well as a 1911
Sig Sauer .45-caliber handgun, a black glove, a key to a Dodge
Caliber, and shell casings from Sergeant Hewell’s service revolver.
GBI Agent Sarah Vanholm, a firearms examiner, testified that the
.45-caliber Sig Sauer recovered at the scene had a helmet on the
handle, and she further testified that, when she examined the fatal
bullet removed from Deputy Dixon’s body during his autopsy, she
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established that the bullet was fired from this weapon. Law
enforcement officers also confirmed that the .45-caliber Sig Sauer
was stolen from Double Deuce Pawn on July 6.
On the morning of July 8, law enforcement officers
investigating the crime scene area “spotted” Cruz under the shed
where he had been hiding overnight and arrested him. GBI Special
Agent Jamie Abercrombie testified that he interviewed Cruz
following his arrest. Initially, Cruz “minimized and den[ied] his
involvement in the crimes,” but after “a lengthy amount of time,” he
“was forthcoming.” Cruz provided Agent Abercrombie with the
names of those who were with him the night before—Garcia-Solis,
Clements, and Velazquez. Shortly thereafter, law enforcement
officers executed a search warrant at Clements’s residence, and
Clements was arrested and taken into custody. Later that day, law
enforcement officers executed a search warrant at Velazquez’s
residence, and he was arrested and taken into custody. During the
search, law enforcement officers located plastic kitchen gloves
similar to the gloves worn by one of the suspects during the
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burglaries on July 6.
During Agent Abercrombie’s investigation, he also learned that
Macias potentially had information regarding the burglaries on July
6, and he interviewed Macias. Macias agreed to take Agent
Abercrombie to the ranch and showed him “the location of the guns
and where they were hidden,” advising that he hid them with the
assistance of Velazquez. Macias also showed Agent Abercrombie a
video he had taken on his cell phone of Velazquez shooting guns at
the ranch. Agent Abercrombie obtained a search warrant for the
property, and after a search of the ranch, law enforcement officers
collected ammunition, weapons, and some of the property that had
been taken from Lester’s van. Law enforcement officers confirmed
that the weapons and ammunition had been stolen during the
pawnshop burglaries on July 6.
At trial, Donna Lee—one of Garcia-Solis’s trauma nurses—
testified that, while Garcia-Solis was in the hospital being treated
for his gunshot wound, he talked to her about the events leading up
to the death of Deputy Dixon on July 7. Garcia-Solis explained that,
25
after the car chase began, the group’s plan had been to leave one guy
to shoot, while all the others ran. He then told her that he was the
one who stayed and shot Deputy Dixon.
Garcia-Solis also testified at trial and admitted to the
following: (1) he was one of the individuals who appeared in the
surveillance video recordings presented at trial of the automobile
dealership and pawnshop burglaries committed on July 6; (2) he was
responsible for stealing weapons and other items during the
burglaries; (3) he was armed during the burglaries; (4) Velazquez
was with him during the burglaries; (5) Clements, Cruz, and
Velazquez were with him on the night of July 7, and they planned
to “hit a lick;” (6) he shot and killed Deputy Dixon; and (7) he
committed a prior burglary at Texano Auto Sales in 2018.
After the State finished presenting evidence at trial, Garcia-
Solis, Velazquez, and Clements moved for directed verdicts of
acquittal on Count 3 – felony murder predicated on conspiracy to
commit robbery and burglary and Count 5 – conspiracy to commit
robbery and burglary. Clements also moved for a directed verdict on
26
Count 1 – malice murder, Count 2 – felony murder predicated on
aggravated assault on a peace officer, and Count 4 – aggravated
assault on a peace officer. Velazquez joined Clements’s motion. As
to Clements, the trial court granted his motion for a directed verdict
on the malice murder, aggravated assault, and felony murder
predicated on aggravated assault counts, but denied his motion as
to the conspiracy to commit robbery and burglary count and the
felony murder count predicated on conspiracy to commit robbery and
burglary. The jury later convicted Clements of conspiracy to commit
robbery and burglary and felony murder predicated on conspiracy to
commit robbery and burglary. As to Velazquez, the trial court
denied his motion for a directed verdict, and the jury later convicted
Velazquez of all counts.
Case No. S23A0857
1. On appeal, Clements contends that the trial court erred by
denying his motion for a directed verdict as to the conspiracy to
commit robbery and burglary count (Count 5) and the corresponding
felony murder count (Count 3) for the following reasons: (a) because
27
the defendants conspired to commit only burglaries, not robberies
and burglaries, see OCGA §§ 16-7-1 and 16-8-40; 8 and (b) because it
was not reasonably foreseeable that a law enforcement officer would
be killed as the result of a conspiracy to commit burglaries,
particularly burglaries of unoccupied businesses. We see no merit to
these claims.
The standard of review for the denial of a motion for a
directed verdict of acquittal is the same as for
determining the sufficiency of the evidence to support a
conviction. Under this review, we leave to the trier of fact
the resolution of conflicts or inconsistencies in the
evidence, credibility of witnesses, and reasonable
inferences to be derived from the facts, we do not reweigh
the evidence, and as long as there is some competent
evidence, even though contradicted, to support each fact
necessary to make out the State’s case, the jury’s verdict
will be upheld.
8 A person commits the offense of burglary when, “without authority and
with intent to commit a felony or theft therein, he or she enters or remains
within an occupied, unoccupied, or vacant dwelling house of another” or
“building” of another. OCGA § 16-7-1 (b) and (c). And
a person commits the offense of robbery when, with intent to
commit theft, he takes property of another from the person or the
immediate presence of another: (1) [b]y use of force; (2) [b]y
intimidation, by the use of threat or coercion, or by placing such
person in fear of immediate serious bodily injury to himself or to
another; or (3) [b]y sudden snatching.
OCGA § 16-8-40 (a).
28
Ellington v. State, 314 Ga. 335, 339 (2) (877 SE2d 221) (2022)
(citations and punctuation omitted).
(a) As an initial matter, we note that the conspiracy to commit
robbery and burglary count “merged for sentencing purposes” with
the felony murder count, and thus, Clements’s challenge to the
denial of his motion for a directed verdict on the conspiracy to
commit robbery and burglary count is moot. Ellington, 314 Ga. at
340 (2). See also Eggleston v. State, 309 Ga. 888, 891 (848 SE2d 853)
(2020) (holding that, because the aggravated assault counts merged
with the felony murder count for sentencing purposes, the
appellant’s challenge to the sufficiency of the evidence on the
aggravated assault counts was moot). We therefore limit our review
to the one count for which Clements was convicted and sentenced—
felony murder predicated on conspiracy to commit robbery and
burglary.
(b) A person commits felony murder when, “in the commission
of a felony, he or she causes the death of another human being
irrespective of malice.” OCGA § 16-5-1 (c). “The causation element
29
requires proof of proximate cause. Under the proximate-cause
standard, the defendant is liable for the reasonably foreseeable
results of criminal conduct if there is no sufficient, independent, and
unforeseen intervening cause.” Wilson v. State, 315 Ga. 728, 733 (4)
(883 SE2d 802) (2023) (citations and punctuation omitted).
Determining whether it was reasonably foreseeable that death could
result from the predicate crime requires considering “the elements
of the felony not in the abstract, but in the actual circumstances in
which the felony was committed.” Treadaway v. State, 308 Ga. 882,
885 (1) (843 SE2d 784) (2020). In this case, it was reasonable to
foresee that the dangerous criminal activities Clements and his co-
conspirators were engaging in could lead to someone’s death.
The evidence established that, on July 7, Clements and Cruz
contacted Garcia-Solis and arranged to accompany him and
Velazquez to “hit a lick,” and they told their friend, Castillo, that
they were “going to hit a lick at the pawn store” in a “stolen vehicle”
to “steal [] guns and sell them.” The evidence also established that,
when these plans were made, Clements and Cruz knew Garcia-Solis
30
and Velazquez had broken into several automobile dealerships and
pawnshops in the same area the night before and had stolen vehicles
and more than 20 firearms, making increased police involvement
foreseeable. And, as Clements concedes on appeal, when he and his
co-conspirators embarked on this criminal venture, they were
traveling in a stolen car, they were wearing masks, gloves, and dark
clothing, and two of them were carrying loaded firearms, supporting
a finding that Clements and his co-conspirators were prepared to
take property by force if they were to encounter someone.
Under these circumstances, it was reasonably foreseeable that
Clements and his co-conspirators could encounter law enforcement
and that someone could be killed during the commission of these
crimes. See Martin v. State, 310 Ga. 658, 661 (1) (852 SE2d 834)
(2020) (holding that it was not unforeseeable that “someone might
get shot during the commission of such an obviously dangerous and
illegal enterprise”) (citation omitted). In other words, the evidence
authorized the jury to conclude that a person’s death was “a probable
and or natural consequence” of the criminal conduct, Eubanks v.
31
State, __ Ga. __, __ (2) (a) (ii) ( __ SE2d __ ) (Case No. S23A0519,
decided October 24, 2023), and the trial court did not err by denying
Clements’s motion for directed verdict with respect to the felony
murder predicated on conspiracy to commit robbery and burglary
count.
2. Clements next contends that the trial court failed to
exercise its discretion as the “thirteenth juror” in denying his motion
for new trial because the verdict was “contrary to the evidence and
strongly against the weight of the evidence.” “That argument
implicates the ‘general grounds’ for obtaining a new trial under
OCGA §§ 5-5-20 and 5-5-21.”9 King v. State, 316 Ga. 611, 615 (2)
(889 SE2d 851) (2023).
When these so-called general grounds are properly raised
in a timely motion for new trial, the trial judge must
exercise a broad discretion to sit as a thirteenth juror.
This role requires the judge to consider matters typically
9 OCGA § 5-5-20 provides that, “[i]n any case when the verdict of a jury
is found contrary to the evidence and the principles of justice and equity, the
judge presiding may grant a new trial before another jury.” OCGA § 5-5-21
provides that “[t]he presiding judge may exercise a sound discretion in
granting or refusing new trials in cases where the verdict may be decidedly
and strongly against the weight of the evidence even though there may appear
to be some slight evidence in favor of the finding.”
32
reserved to the jury, including conflicts in the evidence,
witness credibility, and the weight of the evidence.
Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023) (citations
and punctuation omitted). See also Strother v. State, 305 Ga. 838,
843 (3) (828 SE2d 327) (2019) (“In exercising his discretion as the
thirteenth juror, the trial judge must consider some of the things
that he cannot when assessing the legal sufficiency of the evidence,
including any conflicts in the evidence, the credibility of witnesses,
and the weight of the evidence.”) (citation and punctuation omitted).
“But as an appellate court, we do not independently review the
record as a thirteenth juror,” and “[t]he decision to grant or refuse
to grant a new trial on the general grounds is vested solely in the
trial court.” Ward v. State, 316 Ga. 295, 299 (3) (888 SE2d 75) (2023)
(citation and punctuation omitted). See also Strother, 305 Ga. at 843(3) (explaining that “this Court does not sit as an arbiter of the
general grounds, which are solely within the discretion of the trial
court”). And “[w]e presume, in the absence of evidence to the
33
contrary, that the trial court did properly exercise such discretion.”
Ward, 316 Ga. at 299 (3) (citation and punctuation omitted).
We conclude that the trial court exercised its discretion as the
thirteenth juror here. During the hearing on Clements’s motion for
new trial and in the trial court’s order denying the motion, the trial
court “expressly rejected” Clements’s “general grounds claim,” King,
316 Ga. at 616 (2), and stated that it reviewed and weighed the
evidence presented, assessed the credibility of the witnesses, and
“acting as the thirteenth juror,” concluded that the State presented
sufficient evidence to support the jury’s verdict and “to find []
Clements guilty beyond a reasonable doubt.” Clements has “offered
no basis for concluding otherwise.” Ward, 316 Ga. at 299 (3). And,
to the extent a sufficiency analysis is also required for this general
grounds claim, see King, 316 Ga. at 616 (2) n.8, we concluded in
Division 1 that the evidence presented against Clements was
“constitutionally sufficient to affirm his convictions” in this case. Id..
Accordingly, this claim fails.
34
Case No. S23A1030
3. Velazquez contends that the evidence was insufficient as
a matter of constitutional due process to sustain his convictions for
malice murder (Count 1) and felony murder predicated on
aggravated assault on a peace officer (Count 2).10 Velazquez argues
that no evidence was presented to show that the defendants had a
plan to shoot someone on the night of July 7 or that Velazquez knew
Garcia-Solis was going to shoot Deputy Dixon. Velazquez further
argues that he was the first one to exit the vehicle following the
crash and that he ran away from the scene, demonstrating that he
had abandoned “any and all criminal intent” and was trying to run
away and hide. We disagree.
When assessing a challenge to the sufficiency of the
evidence as a matter of constitutional due process, the
evidence presented at trial is viewed in the light most
favorable to the verdicts to determine whether any
10 As noted earlier in the opinion, Velazquez’s felony murder conviction
predicated on aggravated assault on a peace officer was “vacated by operation
of law,” Graves, 298 Ga. at 556 (4), and Velazquez’s aggravated assault on a
peace officer count merged with the malice murder count. Consequently,
Velazquez was not “convicted of or sentenced” for these counts, Worthen, 304
Ga. at 865 (2), and his challenge to the sufficiency of the evidence as to these
counts is moot. See Collett v. State, 305 Ga. 853, 855 n.2 (828 SE2d 362) (2019).
35
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt of all the crimes of which he
was convicted. In making this determination, we do not
evaluate witness credibility, resolve inconsistencies in the
evidence, or assess the weight of the evidence; these tasks
are left to the sole discretion of the jury. The jury’s
verdicts will be upheld as long as some competent
evidence, even if contradicted, supports each fact
necessary to make out the State’s case.
Ridley, 315 Ga. at 455 (2) (citing Jones v. State, 304 Ga. 594, 598 (2)
(820 SE2d 696 (2018)). See also Jackson v. Virginia, 443 U.S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Applying that
standard here and viewing the evidence in the light most favorable
to the verdicts, we conclude that the evidence was sufficient as a
matter of constitutional due process to support Velazquez’s
conviction for malice murder.
“A person commits the offense of murder when he unlawfully
and with malice aforethought, either express or implied, causes the
death of another human being.” OCGA § 16-5-1 (a). In this case,
Velazquez was charged individually and as a party concerned in the
commission of malice murder, and thus, the State did not need to
prove that Velazquez fatally shot Deputy Dixon—“it was enough to
36
prove that he was a party to the crime.” Ward, 316 Ga. at 298 (2).
[U]nder OCGA § 16-2-20 (a), “[e]very person concerned in
the commission of a crime is a party thereto and may be
charged with and convicted of commission of the crime.”
Conviction as a party to a crime requires proof that the
defendant shared a common criminal intent with the
direct perpetrator of the crimes. A jury may infer a
common criminal intent from the defendant’s presence,
companionship, and conduct with the other perpetrator
before, during, and after the crimes.
Felts v. State, 311 Ga. 547, 552 (2) (858 SE2d 708) (2021) (citations
and punctuation omitted).
In this case, the State presented evidence showing that
Velazquez “shared a common criminal intent” with Garcia-Solis
before, during, and after the shooting of Deputy Dixon. Felts, 311
Ga. at 552 (2). The evidence established that, on July 6, Velazquez
and Garcia-Solis armed and masked themselves and committed a
series of burglaries in which they stole ammunition and a large
number of firearms. The next day, they conspired with Clements
and Cruz to continue committing such crimes—i.e., hitting “licks”—
which several witnesses described as committing robberies,
burglaries, or both. On the night of July 7, Velazquez, Garcia-Solis,
37
Cruz, and Clements went to the thrift store where the stolen Dodge
and Toyota were parked, and they entered one of the vehicles and
“geared up” by “putting on gloves, masks, [and] getting ready.”
Velazquez and Garcia-Solis were also armed with handguns.
Velazquez drove the stolen vehicle that night, and as law
enforcement officers attempted to stop the stolen vehicle, Velazquez
kept driving, ultimately resulting in a car chase, a crash, and a foot
chase. Surveillance video recordings from a laundromat adjacent to
the crash site demonstrated that Velazquez ran away in the same
direction as Clements, Cruz, and Garcia-Solis. Garcia-Solis also
testified that Velazquez was with him around the time of the
shooting. Additionally, after the shooting, Velazquez spoke to
Macias on the phone and told Macias that he had a gun that night,
he dropped it when he got out of the car after the crash, and he knew
Garcia-Solis also had a gun and probably picked up his gun, as well.
Velazquez also told Macias that, “if [he] had a gun, [he] would have
shot the cop [him]self, because the one that had two guns at the time
was [Garcia-Solis].” The day after the shooting, Velazquez took the
38
firearms he and Garcia-Solis had stolen on July 6 and hid them at
Macias’s ranch. Velazquez told Macias that he was still planning to
sell the firearms and was saving a stolen AK-47 rifle for himself.
Based on this evidence, the jury was authorized to find that
Velazquez “shared a common criminal intent” with Garcia-Solis and
was a party to the malice murder of Deputy Dixon. Felts, 311 Ga. at
553 (2). And, thus, the evidence was sufficient to sustain the jury’s
verdict on the malice murder count, and this claim fails.
4. Velazquez also contends that the trial court erred in
denying his motion for a directed verdict as to Counts 3, 5, and 7
through 14 because the testimony of his co-conspirators was not
corroborated as required by OCGA § 24-14-8.11 The record reflects
that, at trial, Velazquez did not move for a directed verdict as to
11 Pursuant to OCGA § 24-14-8,
[t]he testimony of a single witness is generally sufficient to
establish a fact. However, in certain cases, including prosecutions
for treason, prosecutions for perjury, and 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, except in prosecutions for treason.
39
Counts 7 through 14, and thus, Velazquez’s argument with respect
to those counts was not preserved for our review. Additionally,
because—as noted in Division 3—Velazquez’s felony murder
conviction predicated on conspiracy to commit robbery and burglary
(Count 3) was “vacated by operation of law,” Graves, 298 Ga. at 556(4), his challenge to the denial of his motion for a directed verdict as
to that count is moot. See Collett, 305 Ga. at 855 n.2. Thus, we
review only the trial court’s denial of Velazquez’s motion on Count 5
– conspiracy to commit robbery and burglary.
When reviewing the denial of a motion for directed
verdict, we view all of the evidence presented at trial in
the light most favorable to the verdicts and ask whether
any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt of the crimes of which
he was convicted.
Ward, 316 Ga. at 300 (4) (citation and punctuation omitted).
Velazquez argues that his motion for a directed verdict as to the
conspiracy to commit robbery and burglary count should have been
granted because (1) there was no “independent[,] properly admitted
corroborating evidence that there was a plan to ‘hit a lick’ on the
40
evening of July 7”; (2) Velazquez “was not involved in discussions
that took place” about committing any crimes that night; and (3) the
trial testimony demonstrated that “the plan was simply to drive
around on the night of July 7[.]” We see no merit to this claim.
As detailed in Division 3, the evidence presented in this case
was sufficient to support Velazquez’s conviction for conspiracy to
commit burglary and robbery and was also sufficient to corroborate
his co-conspirators’ testimony as required by OCGA § 24-14-8.
Although OCGA § 24-14-8 provides that corroboration is
required to support a guilty verdict in “felony cases where
the only witness is an accomplice,” only slight evidence of
corroboration is required. The necessary corroboration
may consist entirely of circumstantial evidence, and
evidence of the defendant’s conduct before and after the
crime was committed may give rise to an inference that
he participated in the crime.
Huff v. State, 300 Ga. 807, 809 (1) (796 SE2d 688) (2017) (citations
and punctuation omitted).
Not one, but two of Velazquez’s accomplices testified at trial—
Cruz and Garcia-Solis—and sufficiently corroborated one another’s
testimony about Velazquez’s involvement in planning and executing
41
the crimes committed on July 6 and his part in planning the similar
crimes the defendants hoped to commit on July 7. Additionally,
Velazquez’s own statements to Macias after the shooting on July 7—
i.e., that he had been with Garcia-Solis and Clements that night and
that he would have shot the “the cop” himself if he still had a gun on
him—was corroborating evidence of Velazquez’s “conduct before and
after the crime was committed.” Huff, 300 Ga. at 809 (1). Macias
also testified about how he assisted Velazquez the next day in hiding
the stolen firearms—firearms which the evidence established were
stolen from a pawnshop on July 6. This testimony also corroborated
Velazquez’s conviction in this case. See id.“Whether accomplice testimony has been sufficiently
corroborated is a question for the jury, and even slight corroborating
evidence of a defendant’s participation in a crime is sufficient.”
Williams v. State, 313 Ga. 325, 329 (1) (869 SE2d 389) (2022). The
evidence as recited above, which related to Velazquez’s conduct
before, during, and after the crimes, connected Velazquez to the
crimes charged, “was constitutionally sufficient to support”
42
Velazquez’s conviction for conspiracy to commit robbery and
burglary, Williams, 313 Ga. at 329 (1), and satisfied the statutory
requirement under OCGA § 24-14-8 that “corroborating
circumstances” support Velazquez’s guilty verdict. See Huff, 300
Ga. at 809 (1).
5. Velazquez next contends that the trial court erred in
denying his motion to transfer venue under OCGA § 17-7-150.12 We
disagree.
12 This statute provides that
[t]he defendant, in any criminal case in which a trial by jury is
provided, may move in writing for a change of venue, whenever, in
the defendant’s or defense counsel’s judgment, an impartial jury
cannot be obtained in the county where the crime is alleged to have
been committed. Upon the hearing of the motion it shall not be
necessary to examine all persons in the county liable to serve on
juries, but the judge shall hear evidence by affidavit or oral
testimony in support of or against the motion. If, from the evidence
submitted, the judge is satisfied that an impartial jury cannot be
obtained to try the case, the judge shall grant a change in venue.
The judge shall transfer the case to any county that may be agreed
upon by the prosecuting attorney and the defendant or the defense
counsel, to be tried in the county agreed upon. The judge has the
discretion to reject any county agreed upon; if a county is not thus
agreed upon, or if the judge, in the exercise of discretion, rejects a
county agreed upon, the judge shall select such county as in the
judge’s judgment will afford a fair and impartial jury to try the
case and have it transferred accordingly.
OCGA § 17-7-150 (a) (1) (A).
43
Prior to trial, Garcia-Solis filed several pretrial motions,
including a motion to transfer venue, and Velazquez joined the
motions. The trial court held a hearing on the motion to transfer
venue in June 2020, and at the hearing, Garcia-Solis tendered two
witnesses from the Hall County Public Defender’s Office—an
investigator and a legal assistant—to testify about their online
research of media coverage related to the case and their personal
experiences with community publicity related to the death of Deputy
Dixon, such as memorials and similar displays. The trial court
denied the motion in a written order, advising that it was not
prevented “from inquiring if there is actual prejudice to a degree
that renders a fair trial impossible at the time a jury is selected.”
Following jury selection at trial, Garcia-Solis renewed his motion to
transfer venue, which Velazquez joined, and the trial court denied
the motion. On appeal, Velazquez asserts that the trial court abused
its discretion in denying the motion because there was a high
likelihood of prejudice and because he could not receive a fair trial
44
in Hall County due to the pretrial publicity and the posted
community memorials to Deputy Dixon.
To succeed on a motion for change of venue, “a defendant
must show either that the setting of the trial was
inherently prejudicial or that the jury selection process
showed actual prejudice to a degree that rendered a fair
trial impossible.” The decision to grant or deny a motion
for change of venue will not be disturbed absent an abuse
of discretion.
Moss v. State, 305 Ga. 878, 881 (2) (828 SE2d 309) (2019) (quoting
Heidt v. State, 292 Ga. 343, 348 (4) (736 SE2d 384) (2013)). We see
no abuse of discretion here.
With respect to “inherent prejudice,” this Court has said that,
“even in cases of widespread pretrial publicity, situations where
such publicity has rendered a trial setting inherently prejudicial are
extremely rare.” Heidt, 292 Ga. at 348 (4) (citation and punctuation
omitted). To demonstrate “inherent prejudice,” the “record must
establish that the publicity contained information that was unduly
extensive, factually incorrect, inflammatory or reflective of an
atmosphere of hostility.” Id.45
Here, Velazquez asserts that the local newspaper—which has
a print subscription base of 17,500—published and posted articles
about this case on its Facebook account, which has 30,000 followers.
Velazquez also asserts that community displays and memorials to
Deputy Dixon were posted “throughout Hall County.” However,
Velazquez has not shown or argued that any of these articles or
memorials “contained information that was unduly extensive,
factually incorrect, inflammatory or reflective of an atmosphere of
hostility.” Heidt, 292 Ga. at 348 (4). In short, he has made no
showing of inherent prejudice, and the record does not support such
a claim.
Additionally, Velazquez has made no showing “that the jury
selection process showed actual prejudice to a degree that rendered
a fair trial impossible.” Heidt, 292 Ga. at 348 (4).
As to actual prejudice, . . . the question is not the number
of jurors who had heard about the case or had knowledge
of those involved in the case, but whether those jurors
who had heard about the case could lay aside their
opinions and render a verdict based on the evidence.
Moss, 305 Ga.at 881 (2) (citation and punctuation omitted).
46
Here, after noting that 19 jurors were excused for cause,
Velazquez argues that the trial court used “flawed logic” in its
consideration of the pretrial publicity and failed to properly consider
the memorials to Deputy Dixon in calculating the probability of
Velazquez’s ability to receive a fair trial and in denying his request
to transfer venue. However, the record shows that the trial court
applied the appropriate standard and asked jurors the proper,
statutory questions in determining whether they could be fair and
impartial in this case. And, while Velazquez correctly recites that
19 jurors were excused for cause, the record reflects that only one of
those jurors was excused because of his feelings about the case. The
remaining jurors were excused for “vacation or health reasons or
direct knowledge because they were somehow related to the victim”
or just refused to participate—“it didn’t matter what case it [wa]s.”
Moreover, in denying the motion to transfer venue, the trial court
observed that the jury questionnaires revealed most of the jurors
“knew little to nothing about the case” and that, during the more
than two years since the crimes had been committed, there had been
47
a “global pandemic” and “presidential election,” among other
significant events. We conclude that these circumstances are “not
indicative of such prejudice that the trial court’s denial of a change
in venue was an abuse of discretion.” Moss, 305 Ga. at 881 (2). As
such, this claim fails.
6. Velazquez also contends that the trial court abused its
discretion by denying his motion for mistrial after Garcia-Solis
impermissibly testified about prior bad acts involving Velazquez and
improperly linked Velazquez to the crimes charged without any
corroborating evidence identifying Velazquez as one of the
perpetrators.
By way of background, the record reflects that the trial court
entered a pretrial order allowing the State to present evidence of two
August 2018 burglaries allegedly committed by Garcia-Solis and
Velazquez pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”).13
13 Pursuant to Rule 404 (b):
Evidence of other crimes, wrongs, or acts shall not be admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, including, but not limited to, proof of motive,
48
During the direct examination of Garcia-Solis, the following
exchange occurred between Garcia-Solis and his trial counsel:
[COUNSEL]: Let me talk a little bit with you about your
past and about other bad decisions you made. Hector, was
that weekend the first time you ever committed a
burglary?
[GARCIA-SOLIS]: No.
[COUNSEL]: Tell the jury about the first times you
committed burglaries.
[GARCIA-SOLIS]: The very first ones was Go Auto Sales.
[COUNSEL]: What happened?
[GARCIA-SOLIS]: Just me and Eric, some other dude –
At that point, Velazquez’s trial counsel objected, stating that “[a]ny
past acts by Mr. Velazquez cannot be brought up.” The trial court
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. The prosecution in a criminal
proceeding shall provide reasonable notice to the defense in
advance of trial, unless pretrial notice is excused by the court upon
good cause shown, of the general nature of any such evidence it
intends to introduce at trial. Notice shall not be required when the
evidence of prior crimes, wrongs, or acts is offered to prove the
circumstances immediately surrounding the charged crime,
motive, or prior difficulties between the accused and the alleged
victim.
49
excused the jury. Velazquez then moved for a mistrial, arguing that
Garcia-Solis’s testimony violated the court’s limiting instructions.
Velazquez also argued that he was being denied a fair trial because
Garcia-Solis was admitting to all the offenses charged in the
indictment when no corroborating evidence had been presented
linking Velazquez to the crimes.
The trial court denied the motion for mistrial. When the jury
was brought back into the courtroom, the trial court instructed the
jury as follows:
Now, before we broke, [Garcia-Solis’s trial counsel] asked
a question and Mr. Garcia-Solis had given a response. I
believe it was something to do with a place called Go Auto.
And I’m going to ask that you disregard the question and
the response that Mr. Garcia gave, as the question and
the response were outside the rules established for this
case.
The trial court then gave the following instructions:
Ladies and gentlemen, sometimes evidence is admitted
for a limited purpose against some parties and not others
and for some counts and not others. Such evidence may
be considered by the jury for the sole issue and purpose
against that party and only for the counts for which the
evidence is limited and not for any other purpose.
50
In order to prove its case in counts seven, eight, nine, ten,
eleven, thirteen, and fourteen against Mr. Eric Edgardo
Velazquez, the State must prove intent and may prove
knowledge and plan. To do so, the State may offer
evidence of other acts alledgedly [sic] committed by the
accused Mr. Eric Edgardo Velazquez. You are permitted
to consider that evidence only insofar as it may relate to
that defendant and those issues and not for any other
purpose.
You may not infer from such evidence that the defendant
is of a character that would commit such crimes. The
evidence may be considered only to the extent that it may
show the issues that the State is required or allowed to
prove in the crimes charged for the case now on trial.
Such evidence, if any, may not be considered by you for any
other purpose or against any other defendant. The
defendant is on trial for the offenses charged in this bill of
indictment only and not for any other acts, even though
such acts may incidentally be criminal.
Before you may consider any other alleged acts for the
limited purposes stated, you must first determine
whether it is more likely than not that the accused
committed the other alleged acts. If so, you must then
determine whether the acts shed any light on the issue for
which the act was admitted and the crimes charged in the
indictment in this trial.
Remember to keep in mind the limited use and the
prohibited use of this evidence about other acts of the
defendant Mr. Velazquez. By giving this instruction, the
court in no way suggests to you that the defendant has or
has not committed any other acts or whether such acts, if
51
committed, prove anything. This is solely a matter for your
determination.
Velazquez did not object to the trial court’s instructions or
renew his motion for mistrial after the instructions were given.
Thus, Velazquez has waived this issue on appeal, and we will not
address it. See Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d
90) (2014) (“[B]ecause [the defendant] failed to renew his motion for
mistrial following the trial court’s admonishment and curative
instruction, he has waived the issue on appeal.”).
7. Velazquez also claims that he received constitutionally
ineffective assistance of counsel in this case when his trial counsel
failed to object to the admission of hearsay testimony and improper
character evidence at trial. We see no merit to this claim.
To prevail on his ineffectiveness of counsel claim, Velazquez
must establish that his trial counsel’s representation was
“constitutionally deficient” and that “he was prejudiced by counsel’s
deficient performance,” Payne v. State, 314 Ga. 322, 328 (3) (877
52
SE2d 202) (2022), “meaning that but for counsel’s deficient
performance, a reasonable probability exists that the outcome at
trial would have been different.” Fitts v. State, 312 Ga. 134, 139 (2)
(859 SE2d 79) (2021) (citing Strickland v. Washington, 466 U.S. 668,
687 (III) (104 SCt 2052, 80 LE2d 674) (1984)).
To show deficient performance, the defendant must
demonstrate that counsel performed counsel’s duties in
an objectively unreasonable way, considering all of the
circumstances and in the light of prevailing professional
norms. To establish prejudice, [the defendant] must show
that there is a reasonable probability that, but for
counsel’s unprofessional error, the result of the
proceeding would have been different. In reviewing a
ruling on a claim of ineffective assistance of counsel, we
defer to the trial court’s findings of fact unless they are
clearly erroneous, but we apply the law to the facts de
novo.
Payne, 314 Ga. at 328-329 (3). If Velazquez fails to establish “either
deficient performance or prejudice, then we need not address the
other.” Fitts, 312 Ga. at 139 (2).
(a) Velazquez first contends that his trial counsel was
ineffective for failing to object to the following hearsay statements:
(1) Macias’s testimony regarding Velazquez’s and Garcia-Solis’s
53
visit to the ranch on July 6 and the burglaries they allegedly
committed the night before, which was purportedly based on
statements from “Adrian”—a mutual friend who did not testify at
trial (2) Macias’s testimony about the defendants’ plan to “hit a lick”
on the night of July 7, including Velazquez’s comment that, “if [he]
had a gun, [he] would have shot the cop [him]self,” which was based
on statements from co-defendant Clements, who did not testify at
trial and (3) testimony from Donna Lee, Garcia-Solis’s trauma
nurse, recounting statements Garcia-Solis made to her about the
group’s plan to leave “one” guy “to shoot at the cop,” while the others
ran away. We conclude that trial counsel did not perform deficiently
in deciding not to object to this alleged hearsay testimony.
As for the statements Adrian made to Macias on July 6
concerning whether Velazquez and Garcia-Solis could come out and
shoot guns at the ranch that day, these statements were not offered
to prove the truth of the matter asserted and so were not hearsay.
See OCGA § 24-8-801 (c) (“‘[h]earsay’ means a statement, other than
one made by the declarant while testifying at the trial or hearing,
54
offered in evidence to prove the truth of the matter asserted”). These
statements were also cumulative of what Velazquez and Garcia-
Solis told Macias themselves, and thus, “trial counsel was not
deficient in failing to object to the cumulative testimony of the
witness on this matter.” Sawyer v. State, 308 Ga. 375, 384 (2) (b)
(839 SE2d 582) (2020) (citation and punctuation omitted).
As for the statements Clements made to Macias on the night of
the shooting—i.e., that Clements, Cruz, Garcia-Solis, and Velazquez
were planning to “hit licks that night” this testimony was
cumulative of Garcia-Solis’s testimony regarding the co-
conspirators’ plans on July 7, and trial counsel was not deficient in
failing to object and Velazquez was not prejudiced by the admission
of this testimony at trial. See Sawyer, 308 Ga. at 384 (2) (b).
As for Macias’s testimony regarding Velazquez’s statement
that, “if [Velazquez] had a gun, [he] would have shot the cop
[him]self,” this testimony was not based on statements relayed to
Macias by Clements. The record reflects that Velazquez made these
statements directly to Macias during a phone call on the night of the
55
shooting. It is well established that Velazquez’s own statements
were admissible against him at trial as the “admissions of a party
opponent.” Lyons v. State, 309 Ga. 15, 28 (8) (d) (843 SE2d 825)
(2020). See also OCGA § 24-8-801 (d) (2) (A) (“Admissions shall not
be excluded by the hearsay rule. An admission is a statement offered
against a party which is: . . . The party’s own statement, in either an
individual or representative capacity[.]”). Additionally, this was a
statement against interest which was not excluded by the hearsay
rule. See OCGA § 24-8-804 (b) (3). See also Kennebrew v. State, __
Ga. __, __ (3) (893 SE2d 96) (2023). Accordingly, an objection to this
statement would have been meritless, and “[f]ailure to lodge a
meritless objection does not support an ineffective assistance claim.”
Lyons, 309 Ga. at 28 (8) (d).
With respect to Lee’s testimony regarding the statements
Garcia-Solis made to her in the hospital about the defendants’ plan
to leave one person “to shoot the cop” while the others ran away,
because Garcia-Solis was also on trial, these statements were the
“admissions of a party opponent” and were not excluded by the
56
hearsay rule. Lyons, 309 Ga. at 28 (8) (d). See also OCGA § 24-8-
801 (d) (2) (A). Thus, Velazquez’s trial counsel was not deficient in
failing to object to this testimony.
(b) Velazquez also argues that the admission of the testimony
from Macias and Lee was a “clear violation” of Bruton v. United
States, 391 U.S. 123, 136-137 (88 SCt 1620, 20 LE2d 476) (1968).
We disagree.
“A defendant’s right under the Confrontation Clause is violated
under Bruton . . . when there is a joint trial of co-defendants and the
testimonial statement of a co-defendant who does not testify at trial
is used to implicate the other co-defendant in the crime or crimes on
trial.” Fitts, 312 Ga. at 140 (2).
However, the admission of an out-of-court statement into
evidence at a criminal trial comes within the scope of the
Confrontation Clause only if the statement was
testimonial. A statement is testimonial if its primary
purpose was to establish evidence for use in a future
prosecution. Testimonial statements include statements
made to a government officer, during a police
investigation or interrogation, or intended to accuse
someone of a crime and produce evidence for a criminal
prosecution.
57
Id. (citations and punctuation omitted). In this case, while
Velazquez was tried jointly with his co-defendants, none of the
statements he complains of were “testimonial” in nature or made
with the “primary purpose” of establishing “evidence for use in a
future prosecution,” and thus, Bruton does not apply. Id.
(c) Velazquez also contends that his trial counsel was
ineffective for failing to object to testimony elicited from Macias that
allegedly placed Velazquez’s character into evidence. On cross-
examination, Macias was asked whether he felt that Velazquez was
a “bad influence” on Garcia-Solis, and Macias replied, “Yes.”
Velazquez asserts that this testimony prejudiced his defense. We
disagree and conclude that Velazquez has failed to show that trial
counsel performed deficiently or that any prejudice resulted even if
we assume deficient performance. See Sawyer v. State, 308 Ga. 375,
384 (2) (b) (839 SE2d 582) (2020) (“[P]retermitting whether [the
witness’s] testimony was improper character evidence that should
have been excluded under Rule 404 (a), [the] statement was
58
harmless because it was cumulative of a significant volume of
evidence already presented to the jury without objection[.]”)
“In general, evidence of a person’s character or a trait of
character shall not be admissible for the purpose of proving action
in conformity therewith on a particular occasion.” Sawyer, 308 Ga.
at 384 (2) (citing OCGA § 24-4-404 (a)). Moreover, “[r]easonable
decisions as to whether to raise a specific objection are ordinarily
matters of trial strategy and provide no ground for reversal.” Id. at
381 (2) (citation and punctuation omitted). See also Fitts, 312 Ga.
at 145 (5) (“Trial tactics or strategy are almost never adequate
grounds for finding trial counsel ineffective unless they are so
patently unreasonable that no competent attorney would have
chosen them.”). “[A]bsent evidence to the contrary, counsel’s actions
are presumed strategic.” Fitts, 312 Ga. at 145 (5).
Even if Macias’s testimony was improper character evidence
that should have been excluded under OCGA § 24-4-404 (a), the
admission of this testimony did not prejudice Velazquez’s defense
given the other compelling evidence detailed above, including his
59
commission of a series of burglaries with Garcia-Solis on July 6; his
plan to commit additional burglaries with Garcia-Solis, Cruz, and
Clements on July 7; his position as the driver of the stolen vehicle
on July 7 before and during the car chase; and his admission that he
would have shot the deputy, as well, if he had been armed. See
Green v. State, 304 Ga. 385, 391-392 (2) (b) (818 SE2d 535) (2018)
(holding that, “even assuming that trial counsel rendered deficient
performance,” the appellant did not meet “his burden to show that
he was prejudiced by any failing of counsel”). Therefore, this claim
of ineffective assistance of counsel also fails.
Judgments affirmed. All the Justices concur.
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