DocketNumber: A17A1948
Citation Numbers: 811 S.E.2d 35
Judges: Barnes
Filed Date: 2/9/2018
Status: Precedential
Modified Date: 7/29/2022
*37In connection with a series of criminal acts perpetrated upon the victim, Alberto Eddie Deleon was convicted of armed robbery, kidnapping with bodily injury, and hijacking a motor vehicle. Deleon thereafter sought, but was denied, a new trial. In this appeal, Deleon contests the sufficiency of the evidence, the final charge to the jury, the trial court's response to alleged juror misconduct, and the rejection of his ineffectiveness claim. Because Deleon has demonstrated no reversible error, we affirm.
1. When an appellant challenges the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia ,
So viewed, evidence elicited from the State's witnesses showed the following. At about 1:00 a.m. on April 5, 2011, the victim was at a truck stop where he was approached by Deleon, who told the victim that he needed gas for his car, which had stopped at a nearby interstate exit. The victim agreed to drive Deleon to a gas station so that Deleon could purchase a container of gasoline. While the two men were in transit in the victim's pickup truck, Deleon mentioned the possibility of obtaining road-side assistance through some other means, so the victim stopped near Deleon's broken-down car to let Deleon out of the pickup truck where he could wait.
But at that point, Deleon began stabbing the victim in the head with a knife. Deleon then took the victim's wallet and got cash, credit cards, and a debit card out of it. Deleon then demanded that the victim drive him to an ATM and supply him with additional cash. Bleeding from the multiple stab wounds, the victim got on the interstate and drove approximately five or six miles to reach a particular gas station, where he not only anticipated finding an ATM, but he also planned to jump out of the pickup truck, run into the station's convenience store, and ask that someone call 911. But as the victim was turning into the parking lot of the gas station, Deleon demanded that the victim proceed to a different ATM. Complying, the victim returned to the interstate and drove several additional miles to reach a drive-thru ATM at a bank. The victim withdrew hundreds of dollars and handed the cash to Deleon.
Deleon next demanded the victim to help him move his car from the side of the road to the truck stop (where the two men had met). Complying with Deleon's explicit instructions, the victim drove the approximately 13 miles back to Deleon's car, then exited his pickup truck, and sat in the driver's seat of Deleon's car. Deleon then moved into the driver's seat of the victim's pickup truck, and drove the pickup truck so as to push his own car, which the victim steered to the truck stop. Once there, Deleon used the victim's debit card to put gas in his car. But the car still would not function, apparently due to a dead battery.
Deleon then demanded the victim to help him push his car across the street to a parking lot, which was dark. Again complying with Deleon's explicit instructions, the victim sat in Deleon's vehicle and steered it to the designated area, while Deleon drove the victim's pickup truck to push the disabled car. When they arrived at the parking lot, the men got out of the vehicles. Deleon began rummaging through his own vehicle, telling the victim that he was searching for something with which to murder him. The victim sprinted back toward the truck stop; along the way, he fell so hard that he fractured a shoulder bone. The victim struggled back to his feet and continued to run toward the truck stop, but eventually the victim could run no more and fell down again. Lying on the ground, the victim yelled for help and pleaded that someone call 911. A man at the truck stop saw and heard the victim, and dialed 911. Meanwhile, Deleon fled the scene in the victim's pickup truck.
Challenging the sufficiency of the evidence to support the conviction of kidnapping *38with bodily injury,
(1) ... any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.
(2) Movement shall not be considered merely incidental to another offense if it:
(A) Conceals or isolates the victim;
(B) Makes the commission of the other offense substantially easier;
(C) Lessens the risk of detection; or
(D) Is for the purpose of avoiding apprehension.
According to Deleon, any movement of the victim that could have been attributed to him was slight, occurred while in the commission of the other offenses for which he was convicted (armed robbery and hijacking a motor vehicle), and was merely incidental thereto.
This contention lacks merit. The State adduced evidence of forced movement that spanned a number of miles and that was independent of both crimes of armed robbery and hijacking a motor vehicle. As alleged in the indictment,
Viewed in the light most favorable to the prosecution, the evidence showed movement that was substantial, involving a number of miles; movement that was independent of the other crimes of which Deleon was convicted; and movement that concealed or isolated the victim, that lessened the risk of detection, and that served the purpose of avoiding apprehension. Therefore, the evidence was sufficient for the jury to find the asportation (or movement) element of kidnapping as required by OCGA § 16-5-40 (b). See Thomas v. State ,
2. Deleon contends that, during the final charge, the trial court failed to fully explain "asportation" as contemplated by OCGA § 16-5-40 (b). Regarding kidnapping, the court charged:
*39A person commits kidnapping when that person abducts or steals away any person without legal authority or warrant and holds such person against such person's will. To prove abduction or stealing away, the State must prove that the victim was moved. The movement of the victim must be more than a mere change of position and such movement must be more than that which is incidental to or necessary to the completion of another crime.
Deleon points out that the charge failed to expressly state that "slight movement" shall be sufficient, OCGA § 16-5-40 (b) (1), unless such slight movement occurred during the commission of another offense and was "merely incidental" thereto; Deleon further points out that the charge given the jury failed to recite those instances of movement specified by OCGA § 16-5-40 (b) (2) which shall not be considered "merely incidental" to another offense. Consequently, Deleon asserts, the jury lacked adequate guidelines for assessing whether the movement in this case was sufficient pursuant to OCGA § 16-5-40 (b).
As the State concedes, Deleon has shown that the trial court erred by failing to instruct the jury on relevant parts of the kidnapping statute.
Because [Deleon's trial counsel] did not object to [the kidnapping] charge at trial, we review it only for plain error, see OCGA § 17-8-58 (b), meaning that we will reverse the trial court only if the error was obvious, likely affected the outcome
of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Inman v. State ,
Viewing the jury instructions as a whole, we find no plain error under the circumstances here. Though the charge fell short of explaining relevant statutory language, the kidnapping charge given was not overtly wrong. Moreover, it was undisputed at trial that Deleon and the victim traveled together to all the places set out above. Deleon took the stand as the sole defense witness. His version of events paralleled that of the victim, except in two aspects material here: (i) the victim was stabbed by Deleon in self-defense; and (ii) the victim's traveling with Deleon had been wholly voluntary. Deleon testified that when they initially left the truck stop to get a container of gasoline at about 1:00 a.m., he nodded asleep in the passenger's seat of the victim's pickup truck. According to Deleon, when he awakened, he discovered that the victim had stopped the truck alongside the road, that the victim's head and hands were on his crotch, and that the victim was unzipping his (Deleon's) pants. As Deleon described at trial, "[W]hen I woke up and [saw] him doing that, I reached in my pocket, grabbed my knife, and I started poking at him, and I started hitting him with my left hand to get him up off me." At that point, Deleon testified, the victim abandoned his sexual advances, pleaded with Deleon not to contact police, and told Deleon that he would give him money. And to that end, Deleon recounted at trial, despite bleeding from his multiple stab wounds, the victim voluntarily drove to both ATMs, withdrew cash, and gave it to Deleon; then the victim voluntarily drove Deleon back to his stalled car and helped him push it first to the truck stop, then to the parking lot across the street. (Thereafter, Deleon admitted at trial, "I ... stole the truck.")
But "[t]he jury simply did not conclude that [Deleon] actually acted in self-defense," Inman , 294 Ga. at 655 (4),
*40nor did the jury conclude that the victim-undisputedly bleeding from multiple head wounds -had voluntarily accompanied Deleon.
3. Deleon contends that the trial court erred in its response to alleged juror misconduct and that he is thus entitled to a new trial.
After the final jury charge, the court recessed trial proceedings for lunch. During that break, courtroom bailiffs reported to the trial court that one of the jurors had been texting or otherwise using a communications device during closing arguments and during the final charge. When the jurors returned from lunch, the trial court convened a hearing with that juror. Upon the court's questioning, the juror explained that he had been using his cell phone only to take notes and that he had not been communicating with anyone. The juror offered to show the court his notes, but the court declined to inspect the juror's cell phone. The court asked defense counsel whether he wished to question the juror, and defense counsel said no.
At defense counsel's request, however, the court summoned into the courtroom the remaining jurors, then instructed them all that jurors are allowed to take notes during trial proceedings; that whether such notes are taken by pen/paper or by an electronic device is immaterial; and that if/when such notes are taken by a juror, the notes do not place that juror in any superior position with respect to determining facts. Defense counsel asked the court to declare a mistrial, but that request was summarily denied. Deliberations then commenced.
On appeal, Deleon complains that the trial court did not examine the contents of the cell phone. Deleon additionally complains that the trial court did not voir dire the remaining jurors as to whether an improper communication had occurred. As Deleon posits, that juror could have been using his cell phone to conduct independent research, which information that juror might have shared with other jurors.
As our Supreme Court recognized well over a century ago, when a jury is selected and sworn to try the criminally accused, "[the law] contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way." Shaw v. State ,
For reasons explained below, we find no error in the trial court's decision not to grant a new trial on the ground of juror *41misconduct.
Where, as here, "the substance of the [juror's conduct] is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant." (Citation and punctuation omitted.) Holcomb v. State ,
4. Deleon contends that his trial counsel rendered ineffective assistance. Pursuant to Strickland v. Washington ,
[i]n order to succeed on [a] claim of ineffective assistance, [a defendant] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If [the defendant] fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine *42the other prong. In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.) Wright v. State ,
(b) Deleon complains that his trial counsel did not object to the kidnapping charge.
Judgment affirmed.
McMillian and Mercier, JJ., concur.
See OCGA § 16-5-40 (a) ("A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will."), (d) (4) (enhancing punishment where "the person kidnapped received bodily injury").
"The element of 'abducting or stealing away' ... [is] known as asportation." Whatley v. State ,
The armed robbery count of the indictment alleged that Deleon did "with the intent to commit a theft, take a wallet with its contents, which included United States currency ... and a financial transaction card, from the person of [the victim], by use of ... a knife."
The kidnapping charge given was authorized under Garza v. State ,
See generally State v. Clements ,
See Division 1, supra.
See Gaines v. State ,
Deleon does not challenge the substance of the trial court's apparent curative instructions with respect to a juror's use of an electronic device to take notes. And we need not reach that issue. See, however, Owens v. State ,
See Division 3, supra.
See Division 2, supra.