Bundel v. State

• Decision Date: 13 March 2020
• Docket Number: S20A0173
• Citation: 840 S.E.2d 349
• Parties: BUNDEL v. The STATE.
• Court: Georgia Supreme Court

840 S.E.2d 349

BUNDEL

v.The STATE.

S20A0173

Supreme Court of Georgia.

Decided: March 13, 2020

Bruce Steven Harvey, LAW OFFICES OF BRUCE S. HARVEY, 146 Nassau Street, N.W. Atlanta, Georgia 30303, Stephen M. Katz, THE KATZ LAW FIRM-GA., LLC, 1225 Johnson Ferry Rd, Building 100, Suite 125 Marietta, Georgia 30068, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joyette Marie Holmes, District Attorney, Linda Jeanne Dunikoski, A.D.A., Jesse David Evans, Deputy Chief A.D.A., COBB COUNTY DISTRICT ATTORNEY'S OFFICE, 70 Haynes Street, Marietta, Georgia 30090-9602, for Appellee.

Peterson, Justice.

Rosano Wensly Bundel appeals his convictions for malice murder and possession of a firearm during the commission of a felony in connection with the shooting death of George Tabetando.¹ Bundel argues that the weight of the evidence does not support his convictions and that the trial court erred in denying his motion for a new trial without conducting a hearing. Bundel’s weight-of-the-evidence argument requires us to review the sufficiency of the evidence against him, and the evidence was sufficient to support his convictions. Bundel’s second claim is also without merit because a trial court is required to hold a hearing on a motion for new trial only when one is requested, and Bundel did not do so. We affirm his convictions.

Viewed in the light most favorable to the jury’s verdicts, the trial evidence showed the following. In the fall of 2011, George Tabetando and Tientchu Sieni attempted to scam Bundel out of thousands of dollars and met with Bundel independently to carry out the scam. After meeting Bundel at a hotel on November 26, Tabetando received a call from Bundel and agreed to meet him later that day at Cumberland Mall. Sieni went with Tabetando to meet Bundel.

While waiting for Bundel to arrive at the mall, Tabetando went inside to shop and Sieni remained in the car. Sieni saw Bundel arrive in a white BMW and called Tabetando to direct him to meet Bundel inside the mall, where Sieni thought it was safer because they had already received money from Bundel. Tabetando ignored Sieni’s advice and met Bundel inside Bundel’s vehicle. Soon after, Tabetando fled the car and began to run. Bundel retrieved a gun from his car and chased Tabetando across the parking lot. Bundel shot Tabetando in the thigh. Tabetando fell, stood back up, and continued to run. Bundel shot Tabetando again, striking him in the other thigh, and Tabetando tried to jump over a fence, but fell as he went over it. While Tabetando lay on the ground, Bundel shot him again. Tabetando died from blood loss as a result of the gunshot wound to his left thigh that pierced his femoral artery.

Police recovered four .40-caliber bullets, one .40-caliber shell casing, and a 9mm shell casing from the crime scene. One of the live .40-caliber rounds was found near where Tabetando had been lying, and the .40-caliber shell casing was found near the fence. Sieni identified Bundel to police as the person who shot Tabetando. Police obtained Bundel’s cell phone number and located and conducted a search of his residence. There, they found .40-caliber ammunition that was the same brand as the ammunition found at the crime scene.

Bundel testified in his own defense at trial. Bundel described his interactions with Sieni and Tabetando and his meetings with them at various hotels and at Cumberland Mall in November 2011. Bundel claimed that while he was outside the mall, Tabetando pulled a gun on him, took his money, and walked away. Bundel also testified that Tabetando told him that Tabetando knew where Bundel and his family lived and threatened to harm them if Bundel called the police. This caused Bundel to grab his gun and follow Tabetando, leading to a struggle in which Bundel heard a gunshot and fired at Tabetando in response. Multiple witnesses testified at trial that they did not see Tabetando with a firearm.

1. Bundel argues that the weight of the evidence presented at his trial does not support his convictions, and that the trial court erred in failing to grant a new trial based on the grounds set forth in OCGA §§ 5-5-20 and 5-5-21, which are commonly known as the "general grounds." This claim has no merit.

Under the general grounds, a trial court may grant a new trial when the jury’s verdict is contrary to principles of justice and equity or is strongly against the weight of the evidence, and a trial court may do so even where the evidence is legally sufficient to support the verdict. See State v. Denson , 306 Ga. 795, 798 (2), 833 S.E.2d 510 (2019). But the decision to grant or refuse to grant a new trial on the general grounds is vested solely in the trial court. Id. When a defendant appeals the trial court’s denial of a motion for new trial, an appellate court does not review the merits of the general grounds. See Strother v. State , 305 Ga. 838, 843 (3), 828 S.E.2d 327 (2019). Instead, we simply review the case under the familiar standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine whether the evidence, viewed in the light most favorable to the convictions, was sufficient to support them. See Dent v. State , 303 Ga. 110, 114 (2), 810 S.E.2d 527 (2018).

Applying the Jackson standard, we conclude that the evidence presented at trial and summarized above was sufficient for a rational jury to find Bundel guilty beyond a reasonable doubt of the crimes of which he was convicted. Multiple witnesses saw Bundel shoot Tabetando, chase him down, and then shoot him again. Although Bundel claims that he was justified in killing Tabetando, the jury was not required to credit that testimony, and other evidence shows that Tabetando was unarmed and was running away during the encounter.

2. Bundel next argues that the trial court erred in denying his motion for new trial without conducting a hearing. He argues that he clearly requested a hearing on his motion, but the record does not support his argument.

Although a defendant has the right to a hearing on a motion for new trial, the trial court has no duty to hold such a hearing on its own initiative. See Mangrum v. State , 285 Ga. 676, 682 (8), 681 S.E.2d 130 (2009). It is the duty of the party seeking a hearing to take affirmative steps to request one, and failure to do so results in a waiver of the right to a hearing. See id. ; see also Wilson v. State , 277 Ga....