Cisneros v. State

• Decision Date: 17 October 2016
• Docket Number: S16G0443
• Citation: 792 S.E.2d 326,299 Ga. 841
• Parties: CISNEROS v. The STATE
• Court: Georgia Supreme Court

299 Ga. 841

792 S.E.2d 326

CISNEROS

v.The STATE

S16G0443

Supreme Court of Georgia.

Decided: October 17, 2016

Mark A. Yurachek, Yurachek & Associates, Bruce S. Harvey, for Appellant.

Daniel J. Porter, Dist. Attorney, Christopher M. Quinn, Lisa A. Jones, Asst. Dist. Attys., for Appellee.

THOMPSON, Chief Justice.

In 2004, appellant Gustavo Cisneros was indicted, along with eight others, for crimes related to a series of home invasions in Gwinnett County, Georgia. In 2008, following a separate jury trial at which two of his co-indictees testified, appellant was found guilty of six counts of armed robbery, eight counts of burglary, two counts of criminal attempt to commit armed robbery, two counts of aggravated sexual battery, and one count of sexual battery. His convictions were affirmed in part and reversed in part on appeal to the Court of Appeals.¹ See Cisneros v. State, 334 Ga.App. 659, 659, 780 S.E.2d 360 (2015). We granted his petition for writ of certiorari to consider the following issues:

(1) Did the Court of Appeals err in concluding in Divisions 1 (c) and (d) of its opinion that modus operandi evidence alone was sufficient to corroborate an accomplice's testimony such that the evidence presented at trial was sufficient to support the defendant's convictions for burglary and armed robbery?

(2) Did the Court of Appeals err in concluding in Division 1 (e) of its opinion that the evidence presented at trial was sufficient to sustain the conviction of the defendant as a party to the crime of sexual battery?

(3) Did the Court of Appeals err in concluding in Division 2 of its opinion that trial counsel was not ineffective for failing to object during trial to the Spanish translation being done by a courtroom interpreter, or for failing to insist on a hearing under Section VII (A) (1) of the Supreme Court of Georgia's Rules for the Use of Interpreters?

For the reasons that follow, we affirm the decision of the Court of Appeals.

1. The first issue that we asked the parties to address concerns the sufficiency of the evidence to support appellant's convictions for armed robbery and burglary relating to home invasions on Glenwhite Drive (Counts 7 and 8) and Sandune Drive (Counts 9 and 10). See Cisneros, 334 Ga.App. at 666–668 (1) (c), (d), 780 S.E.2d 360. The only witness against appellant for those crimes was an accomplice, Gonzalo Ortega. The Court of Appeals held that Ortega's testimony was sufficiently corroborated by evidence at trial showing that appellant was a participant in home invasions on Davenport Park Lane, Skyview Lane, and Shadowood Road. Appellant was convicted of crimes related to those home invasions and did not challenge the sufficiency of the evidence for those convictions on appeal. The Court of Appeals held that all five home invasions had a "markedly similar modus operandi" and held that this modus operandi was sufficient by itself to corroborate Ortega's testimony. See id. For the reasons that follow, we affirm the decision of the Court of Appeals.

(a) To begin, it is necessary to review the facts presented at trial regarding the relevant home invasions. Viewing the evidence in the light most favorable to the verdicts, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that on March 29, 2004, several men entered a residence on Glenwhite Drive in the early morning hours. The men, armed with handguns and wearing face-covering masks or bandanas, pointed a gun at one victim and told him to get on the floor and not to look at them. They tied that victim's hands behind his back with a cable wire and stole $300 from his pocket, then left one gunman to guard him while the others spent several hours ransacking the house. Other victims were awakened with guns pointed at their heads and were told to get up, lie on the floor, and not look at anyone. They were then tied with their hands behind their backs. The gunmen demanded money and drugs and eventually took all of the victims to the basement where the first victim was being held. The gunmen, whom the victims described as males who spoke both Spanish and English, also took a pick-up truck that was parked in front of the home.

Appellant's convictions for robbery and burglary in Counts 9–10 arose out of a home invasion that occurred on April 9, 2004, on Sandune Drive. The evidence regarding those charges showed a victim fell asleep on his couch and woke up with a gun pressed against his head. His assailants, whom he described as six Spanish and English speaking men who wore black ski masks, placed him face down on the floor. The gunmen tied his hands behind his back with duct tape and took money from his pockets. One gunman then guarded the first victim while others went upstairs and robbed the other residents. Eventually, all of the victims were brought to one room and held under guard after being ordered to lie face down on the floor. The gunmen demanded the victims' wallets, and when they discovered one victim did not turn over his wallet, they repeatedly kicked him in the head. Another victim was shot in the upper thigh. One victim testified he had recently been paid as a subcontractor on a construction project and had $2,000 in cash taken from his pocket, as well as a large sum of money he kept in his closet. He stated the intruders knew he had just been paid and knew who they (the victims) were, going so far as to check the victims' wallets to confirm their identities and noting that at least one person the gunmen expected to be at that location was not present. The gunmen took money, jewelry, clothing, and a truck that was parked outside the home.

The record shows with regard to the Skyview Lane and Shadowood Road crimes that in the early morning hours of April 18, 2004, masked gunmen broke into a home on Skyview Lane in which a mother, father, and two children were residing. The gunmen placed guns to the victims' heads and ordered them to lie face down and to either keep their heads down or not to look at the gunmen. The father was taken to a separate room where the gunmen tied his hands behind his back with shoelaces and ordered him to lie face down on the floor. The other victims were similarly tied with their hands behind their backs. The gunmen demanded money, credit cards, and PIN numbers. The child victims were then placed in the same room while gunmen ransacked the house, taking credit cards, jewelry, and $2,600 in cash, as well as a computer game system. They also stole the family's GMC Jimmy truck that was parked in front of their home. The victims testified that some of the gunmen spoke English while others spoke Spanish, that they wore ski masks and gloves, and that they stayed in the home for several hours.

The mother testified that the gunmen called her by name and asked her to confirm her identity. They told her they knew she had money from her recent sale of a car and threatened to kill her children if she did not give them the money. While gunmen ransacked the house, she was kept separate from the other victims. During this time, one gunman pulled down her underpants and touched her breasts, her body, and her legs.

After a period of time, the gunmen asked the mother where her sister lived. While some of the gunmen stayed with her husband and children in her home, she testified that four gunmen drove her to her sister's house on Shadowood Road and directed her to knock on the door. When her brother-in-law opened the door, the gunmen forced their way inside. They again tied up the mother, along with her sister, her brother-in-law, and her nephew, put all of the victims in the same room, ordered them on the floor, and demanded money and drugs. After one of the gunmen tortured the brother-in-law by burning his bare back with a heated knife and threatened to cut off his son's fingers, the brother-in-law told the gunmen that he kept cash in a shoe in a closet. The gunmen searched the entire home, eventually taking from the home, among other things, an identification card, jewelry, and money.

Jose Martinez, a co-indictee, testified for the State at trial. He told the jury he and appellant were drivers for the Skyview Lane and Shadowood Road robberies but that appellant did not participate in the Glenwhite Drive robbery. He also stated generally that co-indictee Mario Silverio supplied the weapons and decided whom the group would rob.

Co-indictee Gonzalo Ortega also testified as a witness for the State, telling jurors that he, appellant, and the other co-indictees were all involved in the Glenwhite Drive robbery. He also described how appellant asked him and a coworker to participate in the Sandune Drive robbery, how they planned that armed robbery, and how, just before those crimes, the group stopped at a convenience store where they bought duct tape and ski masks. Ortega stated he acted as a lookout while the other men went inside the home. After the robbery, he asserted, all of the men met at a hotel where they divided the money they had taken. He also testified that everyone listed in the indictment, including appellant, participated in the Skyview Lane robbery. He explained how he and appellant originally acted as drivers and lookouts, but after the others called and said there was more money at another location, they returned to the Skyview Lane address. From there, Ortega, appellant, and two others drove the mother to her sister's Shadowood Road address, stood to the side while she knocked on the door, and when the brother-in-law opened the door, pushed their way inside. Consistent with the victims' testimony, Ortega admitted they took money from the victims and later divided the proceeds among everyone involved, including appellant. Ortega testified generally that appellant, Martinez, and another co-indictee would get information about someone they believed had a large amount of cash, thus identifying their intended victim, and after the planned robbery, each member of the group would receive a...