Cruz-Padillo v. State

• Decision Date: 19 November 1992
• Docket Number: No. S92A0629,CRUZ-PADILLO,S92A0629
• Citation: 422 S.E.2d 849,262 Ga. 629
• Parties: v. The STATE.
• Court: Georgia Supreme Court

Page 849

422 S.E.2d 849

262 Ga. 629

CRUZ-PADILLO v. The STATE.

No. S92A0629.

Supreme Court of Georgia.

Nov. 19, 1992.

Reconsideration Denied Dec. 17, 1992.

R. Andrew Fernandez, Atlanta, for Cruz-Padillo.

Robert E. Keller, Dist. Atty., Tracy G. Gladden, Asst. Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

Peggy R. Katz, Staff Atty., Atlanta.

BELL, Presiding Justice.

The appellant, Rodolfo Cruz-Padillo, was convicted of the felony murder (with the underlying felony being aggravated assault), voluntary manslaughter, ¹ and aggravated assault of Elfego Romaro, and of the possession of a firearm during the commission of a felony. ² The trial court merged the voluntary manslaughter and aggravated assault convictions with the felony murder conviction, and sentenced Cruz-Padillo to life in prison for felony murder and to a term of five years for the possession of a firearm during the commission of a felony. For the reasons that follow, we affirm Cruz-Padillo's convictions for felony murder and possession of a firearm during the commission of a felony.

The victim, Elfego Romaro, was the acting manager at a restaurant where Cruz-Padillo worked. On the day before the murder Cruz-Padillo, along with several others, was involved in a confrontation with the victim. On the night of the murder Cruz-Padillo met the victim outside the restaurant when it closed. Cruz-Padillo motioned for the victim to come closer to Cruz-Padillo, and the two began to argue. The victim slapped Cruz-Padillo and Cruz-Padillo then fatally shot the victim four times.

1. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Cruz-Padillo guilty of felony murder and of the possession of a firearm during the commission of a felony beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his second enumeration of error Cruz-Padillo contends that the jury, by convicting him of voluntary manslaughter, necessarily found the aggravated assault of the victim was mitigated by provocation and that under Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), his conviction for felony murder must be reversed. However, after the jury returned its verdict, the trial court asked Cruz-Padillo if he had any objections to the form of the verdict and Cruz-Padillo responded that he did not. Moreover, after the trial court merged the voluntary manslaughter conviction into the felony murder conviction and sentenced Cruz-Padillo for felony murder, the court asked Cruz-Padillo if he had any objections to the court's judgment. Again, Cruz-Padillo responded in the negative. Because of these failures to object, we hold that Cruz-Padillo is barred from now asserting that the court should have sentenced him for voluntary manslaughter instead of felony murder. Wilson v. State, 262 Ga. 588, 422 S.E.2d 536 (1992).

3. In his first enumeration of error Cruz-Padillo contends that the trial court violated his federal and state constitutional rights to remain silent and to due process by requiring him to testify before any of the other defense witnesses or not at all. We agree that the trial court violated Cruz-Padillo's rights to remain silent and to due process. Brooks v. Tennessee, 406 U.S. 605, 609-613, 92 S.Ct. 1891, 1893-1895, 32 L.Ed.2d 358 (1972). However, because Cruz-Padillo did testify and thoroughly presented his evidence concerning voluntary manslaughter and self-defense, because it was necessary for Cruz-Padillo to testify to present those defense theories, and because we can otherwise discern no harm from Cruz-Padillo testifying first, we find beyond a reasonable doubt that the error did not contribute to the verdict. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Strickland v. State, 260 Ga. 28, 29(2)(c), 389 S.E.2d 230 (1990).

4. In his fourth enumeration of error...