Deleon-Alvarez v. Palacios-Baras

Decision Date28 March 2014
Docket NumberA13A1001,A13A1002.,Nos. A13A1000,s. A13A1000
Citation751 S.E.2d 497,324 Ga.App. 694
CourtGeorgia Court of Appeals
PartiesDELEON–ALVAREZ v. The STATE. Palacios–Baras v. The State. Hernandez v. The State.

OPINION TEXT STARTS HERE

Sharon Lee Hopkins, for Appellant (Case No. A13A1000).

G. Richard Stepp, for Appellant (Case No. A13A1001).

Matthew David Crosby, for Appellant (Case No. A13A1002).

Daniel J. Porter, Dist. Atty., Michael Douglas Morrison, Asst. Dist. Atty., for Appellee.

PHIPPS, Chief Judge.

At a joint trial in Gwinnett County Superior Court, Jonathan Deleon–Alvarez, Francisco Palacios–Baras, Tito Hernandez and a fourth co-defendant (who is not an appellant in the instant cases) were found guilty by the jury of kidnapping for ransom 1 Jose Wilson Tejada on October 11, 2009. The trial court entered judgments of conviction upon the verdicts. Deleon–Alvarez's, Palacios–Baras's, and Hernandez's respective motions for new trial were denied. Discerning no reversible error, we affirm their convictions.

Evidence adduced at trial showed that in early 2009, the Atlanta High Intensity Drug Trafficking Area (HIDTA) task force began a drug trafficking investigation. As part of that investigation, the Gwinnett County district attorney obtained warrants from the Gwinnett County Superior Court to authorize the interception of calls to and from three targeted cell phone numbers being used by Palacios–Baras. While thereafter monitoring those conversations, officers discerned from statements overheard on October 11, 2009 that someone (later determined to be Tejada) had been kidnapped due to an $84,000 drug debt. Based on ping data relating to one of the monitored cell phones, officers concluded that the abducted individual was being held at a particular Floyd County residence.2

That evening, several law enforcement officers set up surveillance of the Floyd County residence, which by then had been determined by police to be that of Palacios–Baras. Starting at about 10:45 p.m., officers observed individuals exiting the house and leaving in several vehicles—a white Ford Expedition, a tan Toyota Camry, and a white GMC Yukon Denali—that had been parked at the residence. Concerned that one of the vehicles was carrying a hostage, officers pursued the departing vehicles and quickly effected traffic stops upon two of them.

Having stopped the Expedition, police extracted its three occupants: (i) Tejada, who was seated in the back seat and who immediately exclaimed that his life had been threatened; (ii) Deleon–Alvarez, who was seated in the back seat beside Tejada; and (iii) the driver, the fourth co-defendant (who is not an appellant). When the Camry was stopped, Hernandez, the driver, was the vehicle's lone occupant.

That night, officers lost sight of the Denali, and also were unable to locate Palacios–Baras. Based on ping data obtained in connection with one of the targeted cell phones that Palacios–Baras was still carrying, however, officers located him the next day. He was a passenger in a vehicle traveling in tandem with the Denali observed at his residence the night before. During a traffic stop of both vehicles, Palacios–Baras was arrested.

The state presented numerous witnesses who testified about Tejada's abduction, confinement, and rescue, as well as the arrests of the three appellants. 3 The proprietor of a business located in the strip mall where Tejada operated a clothing store testified that, on the afternoon of October 11, 2009, two men approached Tejada in the parking lot. Each man grabbed one of Tejada's arms “like he was being arrested.” This witness had no further recollection, other than: They took him.”

Tejada took the stand and gave these details. Between 2:00 and 4:00 p.m. on October 11, two men, with handguns drawn, confronted him as he was exiting his clothing store located in Gwinnett County. They told him to get into a black SUV parked in the parkinglot, and he complied. Blindfolded, he was driven for about ten minutes to a house, later determined to be located also in Gwinnett County. The blindfold was removed.

Four or five men were already at that house, including the four co-defendants. Deleon–Alvarez and Hernandez used duct tape to bind Tejada's hands and legs, and told Tejada that they needed to solve something. Palacios–Baras and the fourth co-defendant were “leaning around, waiting until [Tejada] got bonded with the tape.” About a half-hour after Tejada was brought to that house, he was lifted and placed in a tan Toyota Camry that was parked in the garage. Hernandez and Deleon–Alvarez also got into the Camry, and Tejada was again blindfolded. While Hernandez drove the Camry away, Deleon–Alvarez pressed what felt to Tejada like the tip of a handgun against Tejada's back. After leaving that house, Tejada did not see again the two men who had nabbed him from the parking lot.

After about two hours of riding, they arrived at another residence, determined later to be located in Floyd County. Tejada was pulled out of the Camry and taken into the house. When the blindfold was removed, Tejada was in a room with all four co-defendants, each of whom held a firearm. Tejada testified that Palacios–Baras “came up to me, telling me that the drugs were stolen and that he was there to clean up the mess.” As Tejada summarized at trial, They told me that a [drug deal] had gone wrong and that that was the reason why they had kidnapped me.”

Tejada elaborated at trial that, a few days before he was abducted, he had set up a drug deal between two of his store patrons, as a seller and a buyer. The deal involved three kilograms of cocaine. For brokering that deal, Tejada was to be paid $500. But, as Tejada testified, [T]he drugs had been ripped off.”

Thus, Tejada recalled at trial that when he was in that room with the four armed co-defendants and Palacios–Baras said to him that he (Palacios–Baras) was there to “clean up,” Tejada discerned that they would “basically make sure that either I pay up, or they were going to kill me.” According to Tejada, They thought I stole the drugs,” and they demanded from him $84,000, which Tejada explained at trial “was the total amount that was owed for the drugs that was stolen.” Tejada recalled that it was Palacios–Baras who “approached me, telling me that I needed to pay up over some drugs that got knocked off from them. And that they didn't care who knocked them up, they just wanted the money.” Because Palacios–Baras continually pressed him about what he planned to do about “the situation,” Tejada used a phone he was handed to call his wife and then his father-in-law, seeking help to procure the demanded sum.

Shortly thereafter, Tejada testified, one of numerous cell phones at the house rang and, when answered, he overheard the caller warning them to leave the house. Palacios–Baras and Hernandez left the residence first. Deleon–Alvarez and the fourth co-defendant stayed in the house with Tejada and removed the duct tape from Tejada's hands and legs to enable him to move more quickly. The two threatened to kill Tejada if he made any suspicious movement. They forced Tejada into the back seat of a white Ford Expedition; Deleon–Alvarez sat beside him, aiming a gun at him; and the fourth co-defendant drove the Expedition away.

Soon remarking that cops were following them, the driver increased his speed to outrun the police and tossed a handgun out the window. The patrol car activated its blue lights and siren, pursued the speeding Expedition, then engaged in a maneuver that forced the Expedition to stop. Deleon–Alvarez stashed his gun in the back seat. Additional law enforcement officers converged upon the scene, and the three occupants were extracted from the Expedition and handcuffed. Tejada testified that he told police at the scene that he had been kidnapped from Gwinnett County earlier that day.

According to one of the arresting officers, Tejada also “uttered out something like, they were going to kill me.” The officer saw “grayish-whiteish” glue around Tejada's wrists. During a search of the Expedition, police found a gun in the glove box and a gun secreted in the back seat. Police found also a gun alongside the road traveled during their pursuit of the Expedition.

Meanwhile, other law enforcement officers effected a stop of the Camry. Hernandez was the driver and only occupant. Officers confiscated $7,100 in cash from his person. A search of the vehicle yielded a loaded “magazine from a handgun,” found near the front passenger seat.

At about 11:20 that same night, other law enforcement officers executed a warrant that had been obtained to search the Floyd County residence. Inside the house, they found, inter alia, “bunched up” duct tape in a trash can, digital scales of a type often used to measure drugs, a pistol, gun holsters, and a bulletproof vest. The next day, police located and arrested Palacios–Baras.

The state also presented the jury with a series of transcripts of (recorded) phone conversations conducted with Palacios–Baras's targeted cell phones; many of the calls were made on the day in question, October 11, 2009. In one such call, at about 6:00 p.m., Tejada was heard in the background, pleading, [D]on't kill me.” And in a subsequent call, Tejada asked his wife to call her father and ask him for $84,000.

Case No. A13A1000—Appeal of Deleon–Alvarez

1. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” 4 “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” 5 In this criminal case, Deleon–Alvarez's

motion for new trial was filed before the judgment was entered, making it void. However, the effect of the subsequent entry of a judgment on the jury's verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive...

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  • Bernier v. State
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    • Georgia Court of Appeals
    • March 10, 2020
    ...an affirmative defense, it was not unreasonable for counsel not to challenge the State’s evidence. See Deleon-Alvarez v. State , 324 Ga. App. 694, 709 (7), 751 S.E.2d 497 (2013) ("The decision of whether to file a motion to suppress is a matter of professional judgment, and thus will not fo......
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    • June 7, 2016
    ...therein).20 Hill v. State , 290 Ga. 493, 499, 722 S.E.2d 708 (2012) (citation and punctuation omitted); Deleon–Alvarez v. State , 324 Ga.App. 694, 708, 751 S.E.2d 497 (2013) (same); see Rickman v. State , 277 Ga. 277, 280, 587 S.E.2d 596 (2003) (noting that “in making litigation decisions, ......
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    • February 1, 2022
    ...the representation below was so inadequate as to amount to a denial of effective assistance of counsel. Deleon-Alvarez v. State , 324 Ga. App. 694, 711-712 (9), 751 S.E.2d 497 (2013) (citations and punctuation omitted). In the case primarily relied upon by Priddy on this issue, Hinton v. Al......
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    ...fact that the jury did not believe this theory does not mean that counsel's actions were unreasonable. See Deleon-Alvarez v. State , 324 Ga. App. 694, 712 (9), 751 S.E.2d 497 (2013) ("[T]he fact that the trial counsel chose to try the case in the manner in which it was tried and made certai......
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    • State Bar of Georgia Georgia Benchbook 2023 edition
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    ...Ga.App. 737, 285 S.E.2d 190 (1981)]. • No standing to challenge wiretap if not subscriber and voice is not heard [Deleon-Alvarez v. State 751 S.E.2d 497 (Ct. App. #A13A1000, 11/14/2013)]. • Defendant's subjective expectation of privacy [See Rawlings v. Kentucky448 U.S. 98 (1980)]. • Defenda......

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