Gonzales v. State, A03A0362.

• Decision Date: 22 May 2003
• Docket Number: No. A03A0362.,A03A0362.
• Citation: 261 Ga. App. 366,582 S.E.2d 524
• Parties: GONZALES v. The STATE.
• Court: Georgia Court of Appeals

582 S.E.2d 524

261 Ga. App. 366

GONZALES v. The STATE.

No. A03A0362.

Court of Appeals of Georgia.

May 22, 2003.

Darel C. Mitchell, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., R. Keith Miles, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

Luis Vera Gonzales was indicted for murder but convicted of voluntary manslaughter and sentenced to 20 years, to serve 15. On appeal, he contends the evidence was insufficient and that the trial court erred by admitting his videotaped statement and photographs of the victim and by charging the jury on revenge and mutual combat.

1. Construed in favor of the verdict, the evidence shows that Gonzales and four friends had a confrontation with Antonio Paz Martinez at a car wash, during which Martinez pointed a sawed-off shotgun at an unarmed Gonzales. Shortly thereafter, Gonzales and his friends returned to Gonzales's apartment complex and encountered Martinez again. Martinez again pointed his shotgun at Gonzales from the window of his white car and threatened Gonzales. At that point, Gonzales and his friends went to get Gonzales's gun—a nine-millimeter, semi-automatic handgun with a collapsible stock and shoulder strap, equipped to accommodate a magazine that could hold twenty cartridges that in fact was loaded with about seventeen bullets.

Some four hours after the first two confrontations, the group of young men returned to the apartment complex and waited at the only entrance, behind the mailboxes, for about twenty-five or thirty minutes until the same white car returned. Gonzales testified that the car accelerated toward him, that he did not see any weapon, but that he was scared. As the car approached, Gonzales pulled his weapon out from under his shirt, walked out from behind the mailboxes into the street, pointed his gun, and pulled the trigger. His gun jammed, but he cleared it as the car passed by. He then shot one time at the car and saw the car crash. He and his friends then fled, and Gonzales hid the weapon at a construction site.

The bullet hit Martinez behind his left ear and exited behind his right ear. An expert testified that the blood spatter pattern found on the back of Martinez's hands and the location of the wounds were consistent with Martinez having been shot from behind as he was driving with both hands on the wheel, looking back over his left shoulder.

Pursuant to OCGA § 16-5-2(a),

A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

Gonzales argued that the shooting was in self-defense. Whether the evidence shows that a person had a reasonable belief that it was necessary to use deadly force to prevent death or great bodily injury to himself is a question for the jury. Anderson v. State, 245 Ga. 619, 623(1), 266 S.E.2d 221 (1980). When voluntary manslaughter is raised, the issue is whether the jury could have found beyond a reasonable doubt that the defendant "was so influenced and excited that he reacted passionately rather than simply to defend himself." (Citation and punctuation omitted.) Mitchell v. State, 199 Ga.App. 159, 160, 404 S.E.2d 329 (1991).

In this case, the jury was authorized to conclude that Martinez's actions that day provoked Gonzales into intentionally shooting him, and they were authorized to disbelieve that Gonzales thought he was going to be shot. This is especially true because at the time of the shooting, Gonzales did not see Martinez holding a gun, and he made the fatal shot after Martinez had passed by. See Riley v. State, 250 Ga.App. 427, 428-429(1), 551 S.E.2d 833 (2001).

2. Gonzales contends that his videotaped statement should not have been admitted because he did not knowingly and intelligently waive his constitutional rights. Gonzales was age sixteen years and ten months at the time of the incident. Individuals who are less than 17 are considered juveniles by our criminal justice system. Reynolds v. State, 275 Ga. 548, 550, 569 S.E.2d 847 (2002).

The State presented evidence at a Jackson-Denno hearing showing that while in custody, Gonzales made an incriminating statement to investigators on videotape after being advised of his constitutional rights. The trial court ruled that the preponderance of the evidence indicated that the statement was voluntary under the nine-factor test for determining the voluntariness of a juvenile's statement as set forth in Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976). Gonzales contends that the State did not meet its burden to show part of the third of the nine elements—that he knew the substance of the charge under investigation.

In Riley, the Supreme Court explained that the trial court should consider nine factors when determining whether a juvenile knowingly and intelligently waived his right to remain silent:

[T]he age of the accused; the education of the accused; the knowledge of the accused as to the substance of the charge and nature of his rights to consult with an attorney; whether the accused was held incommunicado or allowed to consult with relatives or an attorney; whether the accused was interrogated before or after formal charges had been filed; methods used in interrogation; length of interrogation; whether the accused refused to voluntarily give statements on prior occasions; and whether the accused repudiated an extrajudicial statement at a later date.

Henry v. State, 264 Ga. 861, 862(2), 452 S.E.2d 505 (1995), applying Riley. But, even after considering the nine factors, the trial court must determine whether, under the totality of the circumstances, there was a knowing and intelligent waiver of constitutional rights. Riley, 237 Ga. at 128, 226 S.E.2d 922. In this case, the trial court carefully considered each of the nine factors based on the evidence presented by the State at the Jackson-Denno hearing.

Gonzales contends that at the time of his interrogation, he did not know the charges against him.¹ The officers involved admitted that they did not tell him that they were investigating a murder; they only told him that they were investigating "a shooting." But at...