Grullon v. State

• Decision Date: 01 September 2022
• Docket Number: A20A1051
• Citation: 365 Ga.App. 344,878 S.E.2d 89
• Parties: GRULLON v. The STATE.
• Court: Georgia Court of Appeals

365 Ga.App. 344

878 S.E.2d 89

GRULLON

v.The STATE.

A20A1051

Court of Appeals of Georgia.

September 1, 2022

Reconsideration Denied September 16, 2022

Stephen Elijah Brown-Bennett, Taylor Lee & Associates, Suwanee, for Appellant.

Nigel Robin Lush, Assistant District Attorney, Daniel J. Porter, District Attorney, Lawrenceville, for Appellee.

McFadden, Presiding Judge.

In Grullon v. State , 357 Ga. App. 695, 849 S.E.2d 291 (2020) ( Grullon I ), we affirmed Victor Grullon's conviction for trafficking in 28 or more grams of a mixture containing heroin. In Division 1, we held that the evidence was sufficient to support the conviction. Id. at 696-700 (1), 849 S.E.2d 291. In Division 2, we concluded that Grullon's claim that a jury charge was improper was not a ground for reversal because he had not preserved that claim for ordinary appellate review and because he had affirmatively waived that claim, meaning that he could not show plain error. Id. at 700 (2), 849 S.E.2d 291.

The Supreme Court of Georgia granted certiorari to review Division 2 of our opinion, and in Grullon v. State , 313 Ga. 40, 867 S.E.2d 95 (2021) ( Grullon II ), the Court "conclude[d] that [we] erred in identifying affirmative waiver under the facts of this case, ... reverse[d] th[at] division of [our] decision[,] and remand[ed] the case for reconsideration of other elements of plain error review." Id. at 44 (1) (c), 867 S.E.2d 95.

The Supreme Court noted that Grullon had not sought certiorari review of Division 1 of our earlier opinion and so "that part of [our] judgment stands." Grullon II , 313 Ga. at 44 (1) (c) n. 4, 867 S.E.2d 95. We vacate Division 2 of our opinion and in place of that Division we adopt the Supreme Court's opinion in Grullon II , and we now address the other elements of plain error review. Because we conclude that Grullon has not met his burden of demonstrating other elements of plain error review, we again affirm.

1. Facts.

The earlier appellate decisions set forth in detail the evidence in this case. See Grullon II , 313 Ga. at 41-42 (1) (a), 867 S.E.2d 95 ; Grullon I , 357 Ga. App. at 696-697 (1), 849 S.E.2d 291. Our Supreme Court described the facts as follows:

[I]n early 2016, the federal Drug Enforcement Administration, together with various local law enforcement agencies, conducted an investigation into Marcelo Enciso-Rodriguez. Law enforcement officers believed Enciso-Rodriguez was acting as a middleman in a heroin trafficking operation that involved a supplier in Mexico, known as "Mariachi," and buyers from New York and Philadelphia. The buyers would drive to the metro Atlanta area and meet Enciso-Rodriguez at a QuikTrip convenience store, where he would give them a car battery in which heroin was concealed. As part of their investigation, officers conducted surveillance on Enciso-Rodriguez through telephone wiretaps, a video camera mounted on a pole in the QuikTrip parking lot, and a stake-out across the street from the QuikTrip.

In January 2016, officers observed a transaction between Enciso-Rodriguez and a man later determined to be Tomas Hernandez, in which Enciso-Rodriguez gave Hernandez a car battery. Before and after the meeting with Hernandez, Enciso-Rodriguez spoke with Mariachi, using coded phrases referring to Hernandez and to the amount of money involved in the transaction.

On February 5, 2016, Mariachi and Enciso-Rodriguez spoke on the phone about another transaction. Apparently referring to a new buyer, Mariachi told Enciso-Rodriguez that "he left today" and would arrive to meet with Enciso-Rodriguez at some point the following day, possibly in the morning.

On the morning of February 6, Enciso-Rodriguez had a series of telephone conversations with a man, later identified as Grullon, who asked for directions to the QuikTrip. Grullon and Hernandez, the buyer from the January transaction, arrived at the QuikTrip in a vehicle with New York plates registered to Grullon. Enciso-Rodriguez gave Hernandez a car battery, which Hernandez placed in the vehicle, and Hernandez and Grullon drove away. Officers followed the vehicle and stopped it shortly thereafter for a tag violation. When officers stopped the vehicle, Hernandez was driving, and Grullon was seated in the front passenger seat. Hernandez consented to a search of the vehicle. He told the officers that he and Grullon had been in Atlanta for two days visiting a friend and that the battery in the back of the vehicle belonged to him. When the officers began asking questions about the car battery, Grullon appeared as though he might "pass out." The officers cut apart the battery and found six bricks of a substance inside, which were later tested and found to be a mixture containing heroin, weighing 465 grams.

Grullon II , 313 Ga. at 41-42 (1) (a), 867 S.E.2d 95.

2. Jury charge.

At the state's request, the trial court gave the following jury charge on deliberate ignorance:

The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter solely within your discretion.

(Emphasis supplied.) Grullon asserts two claims of error in respect to this charge, neither of which he preserved for ordinary appellate review. He argues that the trial evidence did not justify the charge, an objection that he raised at the charge conference but did not make again after the trial court charged the jury. He also argues that the charge's reference to "intent" reduced the state's burden as to that element and so misstated the law, an objection that he did not make to the trial court.

Because Grullon did not preserve these claims for ordinary appellate review, we review only for plain error. See Grullon II , 313 Ga. at 44-45 (2), 867 S.E.2d 95. See also Collins v. State , 308 Ga. 515, 519 (2), 842 S.E.2d 275 (2020) ("an objection made at the charge conference does not by itself preserve an objection to an instruction as subsequently given"). Plain error review requires the following analysis:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011) (citation and punctuation omitted; emphasis in original).

In Grullon I , we ended our plain error analysis at the first prong, concluding that Grullon had affirmatively waived his objection to the jury charge because, when the trial court asked Grullon's trial counsel if he had any objections after the giving of the charge, his counsel responded "no." Grullon I , 357 Ga. App. at 700 (2), 849 S.E.2d 291. Consequently, we did not address any other aspects of the analysis. The Supreme Court held in Grullon II that counsel's response did not constitute an affirmative waiver. Grullon II , 313 Ga. at 44-48 (2), 867 S.E.2d 95. So we now consider whether Grullon has met his burden of showing the other elements of the plain error analysis.

(a) Grullon has not shown that it was plain error for the trial court to determine that the evidence supported a charge on the subject of deliberate ignorance.

Grullon argues that the trial court erred in charging the jury on the subject of deliberate ignorance because the evidence did not support such a charge. Neither Grullon I nor Grullon II addressed or considered the merits of this claim. It was not necessary for us to do so in Grullon I given our holding that Grullon had affirmatively waived plain error review of the charge, and on certiorari the Supreme Court focused its review on our affirmative waiver holding. While the state concedes that the particular charge given in this case contained a misstatement of the law, the state disputes Grullon's assertion that the evidence did not justify a charge on the subject of deliberate ignorance. So we begin our plain error analysis by considering whether, in light of the trial evidence, the trial court obviously erred in concluding that the evidence supported a charge on deliberate ignorance. See generally Shadix v. Carroll County , 274 Ga. 560, 563-564 (1), 554 S.E.2d 465 (2001) (on remittitur of an appeal from the Supreme Court, we must enter an appropriate disposition on issues that were neither addressed nor considered by the Supreme Court).

Grullon has not shown that the trial court obviously erred in this respect. "A deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning of all of the facts in order to have a defense in the event of a subsequent prosecution." Huckabee v. State , 287 Ga. 728, 734 (6) (b) n. 7, 699 S.E.2d 531 (2010) (citations and punctuation omitted). "Slight evidence is sufficient to authorize a charge on a subject. The evidence necessary to justify a jury charge need only be enough to enable the trier of fact to carry on a legitimate process of reasoning." Koritta v. State , 263 Ga. 703, 704-705, 438 S.E.2d 68 (1994) (citation omitted).

In our earlier...