Grullon v. State

• Decision Date: 14 December 2021
• Docket Number: S21G0485
• Citation: 867 S.E.2d 95,313 Ga. 40
• Parties: GRULLON v. The STATE
• Court: Georgia Supreme Court

313 Ga. 40

867 S.E.2d 95

GRULLON

v.The STATE

S21G0485

Supreme Court of Georgia.

Decided: December 14, 2021

Stephen Elijah Brown-Bennett, Taylor Lee & Associates, LLC, 6855 Jimmy Carter Boulevard, Building 2100, Suite 2150, Norcross, Georgia 30071, for Appellant.

Michael Wayne Tarleton, Tarleton Law, LLC, 1800 Peachtree Rd NW, Suite 300, Atlanta, Georgia 30309, Clifford Louis Kurlander, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Amicus Appellant.

Patsy A. Austin-Gatson, District Attorney, Christopher Mark DeNeve, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, Norris S. Lewis, Jr., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30043, for Appellee.

LaGrua, Justice.

In September 2017, a jury found Victor Grullon guilty of trafficking heroin, and the trial court sentenced him to serve 30 years in prison. Grullon appealed, challenging the sufficiency of the evidence and arguing that the trial court gave an erroneous jury charge on deliberate ignorance. The Court of Appeals affirmed Grullon's conviction, concluding that the evidence was constitutionally sufficient under Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and that Grullon did not show "reversible error because he affirmatively stated to the trial court that he had no objection after the jury was charged." Grullon v. State , 357 Ga. App. 695, 695, 849 S.E.2d 291 (2020). We granted certiorari to decide whether the Court of Appeals correctly held that Grullon affirmatively waived his claim that the trial court gave an erroneous jury instruction on deliberate ignorance. Because we answer this question in the negative, we reverse that portion of the judgment of the Court of Appeals.

1. Pertinent Facts and Procedural History

(a) Factual Background

The underlying facts, as summarized by the Court of Appeals, see Grullon , 357 Ga. App. at 696-697 (1), 849 S.E.2d 291, show that in 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.

(b) Trial court proceedings

In January 2017, Grullon was indicted by a Gwinnett County grand jury, together with Enciso-Rodriguez and Hernandez,¹ on one count of trafficking in morphine, opium, or heroin under OCGA § 16-13-31 (b).² Grullon's case proceeded to trial in September 2017. During the charge conference, the State requested that the trial court give the following jury instruction on deliberate ignorance,³ citing Perez-Castillo v. State , 257 Ga. App. 633, 635, 572 S.E.2d 657 (2002) :

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.

Grullon objected to the State's requested charge, asserting that this charge should not be given in circumstances where the evidence "points to either actual knowledge or no knowledge on the part of the defendant," and the State had argued that Grullon had a basis for actual knowledge in this case. The trial court overruled Grullon's objection and gave the State's requested charge on deliberate ignorance.

When the trial court completed the final instructions to the jury, the trial court asked the parties whether there were any exceptions, and Grullon's trial counsel replied, "No, sir, Judge." Grullon was convicted by the jury of trafficking in 28 or more grams of a mixture containing heroin under OCGA § 16-13-31 (b) (3) and sentenced to 30 years in prison.

Grullon subsequently filed a motion for new trial, asserting that there was insufficient evidence for the jury to find he was in constructive possession of the drugs and that the trial court gave an erroneous jury charge on the issue of deliberate ignorance. With respect to the jury charge, Grullon argued that the trial court erred in giving this instruction because it unconstitutionally reduced the State's burden of proof by conflating the "knowledge" and "intent" elements of the offense – a different argument than the one he raised when he objected to the instruction at the charge conference. The trial court denied Grullon's motion for new trial, and Grullon appealed his conviction to the Court of Appeals.

(c) Grullon's appeal to the Court of Appeals

On appeal, Grullon challenged the sufficiency of the evidence and asserted that the trial court erred in giving the deliberate ignorance charge "because the charge equated intent with knowledge." Grullon , 357 Ga. App. at 700 (2), 849 S.E.2d 291. The State conceded on appeal that this charge was erroneous, but argued that the error was harmless. See id. See also Matos-Bautista v. State , 353 Ga. App. 773, 778 (1), 839 S.E.2d 260 (2020) ("[A] charge on deliberate ignorance that equates intent with knowledge, or which tends to confuse those concepts, is erroneous."). Without addressing whether the trial court committed an obvious error in giving this charge or if any error was harmful, the Court of Appeals concluded that

Grullon did not preserve this claim of error for regular appellate review. Although he objected to the charge at the charge conference (albeit on different grounds), Grullon did not object to the charge at the time it was given. For that reason, his claim that the trial court erred by giving the charge is subject to review only for plain error.

And Grullon cannot show plain error, which among other things requires a showing that the error has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011) (citation omitted). After giving the charge to the jury, the trial court asked if Grullon had any objection to it, and his trial counsel responded "no." By affirmatively stating that he had no objection to the charge to the jury, Grullon waived any claim that the charge was improper, meaning that he cannot show plain error. See Lee v. State , 347 Ga. App. 508, 512 (2) (b), 820 S.E.2d 147 (2018).

Grullon , 357 Ga. App. at 700 (2), 849 S.E.2d 291 (punctuation omitted). The Court of Appeals accordingly affirmed the trial court. See id.

For the reasons that follow, we conclude that the Court of Appeals erred in identifying affirmative waiver under the facts of this case, and, thus, we reverse this division of the Court of Appeals’ decision and remand the case for reconsideration of other elements of plain error review.⁴

2. Analysis

(a) Grullon did not affirmatively waive his claim that the trial court erred in giving an erroneous jury instruction.

Under OCGA § 17-8-58,

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence.

(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.

Such

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