Lizana v. The State
| Citation | 287 Ga. 184,695 S.E.2d 208 |
| Decision Date | 17 May 2010 |
| Docket Number | No. S10A0382.,S10A0382. |
| Parties | LIZANAv.The STATE. |
| Court | Supreme Court of Georgia |
287 Ga. 184
695 S.E.2d 208
LIZANA
v.
The STATE.
No. S10A0382.
Supreme Court of Georgia.
May 17, 2010.
Julia F. Slater, Dist. Atty., Crawford L. Seals, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for appellee.
CARLEY, Presiding Justice.
After a jury trial, Ricardo Ray Lizana was acquitted of malice murder and found guilty
1. Construed most strongly in support of the verdicts, the evidence shows that, after Lizana's girlfriend left her apartment, the victim drove up and gave her a hug and a kiss on the cheek. Lizana then came out of the apartment, grabbed the victim, who never resisted, and hit him. When the victim fell to the ground, Lizana repeatedly stomped and kicked him. The victim died from multiple catastrophic injuries to his head and neck. The evidence was sufficient to authorize a rational trier of fact to find Lizana guilty beyond a reasonable doubt of felony murder while in the commission of aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Dasher v. State, 285 Ga. 308, 309(1), 676 S.E.2d 181 (2009).
2. The felony murder count of the indictment alleged that Lizana unlawfully caused the death of the victim, while in the commission of aggravated assault, “by striking [him] about the head and body, using his hands and feet as objects likely to, and which actually did result in serious bodily injury....” Lizana contends that trial counsel was ineffective in failing to demur to this count, or to file a motion in arrest of judgment after the conviction, on the ground that the indictment did not allege the essential element that Lizana's hands and feet were objects which, “when used offensively,” were likely to or actually did result in serious bodily injury.
To prevail on this claim, [Lizana] must show that [his] attorney's performance was deficient and that, but for that deficient representation, there is a reasonable probability that the proceeding would have ended differently Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).... We must accept the trial court's factual findings and credibility determinations unless they are clearly erroneous, but we apply the appropriate legal principles to the facts independently. [Cit.]
Silvers v. State, 278 Ga. 45, 46(2), 597 S.E.2d 373 (2004).
“[D]ue process of law requires that the indictment on which a defendant is convicted contain all the essential elements of the crime.” Borders v. State, 270 Ga. 804, 806(1), 514 S.E.2d 14 (1999). The essential elements of aggravated assault...
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...are clearly erroneous, but we apply the appropriate legal principles to the facts independently. (Cit.)” [Cit.]Lizana v. State, 287 Ga. 184, 185(2), 695 S.E.2d 208 (2010). (a) Reed claims that trial counsel was ineffective in failing to raise in an appropriate manner the issue of the suffic......
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...must charge every essential element of an offense.” (citation omitted)), and it has a constitutional foundation, see Lizana v. State, 287 Ga. 184, 185, 695 S.E.2d 208 (2010) (“ ‘(D)ue process of law requires that the indictment on which a defendant is convicted contain all the essential ele......
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...314 S.E.2d 662 (1984). Due process requires that the indictment contain all the essential elements of the crime. Lizana v. State, 287 Ga. 184, 185 (2), 695 S.E.2d 208 (2010). Here, the indictment tracked the language of the statute, included all essential elements of the offense, and was, t......