Navarrete v. State

• Decision Date: 28 January 2008
• Docket Number: No. S07A1456.,S07A1456.
• Citation: 283 Ga. 156,656 S.E.2d 814
• Parties: NAVARRETE v. The STATE.
• Court: Georgia Supreme Court

656 S.E.2d 814

283 Ga. 156

NAVARRETE v. The STATE.

No. S07A1456.

Supreme Court of Georgia.

January 28, 2008.

Reconsideration Denied February 25, 2008.

Michael Lawrence Brown, Alston & Bird, Atlanta, Gregory S. Coleman, Edward C. Dawson, Yetter & Warden, L.L.P., Austin, for Appellant.

John Gray Conger, Dist. Atty., Stacey Sherrard Jackson, Asst. Dist. Atty., David R. Helmick, Asst. Dist. Atty., Robin Joy Leigh, Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., for Appellee.

THOMPSON, Justice.

Mario Roberto Navarrete was convicted of felony murder, aggravated assault, and other crimes arising from the stabbing death of Richard Davis.¹ On appeal, Navarrete asserts that the evidence was constitutionally insufficient to support his convictions, that the trial court improperly admitted certain hearsay testimony under the necessity exception, and that he was denied effective assistance of trial counsel. Finding no reversible error, we affirm.

Viewed in a light most favorable to the verdict, the evidence established that Navarrete, his co-indictees Jacob Burgoyne, Douglas Woodcoff, and Alberto Martinez, as well as the victim, Richard Davis, served together as infantrymen in the United States Army.²

The crimes occurred soon after the five men returned to Fort Benning, Georgia, from a six-month deployment to Iraq and Kuwait. On the evening in question, Martinez drove Navarrete, Burgoyne Woodcoff, and Davis to a Hooters restaurant to celebrate their homecoming. On the way there, Martinez showed the others a new knife which he kept in the console of his car. The five men spent the next few hours at the restaurant having dinner and consuming several pitchers of beer. Martinez then drove them to an adult entertainment club. At some point in the evening, the club's bouncer approached Woodcoff and Martinez and asked them to remove Davis because he was visibly intoxicated. Woodcoff and Martinez escorted Davis to Martinez's car, placed him in the back seat, and returned to the club where they continued drinking. Approximately two hours later, the four men left the club and returned to the car. Burgoyne pulled Davis out of the back seat and without provocation, began to beat him, The others stood by but made no attempt to stop the fight. Subsequently, the five men again got into Martinez's car; Navarrete and Burgoyne sat in the back seat with Davis between them, and Woodcoff was in the front passenger seat. Martinez drove to a rural, wooded area about 20 minutes away. During the drive, Navarrete and Burgoyne continued to beat Davis, despite Woodcoff's entreaties for them to stop.

Martinez stopped the car, and ordered everyone to get out. Martinez, Burgoyne, and Navarrete formed a circle around Davis. Burgoyne struck Davis several times and Davis began to walk toward Martinez and Navarrete. Martinez then produced a knife and stabbed Davis, causing him to fall to the ground. Navarrete and Burgoyne urged Martinez to stop the attack but Martinez disregarded their pleas; Burgoyne then walked back to the car and Navarrete followed. Moments later, Davis got to his feet but Martinez grabbed him around the neck and resumed stabbing him. Davis fell to his knees and the attack continued with Martinez inflicting a minimum of 33 knife wounds. The others observed but did nothing to aid Davis. After Davis stopped moving, Martinez and Burgoyne placed his body further into the woods and removed his identification. The four men returned to the car and Martinez drove a short distance to a clearing where they made the decision to burn the body. Martinez drove to a convenience store and. Burgoyne collected money from the others to purchase lighter fluid and matches. Upon returning to the crime scene, Martinez and Burgoyne poured lighter fluid on the body and set it on fire; Navarrete and Woodcoff remained in the car. Martinez then drove the men to their barracks at Fort Benning.

Several days later Martinez returned to the crime scene where he detected the odor of the victim's decaying body and he decided to bury it. He, along with Navarrete and Burgoyne, returned to the scene that night supplied with latex gloves, a shovel, and a change of clothes. Navarrete stood lookout while Burgoyne attempted to bury the body.

1. Navarrete asserts that the evidence only establishes his "mere presence" during the commission of the offense of aggravated assault and felony murder predicated on aggravated assault. Thus, he claims that the evidence was insufficient to support those convictions.

"Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20(a). "`While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.' [Cit.]" Strozier v. State, 277 Ga. 78, 79(2), 586 S.E.2d 309 (2003). See also Byrum v. State, 282 Ga. 608(1), 652 S.E.2d 557 (2007). Compare James v. State, 260 Ga.App. 350(1), 579 S.E.2d 750 (2003) (evidence insufficient where defendant was not present during the crimes and conduct before and after did not support the inference that he knew of the plan and shared in the criminal intent).

Navarrete's intent to commit the crimes may be inferred from evidence that he assaulted Davis in the back seat, of the car during the 20-minute drive to the wooded area, that he participated in the plot to burn the body, that he did not attempt to report the crime in the days following the murder even when questioned by the military authorities, and that he stood lookout while Martinez and Burgoyne buried the body days later. In addition, Navarrete was aware in advance of the stabbing that Martinez was armed with a knife and he stood by and watched Martinez commit an aggravated assault on Davis before he made any effort to intervene.

The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Navarrete was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Over Navarrete's hearsay objection, Army medic Edward Wulff was permitted to testify about an incident that occurred in Iraq just prior to the unit's redeployment to Fort Benning. Wulff testified that he was attached to the same platoon as Navarrete and Davis and that he and Davis had become good friends. One night Davis came to his barracks and awakened him seeking treatment for a wound to the back of his hand. Wulff testified that he asked Davis how he injured his hand, and that Davis replied he had been drinking with Martinez and Navarrete and they decided to become "blood brothers"; Martinez and Navarrete hit him and choked him; and Davis thought they were going to kill him. It was also elicited from Wulff that Davis was extremely intoxicated when he made these remarks, and when Wulff advised Davis to report the incident, Davis refused and stated that if anyone were to ask him about it, he would lie and say he fell and caught his hand in a thorn bush. The next morning, Wulff sought out Martinez and Navarrete and inspected their hands for injuries, but observed none. Wulff did not report the injury or the alleged threat because he thought it was just a "drunk thing" and not really serious. The trial court admitted the evidence under the necessity exception to the hearsay doctrine.³

In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: "necessity" and "particularized guarantees of trustworthiness." [Cits.] "Necessity" is demonstrated when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of "particularized guarantees of trustworthiness" is satisfied when the declaration is coupled with "circumstances which attribute verity to [the declaration]."

Culmer v. State, 282 Ga. 330, 331(2), 647 S.E.2d 30 (2007). Without deciding whether the hearsay was "necessary" under the foregoing test, we hold that the declarations lacked the requisite component of "trustworthiness" and, therefore, should not have been admitted under the necessity exception.

In evaluating the trustworthiness element, the trial court should look to the totality of the circumstances surrounding the making of the declaration. Belmar v. State, 279 Ga. 795(2), 621 S.E.2d 441 (2005). Our review of the record persuades us that the State, as proponent of the hearsay, failed to demonstrate sufficient indicia of trustworthiness for the statements to be admissible under the necessity exception. While a close relationship between Davis and Wulff may militate in favor of admission, see Turner v. State, 281 Ga. 647(3)(a), 641 S.E.2d 527 (2007), that one factor alone is not dispositive, especially where the totality of the circumstances dictate otherwise. See Carr v. State, 267 Ga. 701(3), 482 S.E.2d 314 (1997), overruled on other grounds, Clark v. State, 271 Ga. 6(5), 515 S.E.2d 155 (1999). See also Paul S. Milich, Georgia Rules of Evidence, 2d. Ed., § 19.32.

Wulff acknowledged that Davis was intoxicated when he made the statements, and Wulff dismissed the alleged threats on Davis' life as the ramblings of a "drunk" person. See Messick v. State, 276 Ga. 528(3), 580 S.E.2d 213 (2003) (statements to a self-described acquaintance after an all-day drinking session lacked sufficient guarantees of trustworthiness and were inadmissible under the necessity exception). See also U.S. v. Two Shields, 497 F.3d 789 (8th Cir.2007) (extreme intoxication is one consideration in the totality of the circumstances evaluation of the reliability of a hearsay statement). Since Davis had consumed the alcohol at the time that Navarrete and Martinez made the alleged...