Pena v. State

• Decision Date: 29 June 2015
• Docket Number: No. S15A0430.,S15A0430.
• Citation: Pena v. State, 297 Ga. 418, 774 S.E.2d 652 (Ga. 2015)
• Parties: PENA v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 418

774 S.E.2d 652

PENA

v.The STATE.

No. S15A0430.

Supreme Court of Georgia.

June 29, 2015.

Sharon Lee Hopkins, Duluth, for appellant.

Daniel J. Porter, Dist. Atty., Tracie H. Cason, Christpher M. Quinn, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Michael A. Oldham, Asst. Atty. Gen., for appellee.

Opinion

HUNSTEIN, Justice.

Flavio Garay Pena was convicted of malice murder and related crimes in connection with the death of Jose David Cruz Hernandez. Pena appeals the denial of his amended motion for new trial, contending that the evidence was insufficient for a jury to find him guilty; the trial court erred in refusing to strike a juror for cause, denying his motion to exclude his custodial statement, excluding certain testimony, and giving an improper jury charge; and his trial counsel rendered ineffective assistance. Finding no error, we affirm.¹

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. At approximately 3:30 a.m. on the morning of November 4, 2007, Gwinnett County police responded to a call about a fight in the Arnold Road area and encountered Pena and another man walking down the road. The officers observed that the bottoms of both legs on Pena's jeans were “completely encircled” with blood and that he had blood on the top of his work boots. Pena told the officers that he was “fighting a friend,” the friend made him mad, and he “kicked his a* *.” When one of the officers asked Pena if he used any weapons on his friend, Pena responded that he did not need any weapons, and he started to laugh and pointed at his bloodied boots. During this time, Pena never indicated to the officers that he was frightened of this friend or that this friend had attacked him. Officers arrested Pena for disorderly conduct. Additionally, neither the officers who encountered Pena on the road nor the officer who booked him into the detention center noticed any injuries on him, and Pena did not indicate that he had been injured. Later that same day, officers discovered the deceased victim, subsequently identified as Jose David Cruz Hernandez, lying face down in a drainage ditch near Arnold Road. The victim's face appeared to have been pushed or driven into the ground, a large area of pooling blood surrounded his head and upper torso, and there was blood spatter on the grass and road near the victim's body.

The medical examiner testified that the victim suffered numerous injuries, including the following: several depressed skull fractures at the top and back of the head, hemorrhaging inside the skull, fractures in the bones of each cheek that caused the right side of the face to be “flattened,” injuries to the forearms consistent with defensive wounds, a tear to the brain stem, and a partially torn right ear, separated from the head. The tread-like pattern of bruising on the victim's left cheek suggested to the medical examiner that the bruising could have been caused by footwear. The medical examiner also opined that a significant amount of trauma to the victim's head occurred while “the head [was] down and supported against a firm surface, such as the ground, and with multiple blows occurring ... in that position.” The medical examiner identified the cause of death as blunt force trauma to the head, and she testified that it would have required “a significant amount of force” to cause the extensive fracturing of the skull that the victim suffered. Additionally, testing showed that DNA from blood recovered from Pena's jeans and boots matched the victim's DNA.

During Pena's subsequent police interview, Pena explained that he and the victim were walking down a roadway after leaving a club where they had been drinking. The victim began to “insult” Pena and then threatened him by repeatedly telling Pena that he was going to kill him. Pena believed that the victim was holding a broken bottle behind his back and was “scared” that the victim was going to kill him. Pena struck the victim with his hand, and the victim fell to the ground. Pena encouraged the victim to get up, but each time the victim attempted to rise, Pena kicked him. Although Pena initially stated that he did so to prevent the victim from hitting him, he later stated that he did not think that the victim would have been able to get up and that he continued to kick the victim “[b]ecause he made [Pena] mad.” Pena stated that he did not know whether the victim was alive or dead when he left him, and Pena “chuckled” as he indicated that he kicked the victim approximately 30 times. Finally, Pena noted that he and the victim had had prior difficulties.

1. The evidence as described above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The issues of witness credibility and whether a killing is justified or intentional and malicious are for the jury, “and the jury is free to reject a defendant's claim that he acted in self-defense.” White v. State, 287 Ga. 713, 715(1)(b), 699 S.E.2d 291 (2010) (citation omitted). Pena contends that the State failed to prove beyond a reasonable doubt that he “was not acting as a reasonable person with battered person syndrome would [act] in the ... presence of a real threat when [the victim] told [Pena that] he would kill him.” See Chester v. State, 267 Ga. 9(2), 471 S.E.2d 836 (1996) (explaining that battered person syndrome evidence is admissible and relevant in a proper case as a component of justifiable homicide by self-defense). However, for the reasons discussed in Division 5, infra, the trial court properly did not allow the introduction of any evidence that Pena suffered from battered person syndrome.

2. Pena argues that the trial court abused its discretion in refusing to strike Juror 25 for cause because the prospective juror was biased. During voir dire, Juror 25 stated that he would “find it difficult to be somewhat impartial due to the fact that [Pena] beat somebody to death ... versus it being impulsive, shooting somebody,” and that he found it difficult to believe that a person could beat another person to death for ten to 15 minutes. However, upon further questioning, Juror 25 indicated that he had not formed an opinion as to the guilt or innocence of the defendant, was prepared to listen to the facts, would not ignore the trial court's instructions, could listen to the evidence in the case and reach a decision based on that evidence, and believed that he could be fair and impartial. Based on these statements, the trial court refused to strike Juror 25 for cause. As this juror did not “express[ ] a position that was so fixed and definite that [he] would not be able to decide the case based on the evidence and the trial court's instructions,” we do not find any manifest abuse of discretion in the trial court's refusal to strike this juror for cause. See Grimes v. State, 296 Ga. 337, 343–344(1)(c), 766 S.E.2d 72 (2014). See Cade v. State, 289 Ga. 805(3), 716 S.E.2d 196 (2011).

3. Pena contends that the trial court erred in denying a motion to exclude his custodial statement. Specifically, he alleges that the Spanish² version of the Miranda³ warnings he was given did not adequately inform him of his constitutional rights. In support of his claim, he points to testimony in the record that the detective used “made-up” Spanish words and made mistakes in gender, accent, pronunciation, formality, and conjugation when giving the Miranda warnings to Pena.

“The trial court determines the admissibility of a defendant's statement under the preponderance of the evidence standard considering the totality of the circumstances.” Sosniak v. State, 287 Ga. 279, 279(1), 695 S.E.2d 604 (2010) (citations and punctuation omitted). Furthermore, we have explained:

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.... [T]his Court has identified three corollaries of th[is] principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

Hughes v. State, 296 Ga. 744, 746(1), 770 S.E.2d 636 (2015) (citations and footnotes omitted).

The testimony at the Jackson–Denno⁴ hearing showed the following. A Spanish-speaking detective gave Pena his Miranda warnings and assisted in communications between Pena and another detective during Pena's interview. A certified court interpreter, who had reviewed a videotape of the interview, testified that the Spanish-speaking detective told Pena the following in Spanish at the beginning of the interview: “before we talk, I have to tell you about your rights”; “you have to understand your rights”; “you can stay silent”; “[a]nything you say would be used against you in court”; “[y]ou can have an attorney before or after”; “[i]f you don't have enough money to pay for an attorney, then you can ask for one to be appointed to you”; “this person could be present during any interrogation”; “do you wish to answer any questions without an attorney being present?”; and “you can stop the interrogation at any time.” The interpreter testified that the detective “mispronounced” the Spanish word for “interrogation” and used “a made up word” that sounded similar to the Spanish word for “name” in explaining to the defendant that he...