Ruiz v. State

• Decision Date: 09 November 2009
• Docket Number: No. S09A0821.,S09A0821.
• Citation: 686 S.E.2d 253,286 Ga. 146
• Parties: RUIZ v. The STATE.
• Court: Georgia Supreme Court

686 S.E.2d 253

286 Ga. 146

RUIZ v. The STATE.

No. S09A0821.

Supreme Court of Georgia.

November 9, 2009.

Brian Steel, The Steel Law Firm, P.C., Atlanta, for appellant.

Paul L. Howard Jr., District Attorney, Marc A. Mallon, Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Benjamin H. Pierman, Assistant Attorney General, for appellee.

THOMPSON, Justice.

Judgments of conviction were entered against Emmanuel Ruiz after a jury found him guilty of three counts of malice murder and possession of a handgun during the commission of a felony in connection with the shooting deaths of Joe Lurhman, David Carty, and Tracy Glover.¹ Ruiz appeals, claiming that he received ineffective assistance of trial counsel and counsel on motion for new trial, and asserting error with regard to certain jury instructions. For the reasons that follow, we affirm the judgments of conviction.

Viewed in a light most favorable to the verdict, the evidence established that Ruiz had been paid $2,500 by Joe Lurhman, the proprietor of F.J.'s Tavern, to procure drugs. Ruiz, however, failed to deliver the drugs and on the afternoon of the shooting, Lurhman made several phone calls to Ruiz attempting to collect his money. That evening, Ruiz told a friend that he intended to go to F.J.'s Tavern to kill Lurhman and everyone else in the bar. Ruiz and co-defendant Terry Brandon Harper entered F.J.'s Tavern where Harper shot and killed Lurhman and bar patron David Carty. Ruiz fatally shot bartender Tracy Glover in the parking lot as she ran from the building after shots had been fired in the bar. Ruiz and Harper returned to Ruiz's apartment where they solicited help from a friend to dispose of the two murder weapons in nearby lakes. These were later retrieved by the police and identified as belonging to Ruiz.

Later on the night of the shooting, Ruiz telephoned his girlfriend and told her, "somebody went up to F.J.'s Tavern and took everyone out." He admitted to her that he shot a woman in the parking lot because she could have been a witness to the other shootings. Harper told others that he shot Lurhman and another man who happened to be in the bar. Each victim died of multiple gunshot wounds.

At trial, Ruiz acknowledged through his attorneys that he shot and killed Glover as she ran through the parking lot, but he claimed that he "panicked" and shot her in self-defense.

1. The evidence was sufficient for a rational trier of fact to find Ruiz guilty beyond a reasonable doubt of three counts of murder and possession of a weapon in the commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Ruiz asserts that he was denied effective assistance of counsel at trial and on motion for new trial. Alternatively, he has moved this Court to remand his case to the trial court for an evidentiary hearing as to both claims. The State opposes the motion for remand on the ground that Ruiz has waived his claim of ineffective assistance of trial counsel by failing to raise it at the first practicable moment, i.e., during the motion for new trial proceedings which were reopened expressly for that purpose.

(a) Trial counsel. After conviction, trial counsel filed a timely motion for new trial on behalf of Ruiz. An order denying the motion for new trial, as amended, was entered on September 16, 2005. In a subsequent order, the trial court appointed new counsel on motion for new trial ("motion counsel") to represent Ruiz and also vacated its September 16, 2005 order for the stated "limited purpose of allowing a claim of ineffective assistance of trial counsel to be raised and heard at the earliest practicable time." Motion counsel entered an appearance on behalf of Ruiz and amended the motion for new trial, but raised no claim of ineffective assistance of trial counsel and the issue was not asserted during a hearing on the motion. The trial court denied the motion for new trial on September 29, 2008, and motion counsel filed a timely notice of appeal from that order, pursuant to which the case was docketed in this Court. Thereafter current appellate counsel entered his appearance on behalf of Ruiz and filed another notice of appeal from the September 29, 2008 order.

We agree that the claim of ineffective assistance of trial counsel has been waived since motion counsel had the opportunity to raise it, but did not do so. See Thompson v. State, 257 Ga. 386, 388(2), 359 S.E.2d 664 (1987) ("Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion."). See also Harden v. State, 278 Ga. 40(2), 597 S.E.2d 380 (2004). Under the circumstances, the only means by which Ruiz may pursue a claim of ineffective assistance of trial counsel is in a habeas corpus proceeding.

(b) Counsel on motion for new trial. To preserve the issue of ineffective assistance of previous counsel, new counsel must raise the issue at the earliest practicable opportunity of post-conviction review or the issue is waived. Simmons v. State, 281 Ga. 437(2), 637 S.E.2d 709 (2006); Smith v. State, 255 Ga. 654(3), 341 S.E.2d 5 (1986). Current appellate counsel did not undertake his representation of Ruiz until after the motion for new trial was denied and a notice of appeal had been filed. Thus, current counsel did not have the opportunity to challenge the effectiveness of motion counsel prior to this appeal.

"Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, [our appellate courts] remand the case to the trial court for an evidentiary hearing on the issue." Rosser v. State, 276 Ga.App. 261(2), 623 S.E.2d 142 (2005). The inquiry now before this Court is "whether the trial court would have granted a new trial if the claim of ineffectiveness [of trial counsel] had been raised by motion counsel." Hayes v. State, 262 Ga. 881, 883(3)(a), 426 S.E.2d 886 (1993). Remand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hayes, supra at 883(3). See also Wilson v. State, 286 Ga. 141, 686 S.E.2d 104 (2009) (when the issue of trial counsel's ineffectiveness has been raised on motion for new trial, any claims of ineffective assistance of trial counsel not raised at that time are waived; therefore, remand is improper). Under Strickland, a defendant must show that trial counsel's performance was professionally deficient, and but for counsel's unprofessional errors, there exists a reasonable probability that the outcome of the proceeding would have been more favorable. Hayes, supra.

Ruiz submits that counsel on motion for new trial rendered ineffective assistance because he failed to assert a claim of ineffective assistance of trial counsel. More specifically, Ruiz submits that trial counsel was ineffective on the sole ground that he failed to request a jury instruction on impeachment involving a crime of moral turpitude as this allegedly related to a witness for the State. The State presented overwhelming evidence from several witnesses that Ruiz and Harper planned and executed the attack on Lurhman, and that Carty was also killed in the melee. Ruiz admittedly shot and killed Glover in the parking lot as she attempted to escape from the scene. Even assuming arguendo that trial counsel's failure to request the charge constituted deficient performance, we find no reasonable probability on the record before the Court that the outcome of the trial would have been different had the charge been requested. See generally Washington v. State, 285 Ga. 541(3)(b), 678 S.E.2d 900 (2009). Thus, Ruiz has failed to show that motion counsel's failure to raise the claim as evidence of ineffective assistance of trial counsel would have resulted in a new trial. Hayes, supra at 883(3)(a). The result would be the same were we to assess motion counsel's performance under the standard for evaluating effectiveness of appellate counsel under Shorter v. Waters, 275 Ga. 581, 571 S.E.2d 373 (2002) and Battles v. Chapman, 269 Ga. 702, 506 S.E.2d 838 (1998). Since the failure to request the charge on impeachment would not result in a new trial, Ruiz has failed to show that it was an unreasonable tactical move which no competent attorney in the same situation would have made. Shorter, supra. It follows that remand is not mandated.

3. Ruiz contends that the trial court improperly instructed the jury that "[a]cquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission." OCGA § 24-3-36.

Recognizing that the potential prejudice of any comment upon a criminal defendant's silence or failure to come forward far outweighs its minimal probative value, this Court in Mallory v. State, 261 Ga. 625(5), 409 S.E.2d 839 (1991) (overruled on other grounds by Chapel v. State, 270 Ga. 151(4), 510 S.E.2d 802 (1998)), held that such a comment will no longer be allowed in a criminal case. See also Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009) (reiterating the holding in Mallory). And by implication, it follows that a charge in the language of OCGA § 24-3-36 has no place in a criminal trial because it can be construed as a comment on defendant's constitutional right to remain silent.

However, it does not follow that reversal is required. First ... erroneous jury instructions are not judged in isolation, but rather are considered in the context of the entire jury charge and the trial record as a whole to determine whether there is a reasonable likelihood that the jury has applied the challenged...