Sifuentes v. State
| Citation | 293 Ga. 441,746 S.E.2d 127 |
| Decision Date | 11 July 2013 |
| Docket Number | Nos. S13A0083,S13A0084.,s. S13A0083 |
| Parties | SIFUENTES v. The STATE. Sifuentes v. The State. |
| Court | Supreme Court of Georgia |
OPINION TEXT STARTS HERE
Louis M. Turchiarelli, Nicholas G. Dumich, Marietta, for Sifuentes.
Jesse David Evans, Asst. Dist. Atty., Anna Green Cross, Asst. Dist. Atty., Patrick H. Head, Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, for The State.
Brothers Gerardo and Eduardo Sifuentes were jointly indicted, tried, and convicted of malice murder and related offenses in connection with a shooting that caused the death of Eduardo Delgadillo and injured Mauricio Medina and Elijah Espinoza. Both Appellants appeal the denial of their respective motions for new trial, asserting insufficiency of the evidence, evidentiary error, and trial counsel ineffectiveness. Gerardo also challenges the trial court's denial of his motion for pretrial immunity based on self-defense. We find no error, except with respect to Eduardo's conviction for theft by taking, which was not supported by the evidence, and his convictions on two additional counts predicated on the theft by taking. We therefore affirm the judgment against Gerardo in its entirety, and we affirm in part and reverse in part the judgment against Eduardo.1
Construed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. Appellants are both members of a street gang known as the Nortenos or “Northsiders.” Victims Delgadillo, Espinoza, and Medina were all either members of or associated with members of a rival gang, the Surenos or “Southsiders.” The site where the shooting occurred, an Austell apartment complex known as Ivy Commons, was located within the Surenos' recognized territory. Approximately two months earlier, Ivy Commons had been the site of a physical altercation between a Norteno group and a Sureno group, during which Eduardo had broken the nose of one of the Surenos. The apartments had also been a regular site of graffiti “ tagging,” whereby one gang would deface buildings and other visible structures with its symbols, only to be destroyed by or replaced by the symbols of the other gang.
On the afternoon of the shooting, tensions had been brewing between the rival gangs over an incident earlier that day in which one of Eduardo's friends, Danny Aleman, had “disrespected” Delgadillo's wife. After hearing about the incident, Delgadillo went to Ivy Commons and confronted Aleman, and the two exchanged heated words. Delgadillo also reported the incident to several of his Sureno friends, who subsequently showed up at the apartment complex.
Eduardo was visiting his girlfriend Maria that day at her mother's home in Ivy Commons. At some point after Delgadillo confronted Aleman, Delgadillo and his friends saw Eduardo outside one of the apartment buildings. Eduardo began taunting his rivals with gang gestures; Delgadillo and his group responded with their own gang gestures, and one of the Surenos punched Eduardo in the face. Maria intervened, and Eduardo retreated to Maria's mother's apartment. Eduardo telephoned his older brother, Gerardo, related what had happened, and asked Gerardo to come to the apartment complex and to bring a gun. Jairo Ramos, a houseguest of Maria's mother, overheard Eduardo's end of the phone conversation.
Gerardo, who was at the home of his friend Larry Hulsey at the time, took a loaded 12–gauge shotgun from Hulsey's shed without Hulsey's permission or knowledge and drove to Ivy Commons. In the meantime, Ramos reported to the Sureno group that Eduardo had called someone to come over with a gun. Delgadillo asked one of his companions, Francisco Lopez, to retrieve a pistol from Delgadillo's car.
Gerardo arrived and was greeted at his car by Eduardo and Aleman. Aleman testified that, while standing at the car, Eduardo told him that he should run “if you hear the first shot.” Tensions continued to mount, and women associated with the two groups began yelling at one another. The groups began advancing towards each other, and Gerardo, who later admitted to police that he was angry at the time, brandished his shotgun. He then fired the gun, fatally striking Delgadillo in the chest and striking Medina in the back and Espinoza in the arm and torso. Lopez testified that he never gave Delgadillo's gun to him because Gerardo opened fire before he had the opportunity. After the shots were fired, Gerardo and Eduardo fled the scene. Three days later, they were arrested.
In an initial statement to police, Gerardo denied being present when the shooting occurred, but he changed his story after he was informed that several eyewitnesses had identified him as the shooter. In his subsequent statement, he maintained he had fired the gun in defense of his brother and himself. At trial, Gerardo repeated his self-defense claim, testifying that he had fired his weapon only after he saw Delgadillo reach for his waistband and after having warned the Sureno group to back up. Other witnesses testified at trial, however, that Delgadillo implored Gerardo not to shoot because there were children among the Sureno group, and that Gerardo responded, “I don't give a f – – –,” just before pulling the trigger. In addition, the lead detective testified that Gerardo had made no mention in his pretrial statements of seeing Delgadillo reach for his waistband. Forensic evidence placed Delgadillo approximately 24 to 27 feet away from where Gerardo fired the fatal shot.
Officer Edward Campuzano, a member of the Cobb Anti–Gang Enforcement Unit, testified regarding the Norteno–Sureno gang rivalry and confirmed that a search of Appellants' residence had turned up various gang-related items. In addition, the jury was shown amateur video recordings depicting Appellants and various images of gang-related graffiti, gang colors, and gang hand signs, and references to “scraps,” a derogatory term for Surenos. In one of these videos, Eduardo made reference to killing Surenos.
1. Despite both Appellants' arguments to the contrary, the evidence as set forth above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellants were guilty, either as principal or accomplice, of all the crimes of which they were convicted, with the exception of three counts against Eduardo. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also OCGA § 16–2–20 (). While Gerardo maintains he acted in defense of himself and his brother, “ ‘[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (Citation omitted.) Vega v. State, 285 Ga. 32, 33(1), 673 S.E.2d 223 (2009). See also Baldwin v. State, 263 Ga. 524(2), 435 S.E.2d 926 (1993) (). Although the evidence is unclear on whether Eduardo was standing in Gerardo's vicinity at the time the shots were fired, his exhortation to his brother to come to Ivy Commons with a gun, his warning to Aleman shortly before the shooting to run if shots were fired, and his history of threats and violence against his rivals all support his culpability as a party to the shooting committed by Gerardo. See Bolden v. State, 278 Ga. 459(1), 604 S.E.2d 133 (2004) ().
The evidence was insufficient, however, to establish Eduardo's culpability for theft by taking, as there was no evidence that Eduardo encouraged Gerardo to steal Hulsey's gun or had any knowledge that his brother had done so. Eduardo's conviction and sentence on Count 8, therefore, must be reversed. In addition, because Count 7 (the second of two criminal street gang activity counts) was predicated on the underlying crime of theft by taking, Eduardo's conviction and sentence on that count must also be reversed. 2
2. Gerardo also claims that the trial court erred by denying his pretrial motion for immunity under OCGA § 16–3–24.2.3 In reviewing the denial of motion for pretrial immunity, we must view the evidence in the light most favorable to the trial court's ruling and accept the trial court's findings of fact and credibility determinations if there is any evidence to support them. State v. Bunn, 288 Ga. 20, 701 S.E.2d 138 (2010). In his motion for immunity, Gerardo claimed that he was justified in using deadly force in defense of himself and Eduardo. See OCGA § 16–3–21(a) (). To prevail on his immunity motion, Gerardo was required to establish his justification defense by a preponderance of the evidence. Bunn v. State, 284 Ga. 410(3), 667 S.E.2d 605 (2008). Having reviewed the transcript from the pretrial immunity hearing under the above standards, we find no error in the trial court's denial of pretrial immunity.
Viewed most favorably to the trial court's ruling, the evidence at the pretrial hearing showed a history of rivalry between the Norteno and Sureno gangs; Appellants' affiliation with the Nortenos; and prior difficulties between Eduardo and members of the Surenos. The evidence further reflected that Gerardo was summoned to come to Ivy Commons by his brother in response to being punched in the face by a Sureno affiliate, and that he brought a 12–gauge shotgun, which was later found to have fired the fatal bullet. After arriving at the apartments, Gerardo saw one member of the group with a gun, but never saw it being pointed at him or his brother. Gerardo admitted to being ...
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