Tavarez v. State

• Court: Georgia Supreme Court
• Writing for the Court: Peterson, Presiding Justice.
• Citation: Tavarez v. State, 904 S.E.2d 366 (Ga. 2024)
• Docket Number: S24A0532
• Decision Date: 02 July 2024
• Parties: TAVAREZ v. The STATE.
• topic: Criminal procedure,Civil Procedure

904 S.E.2d 366

TAVAREZ

v.The STATE.

S24A0532

Supreme Court of Georgia.

Decided: July 2, 2024

Superior Court, DeKalb County, Gregory A. Adams, Judge

Daniel Horne Petrey, Dekalb County Public Defender’s Office, 320 Church Street, Decatur, Georgia 30030, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Deborah D. Wellborn, A.D.A., Sherry Boston, District Attorney, Jason Matthew Rea, A.D.A., Dekalb County District Attorney’s Office, 556 North McDonough Street, Decatur, Georgia 30030, for Appellee.

Peterson, Presiding Justice.

Edward Tavarez appeals his convictions for malice murder and other offenses arising from the shooting of Travis Ridley during a putative drug deal.¹ Tavarez argues that his trial counsel rendered ineffective assistance by failing to object to hearsay testimony by a detective that "bolster[ed]" the account of a key witness. He also argues that the trial court erred by conducting the trial while Tavarez’s legs were shackled, forcing him to choose between not participating in bench conferences or the jury seeing him in these restraints. We conclude that Tavarez has not shown that any deficient performance of counsel in failing to object to the detective’s testimony prejudiced Tavarez’s defense. Tavarez failed to preserve his claim about the shackling itself, and he has not shown that he was excluded from any particular bench conference at which he had a right to be present. We therefore affirm.

The evidence admitted at trial showed the following.² On June 1, 2017, Ridley was fatally shot in the breezeway of an apartment complex. Ridley’s on-and-off-again girlfriend, Erica Shavers, gave the following account at trial. On the day of the shooting, Ridley picked up Shavers at her home, carrying a bag of $26,000 in cash. Based on what she overheard, Shavers understood that Ridley planned to purchase some marijuana. Ridley and Shavers drove in his purple Dodge Challenger to a building in which Ridley was attempting to open some sort of store. Ridley’s friend, known as "Q," appeared at the store, with a money-counting device. A little later, Abel Asmelash and Rafael Nin-Polanco appeared in a silver Mercedes.³ Ridley and Shavers followed the silver Mercedes to a gas station. While Ridley and Shavers were at the gas station, Q brought Ridley a gun at Ridley’s request. Ridley and Shavers then followed the silver Mercedes to the parking deck of a DeKalb County apartment complex. While Ridley and Shavers waited in the car, Asmelash left the parking deck via an apartment-complex breezeway, and Nin-Polanco drove away to let another individual into the parking deck. After a few minutes, a different Mercedes (a white one) driven by Tavarez entered the deck and parked. Asme- lash returned from the breezeway, entered the parked, white Mercedes, and sat with Tavarez for a moment. Ridley, Shavers, Asmelash, and Tavarez then got out of their cars and all walked into the breezeway, with Tavarez walking ahead and Shavers carrying the bag of money. Once in front of a particular apartment that Tavarez claimed was his, Tavarez pulled out a gun, stated, "you think it’s a game," and demanded that Ridley turn over his phone, watch, and everything in his pocket. Asmelash took the bag of money out of Shavers’s hand and "vanished." Ridley threw his watch, phone, and the cigarette pack that had been in his pocket on the ground. Tavarez then shot Ridley multiple times, with Ridley returning fire as he fell to the ground.

Aspects of Shavers’s testimony were corroborated by video surveillance recordings from a parking lot outside the store, two gas stations, and the apartment complex, which were played for the jury, although none of these recordings showed Ridley’s encounter with Tavarez. The surveillance video captured Ridley arriving at the store on the day of the shooting and showed him carrying a small, white, drawstring bag and cell phone and wearing a watch, and the video showed him still carrying the bag and cell phone and wearing a watch after he reemerged from the store.

A tag for the white Mercedes showed that the car was registered to Jeanmarie Gonzalez, but Tavarez recently had been stopped by police driving that car, and his connection to Gonzalez was evidenced by social media. According to a detective, Shavers identified Tavarez in a photo lineup.

A Taurus handgun found underneath Ridley’s body contained 14 rounds, out of a maximum capacity of 15. One shell casing and one bullet fragment collected at the scene of the shooting were fired from that gun. A pack of cigarettes was found at the scene, but Ridley’s cell phone, watch, and bag of money never were recovered by police.

The medical examiner identified the cause of death as gunshot wounds to the torso and extremities. The evidence showed that one of Ridley’s wounds, a gunshot wound to the foot, was self-inflicted.

Text messages between Tavarez and Gonzalez showed that Gonzales texted Tavarez the day before the shooting saying she was concerned about paying rent, and he texted her hours after the shooting, telling her not to "worry about rent."

Tavarez did not testify, although he gave a pre-trial statement that was played for the jury, telling officers that he was supposed to sell marijuana to Ridley on behalf of "Rafael," so he could make his rent, and that he was not trying to rob Ridley. Tavarez stated that Ridley pulled his gun and shot at Tavarez first, and that Tavarez shot Ridley in self-defense.⁴ His lawyer maintained a justification defense at trial.

1. Tavarez argues that counsel was ineffective for failing to object to testimony by a detective repeating statements by Shavers, thereby "bolstering" her testimony. We disagree.

Detective Corey Van Alen testified at trial about various matters. Although by that point Shavers already had testified at length, a significant portion of Detective Van Alen’s testimony involved relaying what Shavers told him about events leading up the shooting, including that when Tavarez stopped in front of a particular apartment door, he turned around with a gun. Trial counsel did not object until the detective was asked what Shavers said was in the bag that she was carrying as she walked down the apartment complex breezeway, and the detective answered that Shavers said it contained $26,000 in cash. Tavarez’s counsel objected on hearsay grounds, and Asmelash’s counsel interjected that the testimony amounted to bolstering, an objection with which Tavarez’s counsel agreed. The State responded that this was "all part of the course of the investigation which is necessary to complete the story for the jury." The trial court stated that it would overrule the objection "at this time" but instructed the prosecutor to "narrowly focus on what you want him to testify to." As the prosecutor continued to have the detective narrate what happened just prior to the shooting (albeit without saying explicitly that Shavers was the source of his knowledge), Asmelash’s counsel stated that she had the "same objection," an unrecorded bench conference was conducted, and the trial court sustained the objection. Asmelash’s counsel raised a similar objection a few questions later, and the objection again was sustained after an off-the-record bench conference, with Tavarez’s counsel noting on the record that he had joined in the objection. The trial court sustained an objection to similar testimony soon after without Asmelash’s counsel even stating the basis for her objection.

[1–5] To prove his claim of ineffective assistance of counsel, Tavarez must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced Tavarez’s defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "If [a defendant] fails to establish one of these two prongs, we need not examine the other." Payne v. State, 314 Ga. 322, 328 (3), 877 S.E.2d 202 (2022) (citation and punctuation omitted). "To show deficient performance, the defendant must demonstrate that counsel performed counsel’s duties in an objectively unreasonable way, considering all of the circumstances and in the light of prevailing professional norms." Id. at 328-329 (3), 877 S.E.2d 202 (citation omitted). "To establish prejudice, [a defendant] must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different." Id. at 329 (3), 877 S.E.2d 202 (citation and punctuation omitted). "When evaluating whether an appellant has established prejudice under Strickland, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done rather than in the light most favorable to the verdict." Harmon v. State, 319 Ga. 259, 265 (3), 903 S.E.2d 28 (Case No. S24A0158, decided June 11, 2024) (citations and punctuation omitted).

[6, 7] Tavarez argues on appeal that the failure to object sooner to the detective’s testimony relaying what Shavers told him constituted ineffective assistance of counsel because the testimony was hearsay and constituted "improper bolstering" of Shavers’s testimony. But even assuming that counsel performed deficiently in failing to object to the detective’s testimony about what Shavers told him, Tavarez has not shown that he was prejudiced by this failure. Even without the detective’s testimony about what Shavers told him, the evidence against Tavarez still was very strong. Shavers testified that Tavarez pulled out a gun once they reached a particular apartment and demanded Ridley turn over his valuables, while an accomplice grabbed the bag of money that Shavers had been holding. Shavers testified that Ridley did not shoot at Tavarez first, as Tavarez claimed, but rather...