Ventura v. State, No. S08A0074.

CourtSupreme Court of Georgia
Writing for the CourtMelton
Citation663 S.E.2d 149,284 Ga. 215
Docket NumberNo. S08A0074.
Decision Date30 June 2008
PartiesVENTURA v. The STATE.
663 S.E.2d 149
284 Ga. 215
VENTURA
v.
The STATE.
No. S08A0074.
Supreme Court of Georgia.
June 30, 2008.
Reconsideration Denied July 25, 2008.

[663 S.E.2d 150]

Hall, Booth, Smith & Slover, J. Louise Dietzen, Kevin A. Leipow, J. Brown Moseley, Atlanta, for appellant.

Patrick H. Head, Dist. Atty., Amelia G. Pray, Dana J. Norman, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Elizabeth A. Harris, Asst. Atty. Gen., for appellee.

MELTON, Justice.


Following a jury trial, Juan Hernandez Ventura was found guilty of malice murder in connection with the shooting death of Franklin Paguada.1 On appeal, Ventura contends that the evidence was insufficient to sustain his conviction, that the trial court erred in admitting into evidence statements that he made to police and statements that the victim made after being shot, and that his trial counsel was ineffective. We affirm.

1. Viewed in the light most favorable to the verdict, the evidence reveals that at 3:13 a.m. on October 21, 2001, Cobb County Police Officer Anthony Vazquez pulled over Freddie Castro for driving with his lights off and swerving. At the time, Castro

663 S.E.2d 151

was accompanied by Paguada and one other passenger. Officer Vazquez, assisted by Officer C.J. Mabe, arrested Castro for DUI. The officers impounded the vehicle and allowed Paguada and the other passenger to walk away.

Just before the passengers were allowed to walk away, Officer Vazquez received a call about a robbery in progress across the street at Summit Creek Apartments. Officer Mabe responded to the call. Another officer, Allen Collar, also responded to the call. At the scene of the purported robbery, Officers Mabe and Collar found Ventura, who was highly intoxicated, standing near a small white car with one of its doors open. Ventura told the officers that two men had stolen 1,000 and a .40 caliber pistol from him. Officer Mabe took a report. Officer Collar searched the area, but found nothing, and the officers left the scene.

[284 Ga. 216] About an hour later, Ventura called the police, saying that he had one of the robbery suspects in custody in the back of his truck at the Summit Creek apartment complex. Officers Mabe and Collar went to the scene, where they found Ventura, still intoxicated, holding Paguada at gunpoint, with Paguada sitting in the back of a truck. Ventura handed his .32 caliber Smith & Wesson to Officer Mabe, who unloaded it and gave the empty weapon to Ventura's son, who was also at the scene. The officer recognized that Paguada could not have been involved in the alleged armed robbery because, at the time that the robbery had allegedly occurred, Paguada was involved in the DUI traffic stop across the street. Paguada did not want to pursue the incident, and he left, walking south on Six Flags Drive. Officer Mabe asked Ventura's son to park the truck, take Ventura inside, and help him sober up.

At about 4:55 a.m., Ventura's neighbor, Darrell Lowe, saw Ventura sitting in a small car in the apartment complex parking lot. Ventura told Lowe that he had been robbed, and that he had called the police, but the police did not really do anything. Lowe told Ventura to let the police handle the matter, but Ventura showed Lowe a handgun and said that he would handle it himself. Ventura then drove off in the red car.

A small car stopped near Paguada as he was walking along Six Flags Drive, and the person inside the car fired two shots at him. Paguada was shot once in the chest. Paguada tried to continue walking after being shot, but collapsed and lost consciousness in some bushes when he was no longer able to do so. When Paguada's friends, the Moradel brothers, found him on Six Flags Drive at around 1:00 p.m. on October 21, 2001, Paguada was still alive. Paguada told the Moradel brothers to take him to the hospital. While the Moradel brothers drove him to the hospital, he informed them that, although he did not know the man's name, the man who had shot him was the same one who had earlier accused him of stealing a gun and had called the police to the scene. Paguada also gave a description of the shooter that matched Ventura, and further identified the shooter as "Chispero's brother." Ventura's brother's nickname was "Chispero." Paguada later died at the hospital from his gunshot wound.

The evidence was sufficient to enable a rational trier of fact to find Ventura guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 16-5-1(a).

2. Ventura contends that the trial court erred in admitting into evidence statements that Paguada made to the Moradel brothers several hours after he had been shot. However, "[d]eclarations by any person in the article of death, who is conscious of his condition, [284 Ga. 217] as to the cause of his death and the person who killed...

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53 practice notes
  • Morris v. State, A16A1960
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 2017
    ...was based not upon facts he personally observed but upon information gleaned from other investigators).42 See, e.g., Ventura v. State, 284 Ga. 215, 218 (4), 663 S.E.2d 149 (2008) ("The failure to pursue a futile objection does not amount to ineffective assistance.").43 Denny v. St......
  • Betancourt v. State, Nos. A13A0289
    • United States
    • United States Court of Appeals (Georgia)
    • October 21, 2013
    ...39.See Daniels, 296 Ga.App. at 799–800(5)(a), 676 S.E.2d 13;King, 287 Ga.App. at 378(2)(b), 651 S.E.2d 496. 40.See Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.” (punctuation omitted)). ...
  • Smarr v. State, No. A12A1171.
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 2012
    ...(1983). 26.See Strickland, 466 U.S. at 687(III), 104 S.Ct. 2052;Henderson, 300 Ga.App. at 482(3), 685 S.E.2d 454. 27.See Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.”); see also Edwards v. ......
  • Carter v. State, No. A14A1741.
    • United States
    • United States Court of Appeals (Georgia)
    • March 17, 2015
    ...objection would have been futile. “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008). Accordingly, the trial court did not err in denying Carter's claim of ineffective assistance.Judgment affirme......
  • Request a trial to view additional results
53 cases
  • Morris v. State, A16A1960
    • United States
    • United States Court of Appeals (Georgia)
    • February 21, 2017
    ...was based not upon facts he personally observed but upon information gleaned from other investigators).42 See, e.g., Ventura v. State, 284 Ga. 215, 218 (4), 663 S.E.2d 149 (2008) ("The failure to pursue a futile objection does not amount to ineffective assistance.").43 Denny v. St......
  • Betancourt v. State, Nos. A13A0289
    • United States
    • United States Court of Appeals (Georgia)
    • October 21, 2013
    ...39.See Daniels, 296 Ga.App. at 799–800(5)(a), 676 S.E.2d 13;King, 287 Ga.App. at 378(2)(b), 651 S.E.2d 496. 40.See Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.” (punctuation omitted)). ...
  • Smarr v. State, No. A12A1171.
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 2012
    ...(1983). 26.See Strickland, 466 U.S. at 687(III), 104 S.Ct. 2052;Henderson, 300 Ga.App. at 482(3), 685 S.E.2d 454. 27.See Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.”); see also Edwards v. ......
  • Carter v. State, No. A14A1741.
    • United States
    • United States Court of Appeals (Georgia)
    • March 17, 2015
    ...objection would have been futile. “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008). Accordingly, the trial court did not err in denying Carter's claim of ineffective assistance.Judgment affirme......
  • Request a trial to view additional results

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