Vergara v. The State
| Decision Date | 17 May 2010 |
| Docket Number | No. S10A0472.,S10A0472. |
| Citation | 287 Ga. 194,695 S.E.2d 215 |
| Parties | VERGARAv.The STATE. |
| Court | Georgia Supreme Court |
287 Ga. 194
695 S.E.2d 215
VERGARA
v.
The STATE.
No. S10A0472.
Supreme Court of Georgia.
May 17, 2010.
Lee Darragh, District Attorney, Allison W. Toller, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.
HUNSTEIN, Chief Justice.
Ignacio Vergara was convicted of murder in the shooting deaths of Alejandro Santana and Francesco Saucedo and was sentenced to two consecutive life sentences without the possibility of parole. We find no error in the trial court's denial of his motion for new trial 1 and, for the reasons that follow, we affirm in part.
1. Evidence authorized the jury to find that appellant arranged to purchase two kilograms of cocaine, even though appellant had no money to pay for the drugs. On the day of the murders, Saucedo used his girlfriend's cellular telephone to call appellant six times. Saucedo, together with Santana who was delivering the cocaine, then rendezvoused with appellant and co-indictee, Brigido Soto. The four men traveled in two separate cars to a remote location in south Hall County that appellant had previously selected. During the trip, appellant told Soto of his plan to kill the victims in order to take the cocaine. Appellant provided Soto with a gun, which appellant loaded after wiping the bullets to avoid leaving fingerprints; gave Soto a large dose of cocaine, which appellant insisted Soto consume in the car; and ordered Soto to kill the victims once he received appellant's signal. Upon reaching their location, appellant and Soto joined the victims in their car. When the victims learned that appellant did not have the money for the drugs, appellant borrowed the cell phone Saucedo was using and stepped outside the car, pretending to call and make arrangements for the money. When Soto followed, appellant gave him the signal and Soto shot both victims until the gun jammed. Soto unjammed the weapon and continued firing until he ran out of bullets. Soto then obeyed appellant's order to beat Santana, who was still moving; Soto hit Santana in the head with the butt of the gun, repeatedly fracturing the skull with such force that the skull was driven into the victim's brain. Both victims died at the scene from their injuries. Appellant and Soto searched the vehicle and removed two wrapped bricks of cocaine from the floorboard before driving away. Believing it would prevent tracing of the calls Saucedo had earlier made to him, appellant also took with him the cell phone Saucedo had allowed him to use. Appellant turned it off and threw it out of the car into the roadway. Appellant later dropped off Soto but kept the gun and the two bricks of cocaine.
Police officers investigating the murders obtained the records of the cell phone Saucedo had used, which, in turn, led them to appellant because of the six calls Saucedo had made to him. After initially denying any involvement, appellant later made statements in which he admitted being present at the murders but claimed that Soto had directed him to arrange the drug deal and that Soto unilaterally chose to fire on the victims, beat Santana and take the cell phone, which Soto then ordered appellant to throw out the window. Soto, who pled guilty in exchange for two consecutive life sentences without possibility of parole, testified at trial against appellant.
(a) Construed to support the verdicts, the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt as a party to the malice murders of Santana and Saucedo and the aggravated battery of Santana. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 280 Ga. 683, 631 S.E.2d 671 (2006) (evidence sufficient to find aggravating circumstances under OCGA § 17-10-30(b)). See also Metz v. State, 284 Ga. 614(1), 669 S.E.2d 121 (2008) (party to crime may be charged and convicted of its commission under OCGA § 16-2-20(a)).
(b) Appellant was convicted of and sentenced for both the malice murders of the two victims and the aggravated assaults of those victims. Although there is no merger of these crimes as a matter of law, our review of the record establishes that the aggravated assault convictions merged into the malice murder convictions as a matter of fact. See Malcolm v. State, 263 Ga. 369, 372-374(5), 434 S.E.2d 479 (1993). Therefore, the separate judgments of conviction and sentences for the aggravated assaults must be vacated and the case remanded to the trial court for resentencing. See Mikell v. State, 286 Ga. 722(3), 690 S.E.2d 858 (2010). This holding thus moots appellant's contention arising out of alleged errors in the trial court's charge to the jury about the
(c) We find no merit in appellant's contention that his conviction for armed robbery should be reversed because the victim's cellular telephone was not taken by use of an offensive weapon.2 Although the evidence...
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