Zamora v. State

• Decision Date: 10 September 2012
• Docket Number: No. S12A0847.,S12A0847.
• Citation: 12 FCDR 2766,731 S.E.2d 658,291 Ga. 512
• Parties: ZAMORA v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 512

731 S.E.2d 658

12 FCDR 2766

ZAMORA

v.The STATE.

No. S12A0847.

Supreme Court of Georgia.

Sept. 10, 2012.

F. Mayes Davison, Davison & Davison, Royston, for appellant.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Department of Law, Adam Christopher Schroeder, Asst. Dist. Atty., Robert W. Lavender, Dist. Atty., for appellee.

NAHMIAS, Justice.

Appellant Horatio Zamora was convicted of malice murder and first-degree cruelty to children in connection with the death of 19–month–old Jonathan Castillo.¹ Appellant contends that the evidence at his trial was insufficient to prove him guilty, that the trial court erred in admitting certain evidence, that his trial counsel provided ineffective assistance, and that his right to be present during trial was violated by the dismissal of a juror as a result of bench conferences in which Appellant did not participate. We affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence presented at Appellant's trial showed the following. Appellant and his girlfriend, Marisela Mendez, lived together in a trailer in Franklin County, along with her father, Francisco Mendez, and her son, Jonathan. On March 31, 2009, Mr. Mendez went to work, and Ms. Mendez and Appellant spent the morning and early afternoon playing with the toddler, changing his diaper, and cooking. During that time, Jonathan did not act strange or hurt. Around 3 or 4 p.m., Ms. Mendez went to work, leaving Appellant home alone with the child. Mr. Mendez and Ms. Mendez returned home separately late that night. Ms. Mendez saw Jonathan asleep in his bed, and she went to sleep.

The following morning, Ms. Mendez woke to find Appellant awake earlier than usual; he was trying to wake up Jonathan, which was also unusual for him. When Ms. Mendez saw that her son was not responding, she rushed over to him, realized he was not breathing, and began to cry, waking up Mr. Mendez. As Ms. Mendez called 911, Appellant changed his clothes and fled the trailer. He was gone before the paramedics arrived and determined that Jonathan was dead. Appellant drove to a friend's house and, without mentioning the events of that morning, asked for a ride to a bus station in Atlanta. Appellant, who had no luggage, told his friend that he was going to Mexico for three to four weeks to look for work. He was arrested at the bus station later that morning.

Dr. Lora Darrisaw, Deputy Chief Medical Examiner for the Georgia Bureau of Investigation,performed an autopsy on Jonathan. At trial, she testified that she observed small bruises on the child's face, back, right arm, left hand, and left leg. After shaving his head, she was also able to see a small bruise and an abrasion on his scalp. An x-ray showed that Jonathan's forearms had been broken before he was killed. Dr. Darrisaw testified that the fractures in his left forearm were three to four weeks old when he died, and the fractures in his right forearm were one to two weeks old. Dr. Darrisaw's internal examination revealed severe injuries to the child's brain that resulted in substantial internal bleeding and swelling. She concluded that Jonathan's death was a homicide caused by blunt force head trauma, which could not have occurred during the normal activities of a toddler. According to Dr. Darrisaw, the injuries may have resulted in his death within an hour or two, or it could have taken longer. She added that, between suffering the injuries and dying, the child would have continued breathing and could have appeared to be sleeping normally.

2. Appellant argues that the evidence was insufficient to support the jury's verdict because the State presented only circumstantial evidence and did not exclude all reasonable hypotheses except that of his guilt, as required by OCGA § 24–4–6.² In particular, Appellant contends that the evidence left open the possibility that some other person caused the victim's fatal injuries.

“[Q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence[,] and where the jury is authorized to find that evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.”

Crouch v. State, 279 Ga. 879, 880, 622 S.E.2d 818 (2005) (citation omitted). Construed in the light most favorable to the verdict, the evidence established that the child victim appeared healthy before being left alone with Appellant for several hours during the afternoon and evening before the morning on which the victim was found dead as a result of head trauma, which was not caused by the toddler's normal activities. That morning, Appellant was observed awake early, trying to awaken the victim, which was unusual. And in contrast to the reaction of Ms. Mendez, who sought emergency medical treatment for the child, Appellant quickly left the home and attempted to flee to Mexico. Finally, there was no evidence implicating either Ms. Mendez or her father in the crimes. Thus, the evidence, while not overwhelming, was sufficient to authorize a rational jury to find that the State had excluded every reasonable hypothesis other than Appellant's guilt and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. See OCGA § 24–4–6; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)).

3. Appellant challenges the admission into evidence of the victim's pre-incision and post-incision autopsy photographs, arguing that the photos had no probative value and served solely to inflame the passions of the jurors. Appellant concedes, however, that he failed to object to the admission of this evidence at trial. He has therefore waived his right to raise this issue on appeal. See Brooks v. State, 281 Ga. 514, 516, 640 S.E.2d 280 (2007).

Even if the claim were not waived, it would fail. The pre-incision autopsy photographs of the victim were relevant and admissible because they depicted the location and nature of his external injuries. See Johnson v. State, 289 Ga. 106, 107–108, 709 S.E.2d 768 (2011). Similarly, the post-incision photos were admissible because, according to the medical examiner, they depicted bleeding and swelling in the victim's brain that were not apparent from an external examination. See Smith v. State, 283 Ga. 237, 241, 657 S.E.2d 523 (2008) (“ ‘Post-incision autopsy photographs are admissible if necessary to show some material fact that becomes apparent only due to the autopsy.’ ” (citation omitted)). Accordingly, the trial court did not abuse its discretion by admitting the photographs. See Thomas v. State, 281 Ga. 550, 552, 640 S.E.2d 255 (2007) (finding autopsy photos admissible to assist the jury in understanding the internal injuries suffered by a child victim).

4. Appellant contends that the trial court erred in allowing the jury to consider a bus ticket to Mexico that the police seized from him when he was arrested at the bus station in Atlanta, because the State never formally tendered the ticket for admission into evidence. Again, however, Appellant did not raise this issue during the trial and therefore is barred from raising it on appeal. See Brooks, 281 Ga. at 516, 640 S.E.2d 280.

Moreover, even assuming that the trial court erred in allowing the bus ticket into the record, the error was harmless. The jury learned from unchallenged evidence that Appellant fled the crime scene before the paramedics arrived, went to a friend's house, told the friend he planned to travel to Mexico for several weeks, and asked the friend to give him a ride to the bus station in Atlanta. The friend did so, and Appellant was arrested at the bus station. Given this clear evidence of attempted flight to Mexico, it is highly probable that any error involving the bus ticket did not contribute to the jury's verdict. See Lindsey v. State, 282 Ga. 447, 450, 651 S.E.2d 66 (2007) (“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.”).

5. Appellant argues that the State improperly withheld evidence. Specifically, he contends that the prosecutor should have provided him with a recording and transcript of Ms. Mendez's 911 call, as well as additional photographs of the victim by the medical examiner, even though none of this material was offered into evidence at trial.³ Georgia's criminal discovery statute requires the prosecution to permit the defense to inspect and copy documents, photographs, recordings, and other materials that are “intended for use ... as evidence in the prosecutor's case-in-chief or rebuttal at the trial.” OCGA § 17–16–4(a)(3)(A). The State did not seek to admit at trial a recording or transcript of Ms. Mendez's 911 call or any undisclosed autopsy photographs, and thus, assuming such materials exist, the State was not statutorily required to provide them to the defense.

Moreover, to the extent that Appellant is arguing that the alleged recording, transcript, and photographs constituted material exculpatory information that the State failed to provide to the defense in violation of constitutional requirements, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Appellant was required to show, among other things,

that the allegedly-suppressed evidence was material to the defense. “ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”

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