Alberto Eddie Deleon v. State

• Court: Court of Appeals of Georgia
• Decided: February 9, 2018
• Docket: A17A1948
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

February 9, 2018

In the Court of Appeals of Georgia A17A1948. DELEON v. THE STATE.

BARNES, Presiding Judge.

In connection with a series of criminal acts perpetrated upon the victim,

Alberto Eddie Deleon was convicted of armed robbery, kidnapping with bodily

injury, and hijacking a motor vehicle. Deleon thereafter sought, but was denied, a new

trial. In this appeal, Deleon contests the sufficiency of the evidence, the final charge

to the jury, the trial court’s response to alleged juror misconduct, and the rejection of

his ineffectiveness claim. Because Deleon has demonstrated no reversible error, we

affirm.

1. When an appellant challenges the sufficiency of the evidence, “the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443

U. S. 307, 319 (III ) (B) (99 SCt 2781, 61 LEd2d 560) (1979). So viewed, evidence elicited from the State’s witnesses showed the following.

At about 1:00 a.m. on April 5, 2011, the victim was at a truck stop where he was

approached by Deleon who told the victim that he needed gas for his car, which had

stopped at a nearby interstate exit. The victim agreed to drive Deleon to a gas station

so that Deleon could purchase a container of gasoline. While the two men were in

transit in the victim’s pickup truck, Deleon mentioned the possibility of obtaining

road-side assistance through some other means, so the victim stopped near Deleon’s

broken-down car to let Deleon out of the pickup truck where he could wait.

But at that point, Deleon began stabbing the victim in the head with a knife.

Deleon then took the victim’s wallet and got cash, credit cards, and a debit card out

of it. Deleon then demanded that the victim drive him to an ATM and supply him

with additional cash. Bleeding from the multiple stab wounds, the victim got on the

interstate and drove approximately 5 or 6 miles to reach a particular gas station,

where he not only anticipated finding an ATM, but he also planned to jump out of the

pickup truck, run into the station’s convenience store, and ask that someone call 911.

But as the victim was turning into the parking lot of the gas station, Deleon demanded

that the victim proceed to a different ATM. Complying, the victim returned to the

2 interstate and drove several additional miles to reach a drive-thru ATM at a bank. The

victim withdrew hundreds of dollars and handed the cash to Deleon.

Deleon next demanded the victim to help him move his car from the side of the

road to the truck stop (where the two men had met). Complying with Deleon’s

explicit instructions, the victim drove the approximately 13 miles back to Deleon’s

car, then exited his pickup truck, and sat in the driver’s seat of Deleon’s car. Deleon

then moved into the driver’s seat of the victim’s pickup truck, and drove the pickup

truck so as to push his own car, which the victim steered to the truck stop. Once there,

Deleon used the victim’s debit card to put gas in his car. But the car still would not

function, apparently due to a dead battery.

Deleon then demanded the victim to help him push his car across the street to

a parking lot, which was dark. Again complying with Deleon’s explicit instructions,

the victim sat in Deleon’s vehicle and steered it to the designated area, while Deleon

drove the victim’s pickup truck to push the disabled car. When they arrived at the

parking lot, the men got out of the vehicles. Deleon began rummaging through his

own vehicle, telling the victim that he was searching for something with which to

murder him. The victim sprinted back toward the truck stop; along the way, he fell

so hard that he fractured a shoulder bone. The victim struggled back to his feet and

3 continued to run toward the truck stop, but eventually the victim could run no more

and fell down again. Lying on the ground, the victim yelled for help and pleaded that

someone call 911. A man at the truck stop saw and heard the victim, and dialed 911.

Meanwhile, Deleon fled the scene in the victim’s pickup truck.

Challenging the sufficiency of the evidence to support the conviction of

kidnapping with bodily injury,1 Deleon contends that the state failed to prove the

“asportation”2 or “movement” element as required by OCGA § 16-5-40 (b). Pursuant

to that Code provision, “slight movement shall be sufficient,” however:

(1) . . . any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.

(2) Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the

1 See OCGA § 16-5-40 (a) (“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”), (d) (4) (enhancing punishment where “the person kidnapped received bodily injury”). 2 “The element of ‘abducting or stealing away’ . . . [is] known as asportation.” Whatley v. State, 335 Ga. App. 749, 753 (2) (782 SE2d 831) (2016), quoting OCGA § 16-5-40 (a).

4 commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension.

According to Deleon, any movement of the victim that could have been attributed to

him was slight, occurred while in the commission of the other offenses for which he

was convicted (armed robbery and hijacking a motor vehicle), and was merely

incidental thereto.

This contention lacks merit. The State adduced evidence of forced movement

that spanned a number of miles and that was independent of both crimes of armed

robbery and hijacking a motor vehicle. As alleged in the indictment,3 the armed

robbery was complete when Deleon took the victim’s wallet and contents at knife

point – which offense thus occurred before Deleon forced the victim to drive several

miles to an ATM, only to force the victim to proceed to a more distant ATM in a

desolate location. After the victim withdrew cash from that ATM and handed it to

Deleon, Deleon forced the victim back to his broken-down car beside the interstate

exit, then to a gas station, and ultimately to an isolated, dark parking lot. And none

3 The armed robbery count of the indictment alleged that Deleon did “with the intent to commit a theft, take a wallet with its contents, which included United States currency . . . and a financial transaction card, from the person of [the victim], by use of . . . a knife.”

5 of the foregoing movement was either necessary or an inherent part of the crime of

hijacking the victim’s pickup truck.

Viewed in the light most favorable to the prosecution, the evidence showed

movement that was substantial, involving a number of miles; movement that was

independent of the other crimes of which Deleon was convicted; and movement that

concealed or isolated the victim, that lessened the risk of detection, and that served

the purpose of avoiding apprehension. Therefore, the evidence was sufficient for the

jury to find the asportation (or movement) element of kidnapping as required by

OCGA § 16-5-40 (b). See Thomas v. State, 320 Ga. App. 101, 103-104 (1) (739 SE2d

417) (2013) (rejecting argument that movement of victim was merely incidental of

the battery offense, where the movement of the victim occurred after the defendant

grabbed and lifted the victim); see also Andemical v. State, 336 Ga. App. 661, 669

(786 SE2d 238) (2016); Whatley, 335 Ga. App. at 754 (2). Accord Flournoy v. State,

294 Ga. 741, 750-751 (7) (755 SE2d 777) (2014) (rejecting argument that any

movement of the victims was “part and parcel” of other crimes such that asportation

was not proved, where the movement was substantial, involving a number of miles;

the movement, though occurring during the commission of the armed robberies, was

not an inherent or necessary part of other crimes; and the movement itself presented

6 a significant danger to the victims because it isolated the victims and further

prevented them from seeking protection or rescue).

2. Deleon contends that, during the final charge, the trial court failed to fully

explain “asportation” as contemplated by OCGA § 16-5-40 (b). Regarding

kidnapping, the court charged:

A person commits kidnapping when that person abducts or steals away any person without legal authority or warrant and holds such person against such person’s will. To prove abduction or stealing away, the State must prove that the victim was moved. The movement of the victim must be more than a mere change of position and such movement must be more than that which is incidental to or necessary to the completion of another crime.

Deleon points out that the charge failed to expressly state that “slight movement”

shall be sufficient, OCGA § 16-5-40 (b) (1), unless such slight movement occurred

during the commission of another offense and was “merely incidental” thereto;

Deleon further points out that the charge given the jury failed to recite those instances

of movement specified by OCGA § 16-5-40 (b) (2) which shall not be considered

“merely incidental” to another offense. Consequently, Deleon asserts, the jury lacked

adequate guidelines for assessing whether the movement in this case was sufficient

pursuant to OCGA § 16-5-40 (b).

7 As the State concedes, Deleon has shown that the trial court erred by failing to

instruct the jury on relevant parts of the kidnapping statute.4 Deleon has not, however,

shown that the error is reversible.

Because [Deleon’s trial counsel] did not object to [the kidnapping] charge at trial, we review it only for plain error, see OCGA § 17-8-58 (b), meaning that we will reverse the trial court only if the error was obvious, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Inman v. State, 294 Ga. 650, 655 (4) (755 SE2d 752) (2014), citing State v. Kelly, 290

Ga. 29, 33 (718 SE2d 232) (2011).

Viewing the jury instructions as a whole, we find no plain error under the

circumstances here. Though the charge fell short of explaining relevant statutory

4 The kidnapping charge given was authorized under Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), which enunciated four factors for assessing the asportation element of kidnapping. Id. at 702 (1). Later, the Georgia Suggested Pattern Jury Instructions incorporated the Garza standard. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.26.30 (Kidnapping). But “Garza has since been superseded by statute for offenses occurring after July 1, 2009.” Gonzalez v. Hart, 297 Ga. 670, 672, n. 3 (777 SE2d 456) (2015), citing OCGA § 16-5-40 (b) (2). Accordingly, the above-referenced section of the Georgia Suggested Pattern Jury Instructions advises, “There will be further revisions to this charge based upon the new statutory amendment. . . . For cases arising on or after July 1, 2009, judges should review the current version of OCGA § 16-5-40.”

8 language, the kidnapping charge given was not overtly wrong. Moreover, it was

undisputed at trial that Deleon and the victim traveled together to all the places set

out above. Deleon took the stand as the sole defense witness. His version of events

paralleled that of the victim, except in two aspects material here: (i) the victim was

stabbed by Deleon in self-defense; and (ii) the victim’s traveling with Deleon had

been wholly voluntary. Deleon testified that when they initially left the truck stop to

get a container of gasoline at about 1:00 a.m., he nodded asleep in the passenger’s

seat of the victim’s pickup truck. According to Deleon, when he awakened, he

discovered that the victim had stopped the truck alongside the road, that the victim’s

head and hands were on his crotch, and that the victim was unzipping his (Deleon’s)

pants. As Deleon described at trial, “[W]hen I woke up and [saw] him doing that, I

reached in my pocket, grabbed my knife, and I started poking at him, and I started

hitting him with my left hand to get him up off me.” At that point, Deleon testified,

the victim abandoned his sexual advances, pleaded with Deleon not to contact police,

and told Deleon that he would give him money. And to that end, Deleon recounted

at trial, despite bleeding from his multiple stab wounds, the victim voluntarily drove

to both ATMs, withdrew cash, and gave it to Deleon; then the victim voluntarily

drove Deleon back to his stalled car and helped him push it first to the truck stop,

9 then to the parking lot across the street. (Thereafter, Deleon admitted at trial, “I . . .

stole the truck.”)

But “[t]he jury simply did not conclude that [Deleon] actually acted in self-

defense,” Inman, 294 Ga. at 655 (4); nor did the jury conclude that the victim –

undisputedly bleeding from multiple head wounds – had voluntarily accompanied

Deleon.5 See generally id. Hence, in light of the quantum of evidence showing

movement of the victim,6 Deleon has failed to show that the cited omission(s) from

the kidnapping charge affected his “substantial rights, which in the ordinary case

means . . . the error affected the outcome of the trial court proceedings.” (Citation and

punctuation omitted.) Kelly, 290 Ga. at 33 (2); see Huff v. State, 300 Ga. 807, 810-

811 (2) (797 SE2d 688) (2017) (concluding that no plain error resulted from the

failure to charge relevant statutory language, citing that the charge given was not

overtly incorrect, and further citing the quantum of evidence adduced against the

defendant); see generally English v. State, 300 Ga. 471, 473-475 (2) (796 SE2d 258)

(2017).

5 See generally State v. Clements, 289 Ga. 640, 647-648 (2) (c) (715 SE2d 59) (2011) (noting principle that the kidnapping statute is intended to address movement serving to substantially isolate the victim from protection or rescue). 6 See Division 1, supra.

10 3. Deleon contends that the trial court erred in its response to alleged juror

misconduct and that he is thus entitled to a new trial.

After the final jury charge, the court recessed trial proceedings for lunch.

During that break, courtroom bailiffs reported to the trial court that one of the jurors

had been texting or otherwise using a communications device during closing

arguments and during the final charge. When the jurors returned from lunch, the trial

court convened a hearing with that juror. Upon the court’s questioning, the juror

explained that he had been using his cellphone only to take notes and that he had not

been communicating with anyone. The juror offered to show the court his notes, but

the court declined to inspect the juror’s cellphone. The court asked defense counsel

whether he wished to question the juror, and defense counsel said no.

At defense counsel’s request, however, the court summoned into the courtroom

the remaining jurors, then instructed them all that jurors are allowed to take notes

during trial proceedings; that whether such notes are taken by pen/paper or by an

electronic device is immaterial; and that if/when such notes are taken by a juror, the

notes do not place that juror in any superior position with respect to determining

facts. Defense counsel asked the court to declare a mistrial, but that request was

summarily denied. Deliberations then commenced.

11 On appeal, Deleon complains that the trial court did not examine the contents

of the cellphone. Deleon additionally complains that the trial court did not voir dire

the remaining jurors as to whether an improper communication had occurred. As

Deleon posits, that juror could have been using his cellphone to conduct independent

research, which information that juror might have shared with other jurors.

As our Supreme Court recognized well over a century ago, when a jury is

selected and sworn to try the criminally accused, “[the law] contemplates that no

outside influence shall be brought to bear on the minds of the jury, and that nothing

shall occur outside of the trial which shall disturb their minds in any way.” Shaw v.

State, 83 Ga. 92, 100 (1) (9 SE 768) (1889). And as Deleon points out, where

misconduct of a juror or of the jury is shown, the presumption is that the defendant

has been injured, and the onus is upon the State to remove that presumption. See

Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990); Lloyd v. State, 339 Ga.

App. 1, 7-9 (2) (792 SE2d 445) (2016) (reaffirming proposition that, in the criminal

context, a presumption of prejudice arises upon a showing of juror misconduct). A

jury verdict will not be upset solely because of juror misconduct, however, “unless

such conduct [was] so prejudicial that the verdict must be deemed inherently lacking

12 in due process.” (Citation and punctuation omitted.) Boone v. State, 293 Ga. App.

654, 662 (9) (667 SE2d 880) (2008).

For reasons explained below, we find no error in the trial court’s decision not

to grant a new trial on the ground of juror misconduct.7 As soon as was practicable

– and before the jury began deliberating, the trial court convened a hearing at which

the juror stated that he had been using his device solely to take notes of the trial

proceedings. Although Deleon asserts that the trial court should have questioned or

polled the remaining jurors, we have held that a trial court is not mandated in every

instance of alleged juror misconduct to question each juror individually. Merritt v.

State, 248 Ga. App. 709, 711 (1) (548 SE2d 427) (2001). And under the

circumstances here, the trial court was authorized to find the juror’s explanation

credible, and we must defer to that finding. See Lloyd, 339 Ga. App. at 9 (3)

(deferring to the trial court’s findings of credibility in connection with determining

whether, and to what extent, juror misconduct played a role in deliberations); see also

Hardy v. State, 242 Ga. 702, 704 (3) (251 SE2d 289) (1978); accord Gaines v. State,

7 See Gaines v. State, 274 Ga. App. 575, 575 (618 SE2d 197) (2005) (“[M]otions for new trial because of improper conduct of jurors are addressed to the sound discretion of the trial judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.”) (citation and punctuation omitted).

13 274 Ga. App. 575, 575 (618 SE2d 197) (2005) (“[W]hether juror misconduct

occurred is a question of fact for the trial judge.”) (citation and punctuation omitted).

Notably, at the hearing on Deleon’s motion for new trial, Deleon’s counsel conceded

that the underlying claim of juror misconduct hinged on “pure speculation.”

Where, as here, “the substance of the [juror’s conduct] is established without

contradiction, the facts themselves may establish the lack of prejudice or harm to the

defendant.” (Citation and punctuation omitted.) Holcomb v. State, 268 Ga. 100, 103

(2) (485 SE2d 192) (1997). Accordingly, because the juror’s conduct – as found by

the trial court (of using his cellphone to take notes during the trial8) – was not so

prejudicial that the verdict must be deemed inherently lacking in due process, this

contention supplies no basis to disturb the judgment. See Holcomb, 268 Ga. at 103

(2); McIlwain v. State, 264 Ga. 382, 383-384 (3) (445 SE2d 261) (1994) (concluding

that the trial court did not err by denying request for mistrial on the ground of juror

8 Deleon does not challenge the substance of the trial court’s apparent curative instructions with respect to a juror’s use of an electronic device to take notes. And we need not reach that issue. See, however, Owens v. State, 324 Ga. App. 198, 201 (1) (a) (749 SE2d 783) (2013) (finding “no provision entitling a defendant to demand that jurors be furnished with the means for taking notes in every case,” and reiterating that “absent special or unusual circumstances, the decision whether to allow the jury to take notes lies in the sound discretion of the trial court”). See also Potts v. State, 259 Ga. 96, 104 (21) (376 SE2d 851) (1989) (concluding that the trial court did not abuse its discretion in allowing jurors to take notes).

14 misconduct, where “[u]pon the trial court’s inquiry” into the juror’s conduct at issue,

it was clear that the complained-of conduct – the juror had privately reported to a

bailiff his concern that defense counsel may have been signaling the defendant while

defendant was testifying – was not harmful to the defendant); Meeker v. State, 282

Ga. App. 77, 81 (5) (637 SE2d 806) (2006) (rejecting claim that defendant was

entitled to a new trial based on claim that jurors had begun deliberations before the

close of evidence, where the trial court’s finding of no misconduct was supported by

jurors’ testimony at new trial hearing that they had not done so). See generally

Lawton v. State, 281 Ga. 459, 463 (3) (640 SE2d 14) (2007) (explaining that the trial

court did not err in refusing to declare mistrial on the ground of juror misconduct,

where there was no evidence showing that the deliberating jurors had been exposed

to improper information).

4. Deleon contends that his trial counsel rendered ineffective assistance.

Pursuant to Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)

(1984),

[i]n order to succeed on [a] claim of ineffective assistance, [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If [the defendant] fails to

15 meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d

876) (2012).

(a) Deleon asserts that his trial counsel should have questioned the juror at

issue, should have requested to examine that juror’s cellphone, and should have

conducted voir dire upon the remaining jurors to ascertain whether any improper

communication had occurred.9 But at the hearing on his motion for new trial, Deleon

presented no evidence of what any of these measures would have produced.

Consequently, he failed to demonstrate any prejudice as to this ground. See Cruz v.

State, 305 Ga. App. 805, 813 (3) (f) (700 SE2d 631) (2010) (explaining that

defendant must demonstrate actual prejudice when claiming ineffective assistance of

trial counsel based upon alleged juror misconduct); see also Walker v. State, 288 Ga.

174, 179-180 (3) (b) (702 SE2d 415) (2010) (holding that the defendant did not prove

prejudice when he “presented no evidence at the motion for new trial hearing to

9 See Division 3, supra.

16 support his bald assertion that there was a reasonable probability that the outcome of

the proceeding would have been different”).

(b) Deleon complains that his trial counsel did not object to the kidnapping

charge.10 This complaint likewise lacks a showing of prejudice. Having viewed the

final charge as a whole, and having considered the trial evidence, we conclude that

there is no reasonable probability that, but for the cited omission(s), the outcome of

Deleon’s trial would have been different. See generally Propst v. State, 299 Ga. 557,

566 (3) (b) (788 SE2d 484) (2016) (concluding that because no reasonable probability

existed that the outcome of defendant’s trial would have been different had trial

counsel requested an additional jury instruction, the ineffectiveness claim lacked a

showing of prejudice).

Judgment affirmed. McMillian and Mercier, JJ., concur.

10 See Division 2, supra.