305 Ga. 644 FINAL COPY
S19A0323. CASTILLO-VELASQUEZ v. THE STATE.
WARREN, Justice.
Appellant Saul Castillo-Velasquez appeals his convictions for
malice murder and possession of a firearm during the commission of
a crime stemming from the shooting death of Silverio Acosta.1 On
appeal, Castillo-Velasquez contends that the trial court erred by
admitting other-act evidence under OCGA § 24-4-404 (b) (“Rule 404
1 The crimes occurred on June 16, 2013. On July 8, 2013, a Hall County grand jury indicted Castillo-Velasquez for malice murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. On August 24, 2015, Castillo- Velasquez pled guilty to malice murder and the firearm offense, but on July 20, 2016, the trial court granted Castillo-Velasquez’s motion to withdraw his guilty plea. Castillo-Velasquez’s trial began on August 7, 2017, and on August 10, the jury found him guilty on all counts. On August 11, 2017, Castillo- Velasquez was sentenced to life without parole for malice murder and five consecutive years for possession of a firearm. The felony-murder verdict was vacated by operation of law, and the aggravated-assault verdict was merged. On August 16, 2017, Castillo-Velasquez filed a motion for new trial, which was amended by his new counsel in July 2018. On August 9, 2018, the trial court denied the motion for new trial, as amended. Castillo-Velasquez filed a timely notice of appeal, and the case was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs. (b)”) and by admitting Acosta’s bloody clothes into evidence. He also
raises one claim of ineffective assistance of counsel. We conclude
that his claims have no merit and affirm.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence showed that, on June 16, 2013—Father’s Day—Castillo-
Velasquez encountered Silverio Acosta (“Acosta”) at a recreational
soccer league’s championship game, which attracted hundreds of
attendees. Claudia Acosta (“Claudia”), Acosta’s daughter, testified
that, after the game was over, she was walking with Acosta when
Castillo-Velasquez came running toward them, said “hola, amigo,”
and began shooting, continuing even after Acosta fell to the ground.
She testified that Castillo-Velasquez was about five feet from Acosta
when he shot him. Jose Martinez-Orellana, who also witnessed the
shooting, testified that Castillo-Velasquez came out from behind a
barrel, approached Acosta and said, “do you remember me?” and
then started shooting. Acosta, who was unarmed, was shot four
times and died from a gunshot wound to the head. After the
shooting, Castillo-Velasquez ran away until he was tackled by two Hall County Marshals working security for the soccer game. One of
them testified that Castillo-Velasquez was smiling after the
shooting and said, “I shot him, I shot him, he killed my father.”
Claudia testified that there had been rumors about tensions
between the Acosta and Castillo-Velasquez families and that
Acosta’s father had a large machete scar across his cheek that he
had gotten from a fight years earlier.
Castillo-Velasquez testified in his own defense at trial. He
testified that, when he was between seven and nine years old in El
Salvador, Acosta and Acosta’s father killed Castillo-Velasquez’s
father with machetes as Castillo-Velasquez watched. Sometime in
late 2012, Castillo-Velasquez moved to Gainesville, Georgia, where
Acosta was also living. According to Castillo-Velasquez, he had two
encounters with Acosta between arriving in Gainesville and the time
of the shooting. One was in a store, where, according to Castillo-
Velasquez, Acosta grabbed a gun that was in his front pants
waistline after seeing Castillo-Velasquez. The other was in a
restaurant, where Castillo-Velasquez said Acosta looked at him in a “bad way” and then came over with a gun in his hand and threatened
to kill Castillo-Velasquez as he had killed Castillo-Velasquez’s
father.
Castillo-Velasquez also testified that when he saw Acosta at
the soccer game on the day of the shooting, they both stopped
walking and Acosta began laughing. According to this account,
Acosta said he was laughing because he had killed Castillo-
Velasquez’s father; Acosta pulled a gun, telling Castillo-Velasquez
to defend himself because Acosta was going to kill him; and Castillo-
Velasquez then pulled his gun and shot Acosta. Castillo-Velasquez
also testified that he has schizophrenia and paranoia and that he
hears constant voices in his head and sees black, demon-shaped
figures. He testified that those problems began in 2009, and that he
took various medications from 2009 until about three months before
the shooting, when he stopped taking them.
At trial, the State introduced evidence that Castillo-Velasquez
had previously been arrested for shooting at three men in New York.
Specifically, the police officer who responded to that incident testified that in November 2004, Castillo-Velasquez approached an
apartment building in New York and shot at three men until his
handgun ran out of bullets. After being arrested and advised of his
rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16
LE2d 694) (1966), Castillo-Velasquez signed a written statement
saying that the three men had beaten him with a baseball bat four
years earlier and that, in the summer before the shooting, the men
told him that, if it were not for his daughter, they would have killed
him. Castillo-Velasquez stated that, on the day of the shooting, he
had been drinking and started thinking about the men who
previously had attacked him with a bat and that he then decided to
find and shoot at the three men. This evidence was admitted under
Rule 404 (b) for the purpose of showing Castillo-Velasquez’s intent
in shooting Acosta.
The trial court charged on both self-defense and delusional
compulsion, and Castillo-Velasquez argued to the jury that, in
shooting Acosta, his mental delusion overpowered his will such that he had no criminal intent and that the delusion led him to believe
that he was acting in self-defense.
Castillo-Velasquez does not contest the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Castillo-
Velasquez guilty beyond a reasonable doubt of the crimes for which
he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99
SCt 2781, 61 LE2d 560) (1979).
2. Castillo-Velasquez contends that the trial court abused its
discretion in admitting evidence of his New York crime.
Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts
shall not be admissible to prove the character of a person in order to
show action in conformity therewith,” but such evidence is
admissible for other purposes, including to prove intent. The party offering evidence under OCGA § 24-4-404 (b) must show three things: (1) the evidence is relevant to an issue in the case other than the defendant’s character; (2) the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.
Kirby v. State, 304 Ga. 472, 479 (819 SE2d 468) (2018).2
Looking to the first element of a Rule 404 (b) evaluation, the
evidence of the New York crime was relevant here to prove intent.
“Relevant evidence” is defined broadly as evidence “having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” OCGA § 24-4-401. We have held
that a defendant puts intent at issue when he pleads not guilty and
does not affirmatively take steps to remove intent from being at
issue. See Kirby, 304 Ga. at 480; Olds v. State, 299 Ga. 65, 72-75
(786 SE2d 633) (2016). Here, Castillo-Velasquez not only put his
intent at issue by pleading not guilty, he affirmatively put it at issue
2 Castillo-Velasquez does not dispute that the evidence was sufficient to
show that he committed the New York act, so we focus on the first two prongs of the test. with his defense that he acted from delusions that overpowered his
will and negated his criminal intent. Indeed, he specifically argued
that the jury should find him not guilty by reason of insanity because
he was acting under a delusional compulsion such that his “will to
do the right thing [was] overpower[ed] . . . so that there’s really no
criminal intent at the time.” Similarly, Castillo-Velasquez argued
that
when someone doesn’t have the criminal intent because his will is . . . overpowered by the voices and the visions and what he sees about that man with a gun over and over and over again to commit this particular act . . . that person cannot be held . . . criminally responsible.
The State’s theory, on the other hand, was that Castillo-Velasquez
acted not from delusions, but with the intent to commit the crimes
in question to “right” the perceived wrongs committed against his
family by Acosta and Acosta’s father. We have explained that
“[w]here the intent required for the charged offenses and other acts
is the same, and intent is at issue, the first prong of the Rule 404 (b)
test is satisfied.” Booth v. State, 301 Ga. 678, 683 (804 SE2d 104) (2017). This is true “regardless of whether the charged offense is
one requiring general or specific intent.” Id.
Among other crimes, Castillo-Velasquez was charged here with
aggravated assault with a deadly weapon, a general-intent crime,
and felony murder based on that same crime. Booth, 301 Ga. at 684.
The other-act crime in New York involved an assault with a deadly
weapon—the same type of general-intent crime as the aggravated
assault charged here. Accordingly, the first prong of the Rule 404
(b) test was satisfied. Id. at 685-686. See also, e.g., United States v.
Diekhoff, 535 F3d 611, 618 (7th Cir. 2008) (holding that in a
prosecution for the kidnapping of a female acquaintance in which
the defendant raised the defense of insanity, the trial court did not
abuse its discretion in admitting other-act evidence that the
defendant had kidnapped a girlfriend on a previous occasion,
concluding that the other act “tended to show” that the defendant
“was aware of the wrongfulness of his behavior” and was “capable of
planning a complicated criminal act”). The second part of the Rule 404 (b) analysis, which requires us
to weigh the probative value of evidence determined to be relevant
against its danger of unfair prejudice, “is governed by OCGA § 24-4-
403.” Kirby, 304 Ga. at 480. That Code section provides:
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The OCGA § 24-4-403 “Rule 403” analysis “must be done on a case-
by-case basis and requires a ‘common sense assessment of all the
circumstances surrounding . . . the extrinsic act and the charged
offense.’” Kirby, 304 Ga. at 481 (citation omitted). Moreover,
[i]n considering the probative value of evidence offered to prove intent, these circumstances include the prosecutorial need for the extrinsic evidence, the overall similarity between the extrinsic act and the charged offense, and the temporal remoteness of the other act.
Id. Castillo-Velasquez claims that the State’s need for the other-act
evidence was minimal, that there were few similarities between the
charged crimes and the New York crime, and that a substantial
amount of time elapsed between the 2004 crime and Acosta’s murder in 2013. In particular, Castillo-Velasquez contends that Brown v.
State, 303 Ga. 158, 162-163 (810 SE2d 145) (2018), requires a
reversal in this case. Brown, however, is distinguishable. There,
the defendant claimed that he shot the victim in self-defense, and
we explained that the State’s need for the other-act evidence was
“extremely low at best,” because, in asserting self-defense, the
defendant did “not deny the intent to inflict injury, but claimed
authority for the act under the legal excuse of reasonable fear of
immediate serious harm to oneself or another.” Id. at 162 (citation
and punctuation omitted). We concluded that the slight probative
value of the other-act evidence was substantially outweighed by its
danger of unfair prejudice. Id. at 163.
Here, by contrast, Castillo-Velasquez squarely placed his
intent at issue by claiming at trial that his delusions completely
negated his criminal intent. To rebut that claim, the State needed
evidence that Castillo-Velasquez acted with the intent to commit the
crimes. See Kirby, 304 Ga. at 483 (explaining that “high
prosecutorial need” for other-act evidence “greatly increases its probative value”); Olds, 299 Ga. at 76 (“The more strongly an issue
is contested, the greater the justification for admitting other act
evidence bearing on the point.” (citation and punctuation omitted)).
As a result, the State had a significant need for the other-act
evidence. Moreover, the charged crimes and the past crime bear
significant similarities: in both cases, Castillo-Velasquez used a
handgun to assault people that he perceived had committed an
offense against him or a family member many years before. As for
temporal proximity, although almost nine years passed between the
2004 crime and Acosta’s murder in 2013, “the prior acts were not so
remote as to be lacking in evidentiary value.” Kirby, 304 Ga. at 484
(citation and punctuation omitted). That is especially true because
the time between crimes must be viewed in light of relevant
circumstances: in 2006, Castillo-Velasquez was sentenced to eight
years in prison in New York, was released in 2011, and was then
deported to El Salvador, where he lived before moving to Gainesville
in late 2012. We have explained that to have evidentiary value, “the
prior crime need not be very recent, especially where a substantial portion of the gap in time occurred while the defendant was
incarcerated.” Id. (citation and punctuation omitted).
In sum, “[b]ecause the major function of OCGA § 24-4-403 is
to exclude matter of scant or cumulative probative force, dragged in
by the heels for the sake of its prejudicial effect,” a trial court’s
decision “to exclude evidence under Rule 403 is an extraordinary
remedy which should be used only sparingly.” Kirby, 304 Ga. at 480
(citation and punctuation omitted). Because Castillo-Velasquez
strongly contested the issue of intent, because the State needed
evidence of the New York crime to counter that defense, and because
the trial court mitigated the prejudicial impact of the other-act
evidence by giving the jury specific instructions about the limited
purpose of the evidence, see McWilliams v. State, 304 Ga. 502, 511
(820 SE2d 33) (2018), we conclude that the trial court did not abuse
its discretion in concluding that the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice
to Castillo-Velasquez. 3. Castillo-Velasquez contends that trial counsel provided
constitutionally ineffective assistance by failing to present available
evidence corroborating Castillo-Velasquez’s testimony about his
mental health. We conclude that this claim is without merit.
To succeed on a claim of ineffective assistance of counsel,
Castillo-Velasquez must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
him. Strickland v. Washington, 466 U. S. 668, 687-695 (104 SCt
2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689
SE2d 280) (2010). To satisfy the deficiency prong, a defendant must
demonstrate that his attorney “performed at trial in an objectively
unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344
(745 SE2d 637) (2013); see also Strickland, 466 U. S. at 687-688.
This requires a defendant to overcome the “strong presumption”
that trial counsel’s performance was adequate. Marshall v. State,
297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation
omitted). To carry the burden of overcoming this presumption, a defendant “must show that no reasonable lawyer would have done
what his lawyer did, or would have failed to do what his lawyer did
not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). “In
particular, ‘decisions regarding trial tactics and strategy may form
the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such
a course.’” Id. (citation omitted). To satisfy the prejudice prong, a
defendant must establish a reasonable probability that, in the
absence of counsel’s deficient performance, the result of the trial
would have been different. Strickland, 466 U. S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Castillo-Velasquez contends that trial counsel had obtained his
previous medical records from the New York Department of
Corrections and that trial counsel performed deficiently in failing to introduce the parts of those records that contained Castillo-
Velasquez’s statements about his hallucinations and paranoia. At
the motion for new trial hearing, trial counsel initially testified that
he did not recall why he did not attempt to introduce those parts of
the medical records, but then said that “it seems like” he did not
attempt to do so because he thought it might permit the State to
introduce expert testimony regarding Castillo-Velasquez’s mental
health or to introduce other parts of the “voluminous” medical
records, including records from places other than the New York
Department of Corrections, that counsel said were unfavorable to
Castillo-Velasquez—including parts that counsel said showed that
Castillo-Velasquez’s drug and alcohol overdoses had contributed to
his mental-health issues. In this regard, at the motion for new trial
hearing, the State introduced a report by a psychiatrist it had hired
to evaluate Castillo-Velasquez’s criminal responsibility. To conduct
the evaluation, the State provided the psychiatrist with, among
other things, medical records from prisons and hospitals in New
York, other than the New York Department of Corrections. The psychiatrist concluded that “[t]he evidence from the records indicate
that Mr. Castillo[-Velasquez] has had a history of some
hallucinations related to his alcohol use.” Counsel testified that he
did not want evidence to be admitted that Castillo-Velasquez’s
mental health issues were caused by his own actions, as opposed to
a “physical ailment or injury,” noting that there was no challenge to
Castillo-Velasquez’s testimony that “he had been hit in the head at
an early age and had a head injury.”3
Trial counsel correctly recognized that the State could have
sought to admit the portions of the New York Department of
Corrections medical records, as well as medical records from other
facilities, that were unfavorable to Castillo-Velasquez. First, under
the so-called “rule of completeness,” see OCGA § 24-1-106,4 the State
3 Castillo-Velasquez testified at trial that when he was young, “a piece of
wood fell on [his] head and . . . broke [his] skull.” He added that he “ended up talking, saying things that [his] family could not understand.”
4 OCGA § 24-1-106 provides that “[w]hen a writing or recorded statement
or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement.” See also OCGA § 24-8-822 (providing that could have sought to introduce other parts of the Department of
Corrections medical records. That rule applies to “a writing” and
thus applies to the medical records in this case. See 1 Christopher
B. Mueller et al., Federal Evidence § 1:44 (4th ed. updated July
2018) (explaining that the “rule of completeness applies to letters
and records, recordings, and documents of all sorts,” and “is useful
with medical records in civil cases,” a principle that would apply to
criminal cases as well (citing cases)); Phoenix Assoc. III v. Stone, 60
F3d 95, 102-103 (2d Cir. 1995) (applying Federal Rule of Evidence
106 to financial statements).5 The rule “prevents parties from
misleading the jury by presenting portions of statements out of
context,” and permits the introduction of “additional material that
is relevant and is necessary to qualify, explain, or place into context
“[w]hen an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence”).
5 OCGA § 24-1-106 was adopted as part of our new Evidence Code and
mirrors Federal Rule of Evidence 106. The “General Assembly intended for Georgia courts to look to that federal rule and how federal appellate courts have interpreted that rule for guidance.” Jackson v. State, 301 Ga. 866, 869 n. 3 (804 SE2d 367) (2017) (citation and punctuation omitted). the portion already introduced.” Jackson v. State, 301 Ga. 866, 869
(804 SE2d 367) (2017) (citation and punctuation omitted). In light
of that rule, the trial court would not have abused its discretion in
permitting the State to introduce the portions of Castillo-
Velasquez’s medical records about which counsel was concerned.
Allaben v. State, 299 Ga. 253, 256 (787 SE2d 711) (2016) (noting that
we review a ruling under the rule of completeness for abuse of
discretion). Moreover, as for Castillo-Velasquez’s medical records
from places other than the New York Department of Corrections, the
State could have sought to introduce those records under the
principles governing relevant evidence contained in OCGA § 24-4-
401 through OCGA § 24-4-403 if Castillo-Velasquez had introduced
part of his medical records from the Department of Corrections.
And, again, the trial court would not have abused its discretion in
permitting the State to introduce Castillo-Velasquez’s medical
records about which counsel was concerned. See Young v. State, 305
Ga. 92, 95 (823 SE2d 774) (2019) (noting that as “a general rule, the
admission of evidence lies within the sound discretion of the trial court”). Accordingly, because we cannot say that counsel’s strategy
was “‘so patently unreasonable that no competent attorney would
have followed such a course,’” Davis, 299 Ga. at 183 (citation
omitted), Castillo-Velasquez’s claim of ineffective assistance of
counsel fails.
4. Castillo-Velasquez contends that the trial court erred in
admitting Acosta’s clothes into evidence. In particular, Castillo-
Velasquez contends that because the clothes were bloody, the trial
court should have excluded the evidence under Rule 403 on the
ground that its probative value was substantially outweighed by the
danger of unfair prejudice. However, Castillo-Velasquez did not
object to the evidence on this ground at trial. Instead, he objected
only that it was not relevant. He now concedes that it was relevant,
but contends that it should have been excluded under Rule 403.
Because this objection was not raised at trial, we consider only
whether the trial court committed plain error in admitting the
evidence. See Chrysler Group v. Walden, 303 Ga. 358, 368-369 (812
SE2d 244) (2018) (explaining that an objection to evidence at trial on the ground that it was not relevant is not the same as an objection
that the evidence should have been excluded for unfair prejudice
under Rule 403, and that the latter issue therefore could be analyzed
only for plain error).
To establish plain error, Castillo-Velasquez “must point to a
legal error that was not affirmatively waived, was clear and obvious
beyond reasonable dispute, affected his substantial rights, and
seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” Hightower v. State, 304 Ga. 755, 759 (822
SE2d 273) (2018). Moreover, for Castillo-Velasquez to establish that
the error affected his substantial rights, he “must demonstrate that
it caused him harm, meaning ‘that the outcome of the trial court
proceedings was likely affected.’” Id. (citation omitted).
Pretermitting whether Castillo-Velasquez has established that the
admission of the clothes was erroneous, he has not shown harm.
Because of the strength of the evidence against Castillo-Velasquez,
and given that other evidence admitted at trial (and in particular
photographs of the crime scene) showed the bloody nature of Castillo-Velasquez’s crimes, we conclude that he has not shown that
any error probably affected the outcome of the trial court
proceedings.
Judgment affirmed. All the Justices concur. Decided April 15, 2019.
Murder. Hall Superior Court. Before Judge Gosselin.
Y’Chili Law, Kalki Yalamanchili, for appellant.
Lee Darragh, District Attorney, Wanda L. Vance, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Elizabeth H. Brock, Assistant
Attorney General, for appellee.