Grullon v. State

867 S.E.2d 95, 313 Ga. 40

• Court: Supreme Court of Georgia
• Decided: December 14, 2021
• Docket: S21G0485
• Status: Published

Opinion

313 Ga. 40 FINAL COPY

S21G0485. GRULLON v. THE STATE

LAGRUA, Justice.

In September 2017, a jury found Victor Grullon guilty of

trafficking heroin, and the trial court sentenced him to serve 30

years in prison. Grullon appealed, challenging the sufficiency of the

evidence and arguing that the trial court gave an erroneous jury

charge on deliberate ignorance. The Court of Appeals affirmed

Grullon’s conviction, concluding that the evidence was

constitutionally sufficient under Jackson v. Virginia, 443 U. S. 307

(99 SCt 2781, 61 LE2d 560) (1979), and that Grullon did not show

“reversible error because he affirmatively stated to the trial court

that he had no objection after the jury was charged.” Grullon v.

State, 357 Ga. App. 695, 695 (849 SE2d 291) (2020). We granted

certiorari to decide whether the Court of Appeals correctly held that

Grullon affirmatively waived his claim that the trial court gave an

erroneous jury instruction on deliberate ignorance. Because we answer this question in the negative, we reverse that portion of the

judgment of the Court of Appeals.

1. Pertinent facts and procedural history.

(a) Factual background.

The underlying facts, as summarized by the Court of Appeals,

see Grullon, 357 Ga. App. at 696-697 (1), show that in early 2016,

the federal Drug Enforcement Administration, together with

various local law enforcement agencies, conducted an investigation

into Marcelo Enciso-Rodriguez. Law enforcement officers believed

Enciso-Rodriguez was acting as a middleman in a heroin trafficking

operation that involved a supplier in Mexico, known as “Mariachi,”

and buyers from New York and Philadelphia. The buyers would

drive to the metro Atlanta area and meet Enciso-Rodriguez at a

QuikTrip convenience store, where he would give them a car battery

in which heroin was concealed. As part of their investigation,

officers conducted surveillance on Enciso-Rodriguez through

telephone wiretaps, a video camera mounted on a pole in the

QuikTrip parking lot, and a stake-out across the street from the

2 QuikTrip.

In January 2016, officers observed a transaction between

Enciso-Rodriguez and a man later determined to be Tomas

Hernandez, in which Enciso-Rodriguez gave Hernandez a car

battery. Before and after the meeting with Hernandez, Enciso-

Rodriguez spoke with Mariachi, using coded phrases referring to

Hernandez and to the amount of money involved in the transaction.

On February 5, 2016, Mariachi and Enciso-Rodriguez spoke on

the phone about another transaction. Apparently referring to a new

buyer, Mariachi told Enciso-Rodriguez that “he left today” and

would arrive to meet with Enciso-Rodriguez at some point the

following day, possibly in the morning.

On the morning of February 6, Enciso-Rodriguez had a series

of telephone conversations with a man, later identified as Grullon,

who asked for directions to the QuikTrip. Grullon and Hernandez,

the buyer from the January transaction, arrived at the QuikTrip in

a vehicle with New York plates registered to Grullon. Enciso-

Rodriguez gave Hernandez a car battery, which Hernandez placed

3 in the vehicle, and Hernandez and Grullon drove away. Officers

followed the vehicle and stopped it shortly thereafter for a tag

violation. When officers stopped the vehicle, Hernandez was

driving, and Grullon was seated in the front passenger seat.

Hernandez consented to a search of the vehicle. He told the officers

that he and Grullon had been in Atlanta for two days visiting a

friend and that the battery in the back of the vehicle belonged to

him. When the officers began asking questions about the car battery,

Grullon appeared as though he might “pass out.” The officers cut

apart the battery and found six bricks of a substance inside, which

were later tested and found to be a mixture containing heroin,

weighing 465 grams.

(b) Trial court proceedings.

In January 2017, Grullon was indicted by a Gwinnett County

grand jury, together with Encisco-Rodriguez and Hernandez,1 on

one count of trafficking in morphine, opium, or heroin under OCGA

1 Encisco-Rodriguez and Hernandez were also indicted for one count of

conspiracy to commit trafficking heroin. 4 § 16-13-31 (b).2 Grullon’s case proceeded to trial in September 2017.

During the charge conference, the State requested that the trial

court give the following jury instruction on deliberate ignorance,3

citing Perez-Castillo v. State, 257 Ga. App. 633, 635 (572 SE2d 657)

(2002):

The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter solely within your discretion.

2 Under OCGA § 16-13-31 (b), a “person who sells, manufactures, delivers, brings into this state, or has possession of four grams or more of any [of a list of specified] substance[s], . . . including heroin, . . . or four grams or more of any mixture containing any such substance . . . commits the felony offense of trafficking in illegal drugs[.]” 3 The State had previously informed the trial court during a hearing on

Grullon’s motion for directed verdict that it would be asking for a jury instruction on deliberate ignorance. The State argued that such a charge was appropriate in this case because, even if Grullon was not “fully apprised of what [wa]s in that battery,” he at least knew something was “amiss.” Grullon objected, contending that, for this charge to be proper, the State would have been required to “show that there were signs that [Grullon] should have known” what was in the battery, but the State failed to make this showing or otherwise show “a sufficient factual basis” for this charge. 5 Grullon objected to the State’s requested charge, asserting that this

charge should not be given in circumstances where the evidence

“points to either actual knowledge or no knowledge on the part of

the defendant,” and the State had argued that Grullon had a basis

for actual knowledge in this case. The trial court overruled Grullon’s

objection and gave the State’s requested charge on deliberate

ignorance.

When the trial court completed the final instructions to the

jury, the trial court asked the parties whether there were any

exceptions, and Grullon’s trial counsel replied, “No, sir, Judge.”

Grullon was convicted by the jury of trafficking in 28 or more grams

of a mixture containing heroin under OCGA § 16-13-31 (b) (3) and

sentenced to 30 years in prison.

Grullon subsequently filed a motion for new trial, asserting

that there was insufficient evidence for the jury to find he was in

constructive possession of the drugs and that the trial court gave an

erroneous jury charge on the issue of deliberate ignorance. With

respect to the jury charge, Grullon argued that the trial court erred

6 in giving this instruction because it unconstitutionally reduced the

State’s burden of proof by conflating the “knowledge” and “intent”

elements of the offense – a different argument than the one he raised

when he objected to the instruction at the charge conference. The

trial court denied Grullon’s motion for new trial, and Grullon

appealed his conviction to the Court of Appeals.

(c) Grullon’s appeal to the Court of Appeals.

On appeal, Grullon challenged the sufficiency of the evidence

and asserted that the trial court erred in giving the deliberate

ignorance charge “because the charge equated intent with

knowledge.” Grullon, 357 Ga. App. at 700 (2). The State conceded

on appeal that this charge was erroneous, but argued that the error

was harmless. See id. See also Matos-Bautista v. State, 353 Ga.

App. 773, 778 (1) (839 SE2d 260) (2020) (“[A] charge on deliberate

ignorance that equates intent with knowledge, or which tends to

confuse those concepts, is erroneous.”). Without addressing whether

the trial court committed an obvious error in giving this charge or if

any error was harmful, the Court of Appeals concluded that

7 Grullon did not preserve this claim of error for regular appellate review. Although he objected to the charge at the charge conference (albeit on different grounds), Grullon did not object to the charge at the time it was given. For that reason, his claim that the trial court erred by giving the charge is subject to review only for plain error. And Grullon cannot show plain error, which among other things requires a showing that the error has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation and punctuation omitted). After giving the charge to the jury, the trial court asked if Grullon had any objection to it, and his trial counsel responded “no.” By affirmatively stating that he had no objection to the charge to the jury, Grullon waived any claim that the charge was improper, meaning that he cannot show plain error. See Lee v. State, 347 Ga. App. 508, 512 (2) (b) (820 SE2d 147) (2018).

Grullon, 357 Ga. App. at 700 (2) (citation and punctuation omitted).

The Court of Appeals accordingly affirmed the trial court. See id.

For the reasons that follow, we conclude that the Court of

Appeals erred in identifying affirmative waiver under the facts of

this case, and, thus, we reverse this division of the Court of Appeals’

decision and remand the case for reconsideration of other elements

of plain error review.4

4 Grullon did not seek certiorari review of the Court of Appeals’ holding

8 2. Analysis.

Grullon did not affirmatively waive his claim that the trial

court erred in giving an erroneous jury instruction.

Under OCGA § 17-8-58:

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence. (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.

In accordance with subsection (a), a party who objects to any of

the charges given to the jury is obligated to raise that objection

before the jury retires to deliberate. See OCGA § 17-8-58 (a). See

also Cheddersingh v. State, 290 Ga. 680, 682 (2) (724 SE2d 366)

(2012) (holding that it was the appellant’s “duty to inform the court

that the evidence was sufficient, see Grullon, 357 Ga. App. at 696-700 (1), and that part of the Court of Appeals’ judgment stands. 9 of the specific objection and the grounds for such objection before the

jury retired to deliberate” (citation and punctuation omitted)). Here,

Grullon did not reiterate his objection to the deliberate ignorance

charge after the trial court gave the final instructions to the jury in

accordance with OCGA § 17-8-58 (a); additionally, the ground for his

objection at trial was different than the ground he asserted on

appeal. See Nalls v. State, 304 Ga. 168, 172 (2) (a) (815 SE2d 38)

(2018) (noting that at the charge conference, the appellant’s counsel

stated that she did not want a certain charge to be given, but “she

did not object to the charge at the time that it was given[;] [f]or that

reason, [Appellant’s] claim that the trial court erred by failing to

limit the charge is subject to review only for plain error”). Grullon

therefore failed to preserve this claim for ordinary appellate review.

However, the alleged error is still reviewed for plain error on appeal.

See OCGA § 17-8-58 (b). See also Cheddersingh, 290 Ga. at 683 (2).

“[U]nder OCGA § 17-8-58 (b), appellate review for plain error is

required whenever an appealing party properly asserts an error in

jury instructions.” Kelly, 290 Ga. at 32 (1). In other words, when an

10 error in the jury instruction is enumerated and argued on appeal,

the appellate court is required to conduct a plain error analysis. See

id. at 32-33 (2) (a). See also King v. State, 300 Ga. 180, 182 (1) (794

SE2d 110) (2016) (holding that when the appellant raises trial court

instructional error for the first time on appeal, the purported

“failure to give these charges is reviewed for plain error”).

For purposes of undertaking the plain error analysis, this

Court established the following test for determining whether there

is plain error in jury instructions under OCGA § 17-8-58 (b):

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Kelly, 290 Ga. at 33 (2) (a) (citation and punctuation omitted;

11 emphasis in original).

In this case, the Court of Appeals did not consider any other

elements of the plain error test delineated in Kelly because the court

concluded that the first requirement was not met: Grullon had

“waived any claim that the charge was improper” by “affirmatively

stating that he had no objection to the charge” after it was given to

the jury. Grullon, 357 Ga. App. at 700 (2). On certiorari review,

Grullon contends and the State concedes that the Court of Appeals

erred in making this ruling. We agree.

The parties do not dispute that the trial court’s jury instruction

on deliberate ignorance was clearly erroneous. And, although

Grullon stated no objection to the charge after it was given —

thereby forfeiting ordinary appellate review — this does not

necessarily establish “affirmative waiver” of the error on appeal.

See Cheddersingh, 290 Ga. at 684 (2). To constitute an affirmative

waiver, the appellant’s argument that the trial court “deviat[ed]

from a legal rule must have been intentionally relinquished or

abandoned” by the appellant. Id. (citation and punctuation omitted).

12 Under the plain error analysis articulated in Kelly, an objection is intentionally relinquished or abandoned if it is “affirmatively waived.” Applying the standard articulated in United States v. Olano, 507 U. S. 725 (113 SCt 1770, 123 LE2d 508) (1993), we have contrasted such a waiver — the intentional relinquishment of a known right — with “forfeiture,” which is the mere “failure to make the timely assertion of a right.” An affirmative waiver may occur, for example, when a defendant requests a specific jury instruction but later withdraws such request[;] explicitly requests a jury instruction that he later argues on appeal should not have been given; or objects to a charge that he later argues on appeal should have been given[.] In such circumstances, the defendant has invited the alleged error, and it therefore provides no basis for reversal.

Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019)

(citations and punctuation omitted).

Grullon objected to the deliberate ignorance charge at two

points during trial before the trial court charged the jury. And,

while he did not object again after the final instructions were given,

that “does not show that [Grullon] intentionally relinquished” his

known rights with regard to the deliberate ignorance instruction.

Cheddersingh, 290 Ga. at 684 (2) (holding that “the failure to object

is more appropriately described as a forfeiture of the right”).

13 “Generally, counsel’s silence at a juncture when a request for — or

objection to — a jury instruction might have been made will be

considered merely a forfeiture for which plain error review remains

available.” Vasquez, 306 Ga. at 229 (2) (c). While Grullon’s counsel

did not remain silent, there was also no specific waiver of any

objections to the deliberate ignorance instruction in particular. See,

e.g., Collins v. State, 308 Ga. 515, 519 (2) (842 SE2d 275) (2020)

(reviewing claim for plain error, but not relying on affirmative

waiver, where “[a]t the conclusion of the jury charge, the trial court

asked, ‘Are there any objections to the charge . . . on behalf of the

defense?’ Appellant’s counsel replied, ‘No, your honor.’”); Guajardo

v. State, 290 Ga. 172, 175-176 (3) (718 SE2d 292) (2011) (reviewing

claim for plain error, but not relying on affirmative waiver, where

“after the trial court recharged the jury, the trial court specifically

asked counsel if there were ‘any exceptions to the Court’s answer to

the questions.’ Appellants’ trial counsel answered, ‘No, Your

Honor.’”); Mike v. State, 358 Ga. App. 113, 114 (1) (853 SE2d 887)

(2021) (reviewing claim for plain error, but not relying on

14 affirmative waiver, where, “[f]ollowing the trial court’s instructions

to the jury, defense counsel stated she had no objections to the

charge”).

Moreover, we discern no tactical reason for Grullon’s trial

counsel not to object to the deliberate ignorance charge after it was

given in the final instructions to the jury, particularly because he

had previously objected to the instruction during trial and been

informed by the trial court that the charge would be given. See

Vasquez, 306 Ga. at 230 (2) (c) (“[T]he appellate court can conclude

that the defendant’s right — or objection — to a particular

instruction was intentionally relinquished if the appellate court can

discern a tactical reason on the part of the defense for failing to

request (or object to, as the case may be) a specific jury instruction.”

(Citation and punctuation omitted)).

Additionally, while the Court of Appeals relied on Lee in

concluding that Grullon waived any claim that the deliberate

ignorance charge was improper in this case, Lee is distinguishable.

See Lee, 347 Ga. App. at 512 (2) (b). In Lee, the Court of Appeals

15 concluded that the defendant “waived any claim that the trial court

improperly referenced [a] stipulation in its jury charge” because the

defendant had previously stipulated that he did not challenge the

chain of custody with respect to certain evidence presented by the

State and “affirmatively stated that he had no objection to a

stipulation charge as to the chain of custody.” Id. (punctuation

omitted). Here, Grullon never affirmatively stated that he had no

objection to the specific deliberate ignorance charge he now

challenges, and indeed he raised an objection to that charge earlier

at trial.

Because Grullon’s claim of error was not affirmatively waived

and survives the first step of plain error review, the Court of Appeals

must now consider other parts of the plain error analysis, in

particular whether the error that the State has conceded probably

affected the outcome of the proceedings. See Kelly, 290 Ga. at 33 (2)

(a) (holding that “the error must have affected the appellant’s

substantial rights, which in the ordinary case means he must

demonstrate that it affected the outcome of the trial court

16 proceedings” (Citation and punctuation omitted)). Accordingly, we

reverse the portion of the judgment of the Court of Appeals

concluding that there was affirmative waiver and remand the case

for the court to consider other elements of plain error review. See

id.

Judgment reversed in part and case remanded. All the Justices concur.

Decided December 14, 2021.

Certiorari to the Court of Appeals of Georgia – 357 Ga.

App. 695.

Taylor Lee & Associates, S. Eli Bennett, for appellant.

Patsy Austin-Gatson, District Attorney, Christopher M.

DeNeve, Norris S. Lewis, Jr., Assistant District Attorneys, for

appellee.

Michael W. Tarleton, Clifford L. Kurlander, amici curiae.