310 Ga. 529 FINAL COPY
S20A1208. LOPEZ v. THE STATE.
MCMILLIAN, Justice.
Nicolas Lopez was convicted of malice murder and possession
of a firearm during the commission of a felony in connection with the
shooting death of Robert Moon.1 After his convictions, Lopez waived
his right to the assistance of counsel. Representing himself, Lopez
now appeals, asserting that (1) his trial counsel labored under a
conflict of interest; (2) he otherwise received ineffective assistance of
1 Moon was shot and killed on May 26, 2017. On September 18, 2017, a
Grady County grand jury indicted Lopez for malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), possession of a firearm during the commission of a felony (Count 4), and possession of a firearm by a convicted felon (Count 5). At a trial held on December 4 and 5, 2018, a jury found Lopez guilty of Counts 1 through 4, and the State agreed to nolle pros Count 5. The trial court sentenced Lopez to serve a life sentence in prison without the possibility of parole for malice murder and a consecutive term of five years in prison for possession of a firearm during the commission of a felony. Count 2 was vacated as a matter of law, and Count 3 merged with Count 1. Lopez filed a motion for new trial through counsel on December 19, 2018, and subsequently waived his right to the assistance of counsel for further proceedings. Lopez then filed an amended motion for new trial on November 18, 2018. Following a hearing, the trial court denied the motion for new trial on November 21, 2019. Lopez timely appealed, and the case was docketed to the August 2020 term of this Court and thereafter submitted for a decision on the briefs. counsel; (3) the trial court erred in failing to ensure an accurate
transcription of the trial; (4) the trial judge erred in failing to recuse
himself; and (5) the trial court erred in recharging the jury. For the
reasons that follow, we find no error and affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial shows that on the afternoon of May 26,
2017, Deputy Michael Starling of the Grady County Sheriff’s Office
responded to a report of gunshots fired in the area of Lopez’s
property off Bond Road in an unincorporated area of Grady County.
The deputy was familiar with the neighborhood because he had
previously responded to arguments between Lopez and Moon. When
Deputy Starling arrived, he saw Moon in his backyard working on a
truck with his brother. He tried to make contact, but Moon shook his
head, indicating he did not wish to speak, and pointed toward
Lopez’s home nearby. Deputy Starling then proceeded to Lopez’s
home. When Lopez came outside and asked why the deputy was on
his property, Deputy Starling could smell alcohol coming from him.
Deputy Starling explained to Lopez that someone had called 911 to
2 report gunshots. Lopez became frustrated and started yelling at
Moon. Deputy Starling intervened and told Lopez that he could not
tell Lopez who had called 911 and that Lopez needed to calm down.
Lopez said there would not be any problem and that he was going to
go inside and lie down.
Curtis Washington, who lived next door to Moon and across the
street from Lopez, testified that his children were playing outside
that day when they saw Lopez shooting a gun. They ran inside the
house, and when Washington looked outside, he saw Lopez holding
a rifle. He called the landlord to complain, and the landlord told him
to call the police. A short time later, Lopez came to Washington’s
home to complain about the police being called. Lopez’s attention
shifted to Moon, who was still outside with his brother. Lopez stared
at Moon and said, “If that motherf***er cross me, I’m going to kill
him.” Later that evening, Washington saw Lopez walk toward where
Moon was standing by Moon’s truck, arguing loudly as he advanced.
Washington then heard three gunshots. As he called 911, he saw
Lopez walk back toward his house, get in his Jeep, and speed off.
3 Washington denied ever seeing Moon with a knife or other weapon
that night.
Jessie Barker, Moon’s half-brother, testified that he went to
Moon’s home that day to help him repair his truck. After a few hours,
they stopped working to eat a sandwich on the hood of Moon’s truck.
At that point, Lopez walked over and asked Moon to come out to the
road, cursing and yelling about Moon calling the police on him. Moon
refused to walk over to Lopez and asked him whether he was
carrying a gun. Lopez did not respond, but he walked straight
toward Moon and shot him point-blank with a handgun. According
to Barker, Moon had no weapons on him that day and made no
movement toward Lopez.
Responding officers located two .45-caliber shell casings at the
scene and additional .223-caliber shell casings in Lopez’s yard. In
conducting a search of Lopez’s home, officers discovered a .223
assault rifle leaning next to the front door, a .30-06 deer hunting
rifle, a single shot 12-gauge shotgun, a single shot 410 shotgun, and
other firearm-related objects. They also located a box containing .45-
4 caliber rounds and a receipt for a .45 Taurus pistol, but were unable
to recover any .45-caliber firearm. The following day, Lopez turned
himself in at the Grady County Sheriff’s Office. In a recorded
statement, Lopez admitted shooting Moon but claimed he did so in
self-defense because Moon tried to attack him with a knife. The
State’s medical examiner explained that Moon sustained two
gunshot wounds, one to his right leg and one to his upper left chest.
The bullet that entered Moon’s chest inflicted fatal wounds and was
recovered from his spine. A GBI firearms examiner testified that the
bullet recovered from the autopsy was a .45-caliber bullet consistent
with having been fired from a Taurus .45 semi-automatic pistol.
Lopez testified on his own behalf and explained that he had
enjoyed living in his quiet neighborhood for many years until new
people moved in, causing strange smells and traffic at all hours of
the night. He believed the fumes were related to the manufacture of
methamphetamine. Lopez continued to have problems with his
neighbors, including Moon, who had threatened him with a knife
and punched him several months before the shooting and continued
5 to harass him. On the day of the shooting, Moon taunted him and
threatened Lopez’s wife. Then Moon went to his truck and grabbed
a knife and came toward him aggressively. When Moon got within
three feet of him while swinging his knife, Lopez explained that he
felt his life was in danger. He shot Moon in self-defense and then left
town in a panic before later turning himself in.
1. Lopez does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdict, the evidence presented at trial and summarized above
was sufficient to authorize a rational jury to find Lopez guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979).2
2. Lopez asserts that his trial counsel labored under a conflict
2 We remind litigants that this Court will end its practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 392 (4) (846 SE2d 83) (2020). This Court began assigning cases to the December term on August 3, 2020. 6 of interest. In order to prevail on this claim, Lopez must show more
than a mere possibility of conflict. He “must show an actual conflict
of interest that adversely affected his attorney’s performance.”
Williams v. State, 307 Ga. 689, 694 (4) (a) (838 SE2d 314) (2020)
(citation and punctuation omitted). Pretermitting whether Lopez
preserved this enumeration of error for appeal,3 he has not made the
required showing. Instead, he argues that his trial counsel was
“improperly aligned” with the State because he had worked as a
prosecutor in the past. As evidence of the alleged conflict of interest,
Lopez points to two statements made by his trial counsel. In the
first, made during voir dire, trial counsel asked the potential jurors
whether he had previously prosecuted a case against anyone on the
panel, explaining that he had worked as a district attorney. Second,
Lopez complains that his trial counsel called him “excitable” during
closing argument. However, the record shows that this statement
was made in the following context:
3 See Thomas v. State, 298 Ga. 106, 110 (2) (a) (779 SE2d 616) (2015)
(appellant’s motion for new trial filed in the trial court did not raise conflict-of- interest issue and the issue was therefore not preserved for appeal). 7 Now, I’ve been a lawyer for almost twenty-two years. I’ve never had a client as excitable as Nick, and he’s excitable because he’s literally fighting for his life. He was on the stand, and you know, he says a lot of stuff, but he’s never, ever deviated from this. He said it in the interview just a couple of days after the incident, he said it every time I’ve talked to him and he said it on the stand, unequivocally, Robert Moon had a knife. I was afraid, Robert Moon had a knife.
Lopez has not shown how either statement illustrates an actual
conflict of interest or negatively impacted his attorney’s
performance. This enumeration of error fails.
3. Lopez separately asserts that he was denied constitutionally
effective assistance of counsel on several grounds. To succeed on this
claim, Lopez must demonstrate both that his trial counsel performed
deficiently and that, absent counsel’s deficient performance, a
reasonable probability exists that the outcome at trial would have
been different. See Strickland v. Washington, 466 U.S. 668, 687-95
(III) (104 SCt 2052, 80 LE2d 674) (1984). If he fails to satisfy either
part of this test, we need not consider the other. See Richards v.
State, 306 Ga. 779, 781 (2) (833 SE2d 96) (2019). To prove deficient
performance, Lopez must show that trial counsel performed “in an
8 objectively unreasonable way, considering all of the circumstances
and in light of prevailing professional norms.” Reyes v. State, 309
Ga. 660, 669 (3) (847 SE2d 194) (2020) (citation and punctuation
omitted). “A strong presumption exists that counsel’s conduct falls
within the broad range of professional conduct.” Id. (citation and
punctuation omitted). “Thus, deficiency cannot be demonstrated by
merely arguing that there is another, or even a better, way for
counsel to have performed.” Davis v. State, 306 Ga. 140, 144 (3) (829
SE2d 321) (2019). With these principles in mind, we address each of
Lopez’s claims in turn.
(a) Lopez argues that trial counsel failed to strike unqualified
jurors and to select a racially balanced jury. We first note that Lopez
has failed to cite any record evidence to support this claim. See
Dresbach v. State, 308 Ga. 423, 427 (2) (841 SE2d 714) (2020)
(“Arguments and representations made in court briefs do not
constitute record evidence to support a finding of fact.” (citation and
punctuation omitted)). Moreover, “the decision as to which jurors to
strike is a strategic decision that, if reasonable, will not support an
9 allegation that counsel’s performance was deficient.” Taylor v. State,
302 Ga. 176, 178 (2) (805 SE2d 851) (2017). And where, as here,
“trial counsel does not testify at the motion for new trial hearing, it
is extremely difficult to overcome the presumption that counsel’s
conduct resulted from reasonable trial strategy.” Brown v. State, 288
Ga. 902, 908 (5) (708 SE2d 294) (2011) (citation and punctuation
omitted). Lopez has not shown that trial counsel’s performance was
constitutionally defective on this ground.
(b) Lopez also asserts that trial counsel failed to object to the
State’s request that Investigator Chris Luckey be allowed to remain
in the courtroom. However, because Investigator Luckey was the
State’s chief investigative agent, the trial court would have acted
within its discretion in denying an objection on this ground. See
OCGA § 24-6-615 (2) (sequestration statute does not authorize
exclusion of “[a]n officer or employee of a party which is not a natural
person designated as its representative”); Anderson v. State, 307 Ga.
79, 88 (5) (834 SE2d 830) (2019). And the failure to make a meritless
objection cannot provide the basis upon which to find ineffective
10 assistance of counsel. See Mattox v. State, 308 Ga. 302, 304-05 (2)
(840 SE2d 373) (2020).
(c) In two related enumerations of error, Lopez claims that trial
counsel failed to properly investigate and introduce all of the GBI’s
investigative summaries and failed to call GBI Special Agent Marko
Jones to testify about his investigative summaries. However, Lopez
has failed to show that trial counsel did not properly investigate the
case. Nor has he shown that trial counsel’s decision not to introduce
the summaries or to call Agent Jones to testify was not a matter of
reasonable trial strategy. See Calhoun v. State, 308 Ga. 146, 151 (2)
(b) (839 SE2d 612) (2020) (“[I]n the absence of testimony to the
contrary, counsel’s actions are presumed strategic.” (citation and
punctuation omitted)). Moreover, the record shows that trial counsel
pursued a strategy of exploring through cross-examination any
inconsistencies in the various witnesses’ statements, and Lopez has
failed to show that this strategy was unreasonable. See Horton v.
State, __ Ga. __, __ (5) (a) (849 SE2d 382) (2020) (“[D]ecisions as to
what witnesses and other evidence to present are matters of trial
11 strategy and are ineffective only if unreasonable ones that no
competent attorney would make.” (citation and punctuation
omitted)); Morrison v. State, 303 Ga. 120, 126 (5) (b) (810 SE2d 508)
(2018) (“Decisions about what questions to ask on cross-examination
are quintessential trial strategy and will rarely constitute
ineffective assistance of counsel.” (citation and punctuation
omitted)).
(d) Lopez also asserts that trial counsel failed to conduct a full
investigation and obtain a pretrial ruling to suppress his custodial
statement, which he alleges was not voluntarily given.4 “When trial
counsel’s failure to file a motion to suppress is the basis for a claim
4 In the same enumeration of error, Lopez also argues in passing that his
counsel should have moved to exclude or object to portions of various witnesses’ testimony. However, “[t]he matter of when and how to raise objections is generally a matter of trial strategy.” Hayes v. State, 298 Ga. 98, 105 (2) (c) (779 SE2d 609) (2015). And Lopez has not carried his burden of proving that trial counsel’s decision in these instances was not a matter of reasonable trial strategy. See Calhoun, 308 Ga. at 151 (2) (b). Nor has Lopez attempted to prove plain error in this regard. See Denson v. State, 307 Ga. 545, 547-48 (2) (837 SE2d 261) (2019) (To establish plain error, the appellant “must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity, or public reputation of judicial proceedings.” (citation and punctuation omitted)). 12 of ineffective assistance, the defendant must make a strong showing
that the damaging evidence would have been suppressed had
counsel made the motion.” Harris v. State, __ Ga. __, ___ (4) (c) (__
SE2d __) (2020) (citation and punctuation omitted). Lopez cannot
make this showing. Rather, the record shows that the day after
Lopez turned himself in, officers interviewed him for approximately
one hour. Before beginning the interview, officers confirmed that
Lopez was able to read and write and reviewed a waiver-of-rights
form with him. Lopez then initialed and signed the form before
agreeing to speak with the officers. Considering the totality of the
circumstances, including the video recording of the interview, there
is nothing to suggest “excessively lengthy interrogation, physical
deprivation, brutality, or other such hallmarks of coercive police
activity that would render the resulting statement involuntary.”
Perez v. State, __ Ga. __, __ (2) (848 SE2d 395) (2020) (citation and
punctuation omitted). Thus, any motion to suppress filed on this
ground would have been meritless, and this enumeration of error
cannot serve as the basis for an ineffective assistance claim. See
13 Mattox, 308 Ga. at 304-05 (2).
(e) Lopez argues that trial counsel should have moved for the
recusal of the prosecutor because the prosecutor had previously tried
an unrelated criminal case against Lopez. However, because Lopez
did not raise this claim in his amended motion for new trial, which
was his first opportunity to do so, it is not preserved for appellate
review by this Court. See Elkins v. State, 306 Ga. 351, 361 (4) (a)
(830 SE2d 217) (2019) (where claim of ineffective assistance of trial
counsel not raised at earliest practicable moment, it is not preserved
for appellate review).
(f) Lopez also argues that trial counsel failed to strike eight
jurors who were either biased or “medically questionable.” We are
not persuaded. As explained in Division 3 (a), the decision as to
which jurors to strike is a matter of trial strategy. Moreover, “[t]he
law presumes that potential jurors are impartial, and the burden of
proving partiality is on the party seeking to have the juror
disqualified.” Brown v. State, 295 Ga. 804, 808 (4) (764 SE2d 376)
(2014) (citation and punctuation omitted). Lopez’s bare assertions
14 are not sufficient to overcome this burden. See Dresbach, 308 Ga. at
427 (2). Accordingly, Lopez has not shown that he was denied
constitutionally effective assistance of counsel.
To the extent that Lopez argues in the same enumeration of
error that the trial court erred in its response to an indication after
the jury was sworn that certain jurors did not wish to serve on the
jury, we discern no error. The record shows that after receiving
notice from the bailiff that some members of the jury somehow
indicated they did not want to serve, the trial court stated in open
court:
And I’m going to let you know, I’m not excusing anyone from this jury unless you have a medical emergency or you have an emergency family matter or something like that. The odds of you getting off are going to be slim to almost none.
Neither Lopez nor the prosecutor objected to the trial court’s
response, and nothing in the record shows that the jurors in question
were unqualified or held an opinion of the guilt or innocence of Lopez
that was so fixed and definite that they would be unable to set such
an opinion aside and decide the case based upon the evidence and
15 the court’s charge. See Collins v. State, 308 Ga. 608, 612 (3) (842
SE2d 811) (2020). Because Lopez is unable to show that a juror was
unqualified to serve, he cannot show that the trial court abused its
broad discretion in refusing to replace any jurors who may not have
wished to serve. See Ware v. State, 305 Ga. 457, 462 (3) (826 SE2d
56) (2019) (trial court has broad discretion in determining whether
to replace a juror with an alternate for good cause).
4. Lopez alleges that the trial court failed to ensure that an
accurate transcription of the trial was secured. Although OCGA §
17-8-5 requires that the presiding judge have the testimony taken
down for the trial of all felonies, when the transcript or record does
not fully disclose what happened at trial, the burden is on the
complaining party to have the record completed in the trial court.
See Bamberg v. State, 308 Ga. 340, 349 (2) (839 SE2d 640) (2020) (if
a criminal defendant believes the transcript omits or misrepresents
a necessary part of the proceeding, he has the responsibility to seek
16 to correct the transcript in that respect); OCGA § 5-6-41 (g).5 Lopez
has not shown that any part of the transcript was incomplete or
inaccurate.
5. Lopez asserts that the trial court erred in denying his pro se
motion to suppress the admission of his custodial statement at trial.
However, a criminal defendant “does not have the right to represent
himself and also be represented by an attorney.” White v. State, 302
Ga. 315, 319 (2) (806 SE2d 489) (2017) (citation and punctuation
omitted). Thus, a pro se filing by a represented party is a legal
nullity without effect. See id. Moreover, for the reasons stated in
Division 3 (d), the record shows that Lopez’s statement was freely
and voluntarily given. Accordingly, this enumeration of error fails.
6. Lopez argues that the trial judge erred in failing to recuse
himself because he had presided over an unrelated criminal case
against Lopez only 18 months prior to the trial in this case. But
5 We also note that, although Lopez complains that the State’s Exhibit
23 (the video recording of Lopez’s custodial statement) was not transcribed, the record shows that the parties agreed that it need not be reported because it was made part of the record and would be available for appellate review. 17 Lopez failed to preserve this enumeration of error for review. “When
a party learns of potential grounds for disqualification of a trial
judge, he must promptly move to recuse or the issue of
disqualification is not preserved for appellate review.” Keller v.
State, 308 Ga. 492, 507 (10) (842 SE2d 22) (2020) (explaining that to
allow otherwise would be to sanction gamesmanship). See also
Uniform Superior Court Rule 25.1 (requiring recusal motion and
accompanying affidavits to be filed within five days of learning
alleged grounds for disqualification).
7. Lastly, Lopez asserts that the trial court erred in responding
to an inquiry from the jury. We disagree. The record shows that
during deliberations the jury asked the trial court for the definition
of felony murder and aggravated assault, “possibly with an
example.” The trial court declined to give an example, but recharged
the jury, without objection from either party, on the definitions of
felony murder and aggravated assault. Because Lopez did not object,
we are limited to reviewing this charge for plain error. See Russell
v. State, __ Ga. __, __ (3) (a) (848 SE2d 404) (2020). To establish plain
18 error, Lopez “must point to an error that was not affirmatively
waived, the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial rights, and the
error must have seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Denson v. State, 307 Ga. 545,
547-48 (2) (837 SE2d 261) (2019) (citation and punctuation omitted).
“In reviewing a challenge to the trial court’s jury instruction,
we view the charge as a whole to determine whether the jury was
fully and fairly instructed on the law of the case.” Russell, __ Ga. at
__ (3) (a) (citation and punctuation omitted). “A jury instruction
must be adjusted to the evidence and embody a correct, applicable,
and complete statement of law.” Jackson v. State, 306 Ga. 475, 477
(2) (831 SE2d 755) (2019) (citation and punctuation omitted).
Because the trial court correctly recharged the jury as to the
definitions of felony murder and aggravated assault, and because
Lopez has not shown that the trial court was required to provide an
example in its recharge, he cannot show error, much less plain error.
Accordingly, this enumeration of error is without merit. See Dixon
19 v. State, 309 Ga. 28, 35 (2) (a) (843 SE2d 806) (2020) (no error where
trial court provided a correct and complete statement of the law
applicable to the charges).
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs, Peterson, Bethel, and Ellington, JJ., concur. Warren, J., not participating.
DECIDED DECEMBER 7, 2020. Murder. Grady Superior Court. Before Judge Chason. Nicolas Lopez, pro se. Joseph K. Mullholland, District Attorney, Moruf O. Oseni, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.