297 Ga. 418 FINAL COPY
S15A0430. PENA v. THE STATE.
HUNSTEIN, Justice. Flavio Garay Pena was convicted of malice murder and related crimes in
connection with the death of Jose David Cruz Hernandez. Pena appeals the
denial of his amended motion for new trial, contending that the evidence was
insufficient for a jury to find him guilty; the trial court erred in refusing to strike
a juror for cause, denying his motion to exclude his custodial statement,
excluding certain testimony, and giving an improper jury charge; and his trial
counsel rendered ineffective assistance. Finding no error, we affirm.1
1 On January 23, 2008, a Gwinnett County grand jury indicted Pena for malice murder, felony murder, and aggravated assault. Pena was tried before a jury on October 15-19, 2012, and found guilty on all counts. On October 22, 2012, the trial court sentenced Pena to a term of life imprisonment on the malice murder count. The remaining counts merged or were vacated by operation of law. Through trial counsel, Pena filed a motion for new trial on October 26, 2012, which was amended through new appellate counsel on March 11, 20, and 28, 2014. The trial court denied Pena’s amended motion for new trial on May 12, 2014. Pena filed a notice of appeal on May 15, 2014, which he amended on May 27, 2014. In accordance with the notice of appeal, the case was originally docketed in the Court of Appeals, but, through an order entered on October 21, 2014, the Court of Appeals properly transferred the case to this Court. The case was docketed to the January 2015 term of this Court and was submitted for decision on the briefs. Viewed in the light most favorable to the jury’s verdict, the evidence
adduced at trial established as follows. At approximately 3:30 a.m. on the
morning of November 4, 2007, Gwinnett County police responded to a call about
a fight in the Arnold Road area and encountered Pena and another man walking
down the road. The officers observed that the bottoms of both legs on Pena’s
jeans were “completely encircled” with blood and that he had blood on the top
of his work boots. Pena told the officers that he was “fighting a friend,” the
friend made him mad, and he “kicked his a**.” When one of the officers asked
Pena if he used any weapons on his friend, Pena responded that he did not need
any weapons, and he started to laugh and pointed at his bloodied boots. During
this time, Pena never indicated to the officers that he was frightened of this friend
or that this friend had attacked him. Officers arrested Pena for disorderly
conduct. Additionally, neither the officers who encountered Pena on the road
nor the officer who booked him into the detention center noticed any injuries on
him, and Pena did not indicate that he had been injured. Later that same day,
officers discovered the deceased victim, subsequently identified as Jose David
Cruz Hernandez, lying face down in a drainage ditch near Arnold Road. The
victim’s face appeared to have been pushed or driven into the ground, a large
area of pooling blood surrounded his head and upper torso, and there was blood
spatter on the grass and road near the victim’s body.
2 The medical examiner testified that the victim suffered numerous injuries,
including the following: several depressed skull fractures at the top and back of
the head, hemorrhaging inside the skull, fractures in the bones of each cheek that
caused the right side of the face to be “flattened,” injuries to the forearms
consistent with defensive wounds, a tear to the brain stem, and a partially torn
right ear, separated from the head. The tread-like pattern of bruising on the
victim’s left cheek suggested to the medical examiner that the bruising could
have been caused by footwear. The medical examiner also opined that a
significant amount of trauma to the victim’s head occurred while “the head [was]
down and supported against a firm surface, such as the ground, and with multiple
blows occurring . . . in that position.” The medical examiner identified the cause
of death as blunt force trauma to the head, and she testified that it would have
required “a significant amount of force” to cause the extensive fracturing of the
skull that the victim suffered. Additionally, testing showed that DNA from
blood recovered from Pena’s jeans and boots matched the victim’s DNA.
During Pena’s subsequent police interview, Pena explained that he and the
victim were walking down a roadway after leaving a club where they had been
drinking. The victim began to “insult” Pena and then threatened him by
repeatedly telling Pena that he was going to kill him. Pena believed that the
victim was holding a broken bottle behind his back and was “scared” that the
victim was going to kill him. Pena struck the victim with his hand, and the
3 victim fell to the ground. Pena encouraged the victim to get up, but each time
the victim attempted to rise, Pena kicked him. Although Pena initially stated that
he did so to prevent the victim from hitting him, he later stated that he did not
think that the victim would have been able to get up and that he continued to
kick the victim “[b]ecause he made [Pena] mad.” Pena stated that he did not
know whether the victim was alive or dead when he left him, and Pena
“chuckled” as he indicated that he kicked the victim approximately 30 times.
Finally, Pena noted that he and the victim had had prior difficulties.
1. The evidence as described above was sufficient to enable a rational
trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of
the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979). The issues of witness credibility and whether
a killing is justified or intentional and malicious are for the jury, “and the jury is
free to reject a defendant’s claim that he acted in self-defense.” White v. State,
287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010) (citation omitted). Pena
contends that the State failed to prove beyond a reasonable doubt that he “was
not acting as a reasonable person with battered person syndrome would [act] in
the . . . presence of a real threat when [the victim] told [Pena that] he would kill
him.” See Chester v. State, 267 Ga. 9 (2) (471 SE2d 836) (1996) (explaining that
battered person syndrome evidence is admissible and relevant in a proper case
4 as a component of justifiable homicide by self-defense). However, for the
reasons discussed in Division 5, infra, the trial court properly did not allow the
introduction of any evidence that Pena suffered from battered person syndrome.
2. Pena argues that the trial court abused its discretion in refusing to strike
Juror 25 for cause because the prospective juror was biased. During voir dire,
Juror 25 stated that he would “find it difficult to be somewhat impartial due to
the fact that [Pena] beat somebody to death . . . versus it being impulsive,
shooting somebody,” and that he found it difficult to believe that a person could
beat another person to death for ten to fifteen minutes. However, upon further
questioning, Juror 25 indicated that he had not formed an opinion as to the guilt
or innocence of the defendant, was prepared to listen to the facts, would not
ignore the trial court’s instructions, could listen to the evidence in the case and
reach a decision based on that evidence, and believed that he could be fair and
impartial. Based on these statements, the trial court refused to strike Juror 25 for
cause. As this juror did not “express[ ] a position that was so fixed and definite
that [he] would not be able to decide the case based on the evidence and the trial
court’s instructions,” we do not find any manifest abuse of discretion in the trial
court’s refusal to strike this juror for cause. See Grimes v. State, 296 Ga. 337,
343-344 (1) (c) (766 SE2d 72) (2014). See Cade v. State, 289 Ga. 805 (3) (716
SE2d 196) (2011).
5 3. Pena contends that the trial court erred in denying a motion to exclude
his custodial statement. Specifically, he alleges that the Spanish2 version of the
Miranda3 warnings he was given did not adequately inform him of his
constitutional rights. In support of his claim, he points to testimony in the record
that the detective used “made-up” Spanish words and made mistakes in gender,
accent, pronunciation, formality, and conjugation when giving the Miranda
warnings to Pena.
“The trial court determines the admissibility of a defendant’s statement
under the preponderance of the evidence standard considering the totality of the
circumstances.” Sosniak v. State, 287 Ga. 279, 279 (1) (695 SE2d 604) (2010)
(citations and punctuation omitted). Furthermore, we have explained:
When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. . . . [T]his Court has identified three corollaries of th[is] principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.
2 Pena’s native language was Spanish, although he also spoke limited English.
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
6 Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (citations and
footnotes omitted).
The testimony at the Jackson-Denno4 hearing showed the following. A
Spanish-speaking detective gave Pena his Miranda warnings and assisted in
communications between Pena and another detective during Pena’s interview.
A certified court interpreter, who had reviewed a videotape of the interview,
testified that the Spanish-speaking detective told Pena the following in Spanish
at the beginning of the interview: “before we talk, I have to tell you about your
rights”; “you have to understand your rights”; “you can stay silent”; “[a]nything
you say would be used against you in court”; “[y]ou can have an attorney before
or after”; “[i]f you don’t have enough money to pay for an attorney, then you can
ask for one to be appointed to you”; “this person could be present during any
interrogation”; “do you wish to answer any questions without an attorney being
present?”; and “you can stop the interrogation at any time.” The interpreter
testified that the detective “mispronounced” the Spanish word for “interrogation”
and used “a made up word” that sounded similar to the Spanish word for “name”
in explaining to the defendant that he could have an attorney “named” for him.
However, she also testified that she was able to interpret the detective’s
4 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 7 statements by putting the words in context, which she indicated was not unusual
when interpreting. Finally, the interpreter testified that the officer asked Pena,
“Do you understand the rights? Are you sure?” followed by “Do you want to
talk to us now?” and that Pena responded by stating, “Uh-huh,” to indicate that
he understood his rights and again to indicate that he was willing to talk with the
detectives. According to the videotape of the interview, Pena also nodded his
head in the affirmative. The interpreter also testified that she had reviewed the
videotaped interview in its entirety and that at no point were any threats or
promises communicated in Spanish to Pena nor did Pena make a request to stop
the interview or for an attorney.
After hearing this evidence and viewing the videotaped interview, the trial
court found that, even though the detective used “some unintelligible words,”
“the totality of the circumstances show[ed] that the defendant . . . was aware that
he was being informed of his critical Miranda rights at the time, . . . that [he]
made a knowing and intelligent waiver of his Miranda rights and that the
statement made after the waiver of those rights w[as] . . . voluntarily given.”
Considering the totality of the circumstances, the trial court was authorized to
conclude that the State had shown by a preponderance of the evidence that Pena
knowingly and voluntarily waived his Miranda rights and that his statement was
voluntary. See Delacruz v. State, 280 Ga. 392 (2) (627 SE2d 579) (2006)
(holding that whether an accused understood the Miranda warnings depends on
8 the totality of the circumstances, not solely on the interpreter’s skill, and that an
imperfect translation of the rights does not rule out a valid waiver as long as the
accused understood the warnings).
4. Pena argues that the trial court erred in disallowing the testimony of
Pena’s sister, that Pena had told her that the victim had inflicted the injuries on
him. The trial court did not abuse its discretion in correctly concluding that,
unless Pena testified and was subject to cross-examination, his sister’s proffered
testimony was inadmissible hearsay because she was not able to testify from her
own direct knowledge that the victim inflicted the injuries on Pena. See Parker
v. State, 276 Ga. 598 (2) (581 SE2d 7) (2003) (holding that a defendant’s
self-serving pre-trial statements are inadmissible hearsay unless the defendant
testifies); Grano v. State, 265 Ga. 346 (3) (455 SE2d 582) (1995) (holding that
evidence of a victim’s prior violent acts may not be established by hearsay
testimony); see also Smith v. State, 284 Ga. 304 (3) (667 SE2d 65) (2008)
(holding that a trial court’s evidentiary rulings are reviewed for an abuse of
discretion). Furthermore, the trial court did not abuse its discretion in
disallowing Pena’s sister to testify that she had seen bruises or injuries on Pena
when he was living with the victim. As the trial court concluded, the testimony
was not relevant without evidence showing that the victim caused the injuries,
and Pena made no proffer that included such evidence. See State v. Hodges, 291
Ga. 413, 417 (728 SE2d 582) (2012) (emphasizing that “a linchpin of the ‘chain
9 of reason’” in admitting a victim’s prior acts of violence as relevant to a
defendant’s justification defense is that the “defendant prove that the victim
committed the prior acts of violence”).
5. Pena contends that the trial court erred in disallowing expert testimony
regarding his symptoms of post-traumatic stress disorder and his relatives’
testimony about physical abuse and corporal punishment that he experienced in
childhood. He asserts that the exclusion of this evidence prevented him from
presenting a justification defense based on battered person syndrome. However,
the evidence in question was not admissible to support Pena’s justification
defense. “Because justification is based on the fears of a reasonable person, the
subjective fears of a particular defendant are irrelevant in the evaluation of this
defense.” O’Connell v. State, 294 Ga. 379, 382 (3) (754 SE2d 29) (2014)
(citation omitted; emphasis in original). Therefore, evidence of abuse or violent
acts committed against a defendant by someone other than the victim is not
admissible to support a justification defense. See id. (finding evidence of
childhood abuse committed against the defendant by someone other than the
victim inadmissible to support a justification defense); Bryant v. State, 271 Ga.
99 (3) (515 SE2d 836) (1999) (same as to expert testimony that the defendant
suffered from a post-traumatic stress disorder from childhood abuse committed
by someone other than the victim). Moreover, Pena was unable to proffer any
admissible evidence indicating that he and the victim had a close personal
10 relationship or that the victim had a history of abusing him. See Mobley v. State,
269 Ga. 738, 740 (1) (505 SE2d 722) (1998) (listing applicable factors in
determining whether a self-defense claim based on the battered person syndrome
has been established). Accordingly, we find no abuse of discretion on the part
of the trial court, and thus, no error.
6. (a) Pena argues that the court erred in giving the following jury charge:
In applying the laws of self-defense, a person is justified to kill another person in defense of self or others. The standard is whether the circumstances were such that they would excite the fears of a reasonable person. For the killing to be justified under the law, the accused must truly have acted under the influence of these fears and not in the spirit of revenge.
Pena contends that it was plain error within the meaning of OCGA § 17-8-58 (b)
to charge the jury that, in order for a killing to be justified, the defendant must
not have acted “in the spirit of revenge.”
Pena has waived plain error analysis of this issue because he requested the
charge in question and made no objection to the charge at trial. White v. State,
297 Ga. 218 (__ SE2d __) (2015) (holding that the defendant waived plain error
analysis where “he requested the pattern charge in question and agreed with the
trial court’s ultimate decision to give the charge”). Moreover, a review of the
trial transcript shows that defense counsel tailored his closing argument to this
charge and twice told the jury that the State had the burden of disproving
11 beyond a reasonable doubt that Pena had acted under the influence of a
reasonable fear and not in a spirit of revenge. Under these circumstances, Pena
affirmatively waived for appellate review the error that he now alleges, and thus,
it provides no basis for reversal.
(b) Nevertheless, because Pena also claims that his trial counsel provided
ineffective assistance with respect to this jury charge, see Division 7, infra, we
will address the merits of this charge. See Woodard v. State, 296 Ga. 803 (3)
(b), (771 SE2d 362) (2015); Hartsfield v. State, 294 Ga. 883 (2) (757 SE2d 90)
(2014). Pena alleges that this jury instruction placed an additional burden on
him not authorized by the statutory definition of justification in OCGA § 16-3-21
because the language, “the spirit of revenge,” no longer appears in this statute.5
5 The language in section 26-1012 of the Code of 1933 provided that a defendant is justified in using deadly force only if “the party killing really acted under the influence of th[e] fears [of a reasonable man], and not the spirit of revenge.” In 1968, when the statutes setting forth defenses to criminal liability were rewritten as a part of an act to provide a new Georgia Criminal Code, the “spirit of revenge” language was omitted from the provisions defining justification. See Ga. L. 1968, pp. 1249, 1272-1274, enacting Chapter 26-9, “Defenses to Criminal Liability,” composed of Code Ann. §§ 26-901 through 26-907; Code Ann. § 26-902. The current version of the statute also omits this language. OCGA § 16-3-21.
12 “[A] jury instruction must be adjusted to the evidence and embody a
correct, applicable, and complete statement of law.” Roper v. State, 281 Ga.
878, 880 (2) (644 SE2d 120) (2007) (citation and punctuation omitted). It is well
settled that “[t]he law will not justify a killing for deliberate revenge however
grievous the past wrong may have been.” Pearson v. State, 277 Ga. 813, 814 (1)
(596 SE2d 582) (2004) (citation and punctuation omitted) (explaining that a
defendant who kills another out of revenge is guilty of the crime of murder).
See, e.g., Slaughter v. State, 278 Ga. 896, 897 (608 SE2d 227) (2005).
Additionally, when comparing the current language of OCGA § 16-3-21 with the
previous statute that included the “spirit of revenge” language, we have remarked
that “[i]n essence the old law and the new law have the same standard as to
justification of homicide.” Brooks v. State, 227 Ga. 339, 342 (3) (180 SE2d 721)
(1971). Therefore, the instruction at issue is a correct statement of the law. See
Teems v. State, 256 Ga. 675 (4) (352 SE2d 779) (1987) (holding that the court’s
charge, that “the law will not justify a killing for deliberate revenge however
grievous the past wrong may have been,” was a correct statement of law).
Having reviewed the trial court’s jury charges as a whole, see Davis v.
State, 290 Ga. 757 (5) (725 SE2d 280) (2012), we conclude that the charges
properly covered the applicable principles of law and did not add an additional
“hurdle” to Pena’s affirmative defense of justification, as he contends. 7. Pena
argues that trial counsel was ineffective for requesting the jury charge discussed
13 in Division 6, supra, because it included the outdated and prejudicial language
regarding the “spirit of revenge.” To prevail on this claim, Pena must show that
trial counsel performed deficiently and that, but for the deficiency, there is a
reasonable probability that the outcome of the trial would have been more
favorable to him. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104
SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d
280) (2010).
As explained in Division 6 (b), supra, this instruction was not legally
improper. Accordingly, Pena’s ineffective assistance claim fails. See Vergara
v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010).
Judgment affirmed. All the Justices concur.
Decided June 29, 2015.
Murder. Gwinnett Superior Court. Before Judge Walker, pro hac vice.
Sharon L. Hopkins, for appellant.
Daniel J. Porter, District Attorney, Tracie H. Cason, Christopher M. Quinn,
Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.