Quijano v. State

516 S.E.2d 81, 271 Ga. 181, 99 Fulton County D. Rep. 1940, 1999 Ga. LEXIS 439
CourtSupreme Court of Georgia
DecidedMay 17, 1999
DocketS99A0009
StatusPublished
Cited by22 cases

This text of 516 S.E.2d 81 (Quijano v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quijano v. State, 516 S.E.2d 81, 271 Ga. 181, 99 Fulton County D. Rep. 1940, 1999 Ga. LEXIS 439 (Ga. 1999).

Opinions

Cabley, Justice.

A jury found Eugene Cadavillo Quijano guilty of malice murder and, in the alternative, guilty of felony murder while in the commission of an armed robbery and aggravated assault. The trial court entered a judgment of conviction and life sentence for malice murder, and the alternative felony murder count was vacated by operation of [182]*182OCGA § 16-1-7. Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). The trial court denied Quijano’s motion for new trial, and he appeals.1

1. The victim was Amanda Puckett, a teenager who was working alone in her mother’s jewelry store when she was shot and killed. Ms. Kyong Cha Brooks, who was working next door, heard a loud noise coming from the jewelry store and went to investigate. She arrived to see a man pulling the victim’s body across the floor. This man looked directly at Ms. Brooks and told her to enter the store. At trial, Ms. Brooks identified the man as Quijano. Two men responding to Ms. Brooks’ screams saw a man running towards and then fleeing in a white Isuzu Rodeo with Olympic license plates, but they could not positively identify Quijano as that man. However, several other eyewitnesses did testify that he was the man they saw leaving the scene of the murder in the Isuzu. Yet another eyewitness identified Quijano from a photographic lineup. His hand and fingerprints were discovered on one of the jewelry store’s glass cases, which had been cleaned shortly before the murder. Quijano owned a white Isuzu Rodeo with Olympic license plates. On the night of the murder, Quijano’s daughter-in-law saw her husband remove a handgun from a safe in her father-in-law’s bedroom. Later that same night, Quijano fled to Mexico and, in the following days, his son and father disposed of the gun. Shortly thereafter, the Quijano family moved to Seattle, and he joined them there. Eventually, however, the entire family moved back to the Atlanta area. After their return to Georgia, Quijano’s daughter-in-law told a friend, whose father was a police detective, what she had observed on the night of the murder. Quijano was arrested. The police questioned his wife, who had been out of the country at the time of the murder, and she informed them that Quijano admitted to her that he went to the jewelry store to rob it and that he accidentally pulled the trigger on the gun. This evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that Quijano was guilty of malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defense counsel overheard Mr. Comeau, one of the State’s eyewitnesses who had yet to testify, discussing the case with Mr. Asker, another eyewitness for the State who had already testified. Outside of the presence of the jury, Mr. Corneau was questioned about the [183]*183conversation and he testified that, although he had related what he saw to Mr. Asker, Mr. Asker did not recount to him any facts relative to the murder. Thus, according to Mr. Corneau, the conversation would not influence his testimony, because his knowledge of the facts regarding the crime was not attributable to anything said by Mr. Asker. The trial court permitted Mr. Corneau to testify, over Quijano’s objection that the violation of the rule of sequestration was disqualifying.

The purpose of the rule of sequestration is to ensure that the testimony of a witness who has yet to testify is not influenced by that of another witness. Childress v. State, 266 Ga. 425, 431 (2) (467 SE2d 865) (1996). However, a violation of the rule does not automatically render a witness incompetent to testify. Hicks v. State, 256 Ga. 715, 719 (12) (352 SE2d 762) (1987). Generally, a violation does not affect the admissibility of testimony, but may impact the offending witness’s credibility. Childress v. State, supra at 431 (2). Where, as here, the improper communication occurs outside the courtroom, the appropriate remedy is for the trial court to admit the testimony and, if requested by opposing counsel, to charge the jury that it can consider the violation in assessing the witness’s credibility. Childress v. State, supra at 432 (2). Since nothing in the transcript contradicts Mr. Corneau’s assurance that the conversation with Mr. Asker would not influence his testimony, the trial court did not abuse its discretion by permitting him to testify. Quijano did not request that the trial court charge the jury with regard to the violation and its possible effect on the credibility of Mr. Corneau’s testimony, and the trial court was not required to give such a charge sua sponte. See Bradford v. State, 182 Ga. App. 337, 339 (6) (355 SE2d 735) (1987).

3. Quijano urges that the State’s unduly suggestive pre-trial procedures caused the in-court identification testimony of both Ms. Brooks and Mr. Corneau to be inadmissible. Insofar as Ms. Brooks is concerned, however, she testified that, because of her fear and shock, she was unable to identify any of the men depicted in the allegedly suggestive photo lineup shown to her before trial. Instead, her only identification of Quijano was made in court. The basis for that identification was her face-to-face confrontation with the murderer and her observations as he fled the scene. The failure of Ms. Brooks to make a pre-trial identification would not require the trial court to strike her in-court identification of Quijano as the man she saw. Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135) (1983). Because Ms. Brooks had ample opportunity to observe the perpetrator and the allegedly suggestive pre-trial photo lineup did not affect her testimony, the trial court properly allowed her in-court identification of Quijano.

[184]*184“Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cits.] . . .” [Cit.] “Moreover, ‘(e)ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. (Cit.)’ [Cit.] . . .” [Cit.]

Futch v. State, 192 Ga. App. 345, 346 (385 SE2d 18) (1989).

Mr. Corneau also testified that he based his in-court identification testimony upon his own observations, and he was quite certain that Quijano was the man he saw on the day of the murder. Therefore, even assuming, without deciding, that a photographic lineup which Mr. Corneau viewed before trial was suggestive, his in-court identification testimony still was admissible. Futch v. State, supra.

4. At trial, Quijano’s wife refused to testify against him. When the State sought to introduce his wife’s out-of-court statement containing the reference to his inculpatory admission, Quijano raised a hearsay objection. The trial court held that the statement was admissible pursuant to the “necessity” hearsay exception. Quijano enumerates this evidentiary ruling as error.

Under the hearsay exception recognized in OCGA 24-3-1 (b), an out-of-court statement can be admitted when it is both “necessary” to do so and the statement itself evidences a guarantee of sufficient “trustworthiness.”

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Quijano v. State
516 S.E.2d 81 (Supreme Court of Georgia, 1999)

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Bluebook (online)
516 S.E.2d 81, 271 Ga. 181, 99 Fulton County D. Rep. 1940, 1999 Ga. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quijano-v-state-ga-1999.