308 Ga. 706 FINAL COPY
S20A0563. SANTANA v. THE STATE.
WARREN, Justice.
Cuevas Carlos Santana was convicted of malice murder and
other crimes in connection with the shooting deaths of Israel
Espinoza Mendoza, Vincente Soto Chavez, and Renato Soto
Valencia.1 On appeal, Santana argues that the evidence was
1 Santana was indicted by a DeKalb County grand jury with Edwin Vega
Landero and Oscar Magdaleno for the malice murder of Mendoza (Count 1); felony murder of Mendoza predicated on aggravated assault (Count 2); malice murder of Chavez (Count 3); felony murder of Chavez predicated on aggravated assault (Count 4); felony murder of Chavez predicated on false imprisonment (Count 5); malice murder of Valencia (Count 6); felony murder of Valencia predicated on aggravated assault (Count 7); felony murder of Valencia predicated on false imprisonment (Count 8); aggravated assault of Mendoza (Count 9); aggravated assault of Chavez (Count 10); aggravated assault of Valencia (Count 11); false imprisonment of Chavez (Count 12); and false imprisonment of Valencia (Count 13). Santana and Landero were tried together before a jury in September 2016. On September 23, 2016, the jury found Santana guilty on all 13 counts and found Landero not guilty on all counts. On September 30, 2016, the trial court sentenced Santana to life in prison without the possibility of parole for Counts 1, 3, and 6 to run consecutively and consecutive 10-year terms for Counts 12 and 13. Counts 2, 4, 5, 7, and 8 were vacated by operation of law, and Counts 9, 10, and 11 were merged with Counts 1, 3, and 6, respectively. Santana timely filed a motion for new trial, which he amended through new counsel. After holding a hearing on the motion, the trial court denied it on October 7, 2019. Santana timely insufficient to support his convictions, that the trial court erred by
declining to grant Santana a new trial on the general grounds, and
that trial counsel provided ineffective assistance. We disagree and
affirm Santana’s convictions.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at Santana’s trial showed that at approximately
9:00 p.m. on November 8, 2010, police responded to a 911 call
reporting a shooting at the Avenues Apartments complex in DeKalb
County. When police arrived, they found a male who was later
identified as Mendoza in the hallway of Building A of the complex.
He had been shot in the chest and the head and died after being
taken to the hospital. Police also discovered a car near Building J of
the complex that had a blood trail leading from it to the apartment
buildings.2 The passenger-side door of the car was open, and a pool
of blood was in the passenger’s seat. Several shell casings, a few live
filed a notice of appeal, and the case was docketed in this Court to the term beginning in December 2019 and submitted for a decision on the briefs.
2 The car was later connected to the crime after documentation belonging
to Mendoza and Chavez was found in it during a search. .40-caliber rounds, and two t-shirts were located in the parking lot
near the car and the blood trail.
The next morning, police returned to the complex to conduct a
canine search for potential evidence. During the search, a
maintenance worker contacted police and stated that he had just
seen a body in the bedroom of Apartment C-11. According to the
worker, after he had gone into Apartment C-12 to do maintenance
work, he saw that the door to Apartment C-11 was cracked open and
went inside the apartment after becoming suspicious because he
knew the apartment was supposed to be vacant. Police then
searched Apartment C-11 and discovered a male, later identified as
Chavez, in a bedroom lying face down with his arms and ankles
bound with duct tape. He was deceased with two gunshot wounds
to the head. Additionally, police found a second deceased male, later
identified as Valencia, in the bathroom. His arms and ankles were
also bound, and he had two gunshot wounds to the head. Bullet
fragments and a shell casing, which were later identified by a
firearms expert as coming from a 9mm gun, were located in the bathroom. Latent fingerprints were lifted from the bathroom.
After failing to identify any suspects, the case went cold. Then,
in June 2012, Ariel Jacquez-Cruz, a taxi driver, came forward and
told police that Santana, Landero, and Magdaleno had committed
the triple homicide and identified the three men in photographic
lineups.
At trial, medical examiners testified that all three victims died
as a result of gunshot wounds. Cruz testified that he met Santana
and his co-defendant Landero when Cruz drove them in his taxi and
that Santana was a frequent passenger. Cruz also testified that
Santana and Landero were involved in distributing drugs, had
carried drugs in his taxi multiple times, and that he had once
observed Santana use a .40-caliber gun. During these taxi rides,
Cruz testified, Santana confessed to Cruz on multiple occasions that
he was involved in the triple homicide at the Avenues Apartments.
Cruz also testified that after Santana was arrested, Santana called
him from jail to ask Cruz to locate Santana’s gun and sell it. On
cross-examination, defense attorneys for Santana and Landero examined Cruz about being a confidential informant and the fact
that “shortly before” Cruz came forward and identified Santana,
Landero, and Magdaleno as the perpetrators, police had searched
Cruz’s house for drugs.
A fingerprint expert testified at trial that he examined all of
the latent prints given to him, including elimination prints3 and
prints taken from the three suspects, and matched Santana’s
fingerprint and palm print to latent prints taken from the bathroom
sink area of Apartment C-11. On cross-examination, the expert
admitted that Santana’s palm print was the only palm print he
received for analysis, and that the print he matched to Santana was
not of good enough quality to be put into a computerized system,
meaning the expert could only determine there was a match by
performing a subjective comparison using a “hand-held magnifier.”
Additionally, a detective testified at trial that in the course of
his investigation, he listened to recordings of phone calls made by
3 The expert explained that he took all of the apartment complex employees’ fingerprints to compare them with the lifted latent prints so he could eliminate the employees as suspects. Santana from jail. Although the calls were in Spanish, the detective
testified that he was bilingual in Spanish and English and that he
identified Santana’s voice on the calls because he had interviewed
Santana shortly before listening to the calls. Although a recording
of the jail calls was not formally translated to English word-for-word
or played for the jury, the detective testified that in one phone
conversation, Santana told his daughter that he needed to get in
touch with Landero to tell him that the police pressured Santana
into identifying Landero and that Santana and Landero needed to
get their stories straight.
1. Santana argues that the evidence presented at trial was not
sufficient to support his convictions. Specifically, Santana argues
that the evidence is insufficient given that Cruz “failed to disclose
any information to the police until it was beneficial to him,” and he
was the “only” witness to testify that Santana was involved in the
murders.
When evaluating challenges to the sufficiency of the evidence,
we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have
found the defendant 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); Jones v. State, 304 Ga. 594,
598 (820 SE2d 696) (2018). “We leave to the jury the resolution of
conflicts or inconsistencies in the evidence, credibility of witnesses,
and reasonable inferences to be derived from the facts.” Smith v.
State, 308 Ga. 81, __ (839 SE2d 630) (2020). “As long as there is
some competent evidence, even though contradicted, to support each
fact necessary to make out the State’s case, the jury’s verdict will be
upheld.” Id. (citation and punctuation omitted).
Here, Cruz testified that Santana told him about Santana’s
involvement in the three murders at the Avenues Apartments on
multiple occasions and that Santana called Cruz from jail to ask
Cruz to help Santana locate his gun and sell it. A fingerprint expert
testified that latent prints that were lifted from the crime scene
matched Santana’s fingerprint and palm print, and a detective
testified that while Santana was in jail, he told his daughter in a phone conversation that he needed to get in touch with Landero to
tell him that the police pressured Santana into identifying Landero
and that Santana and Landero needed to get their stories straight.
It was for the jury to assess the credibility of the witnesses —
including Cruz — and to resolve any discrepancies in the evidence
presented at trial. See Smith, 308 Ga. at __; see also Boswell v.
State, 275 Ga. 689, 691 (572 SE2d 565) (2002) (explaining that the
jury may decide “what credibility and weight to give” expert
opinions). Accordingly, we conclude that the evidence presented at
trial was sufficient to authorize a rational jury to find Santana guilty
beyond a reasonable doubt of the crimes for which he was convicted.
See Jackson, 443 U.S. at 319.
2. Santana contends that the trial court erred in denying his
motion for new trial on the general grounds. Specifically, Santana
argues that the trial court abused its discretion by failing to exercise
its discretion and that, to the extent the trial court did exercise its
discretion, the court abused it by improperly doing so.
It is well established that, even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial
if the verdict of the jury is “contrary to . . . the principles of justice
and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and
strongly against the weight of the evidence,” OCGA § 5-5-21. See
also White v. State, 293 Ga. 523, 524 (753 SE2d 115) (2013). “When
properly raised in a timely motion, these grounds for a new trial —
commonly known as the ‘general grounds’ — require the trial judge
to exercise a broad discretion to sit as a thirteenth juror.” Id.
(citation and punctuation omitted). A trial court’s discretion is
“substantial,” and the trial judge “must consider some of the things
that she cannot when assessing the legal sufficiency of the evidence,
including any conflicts in the evidence, the credibility of witnesses,
and the weight of the evidence,” when exercising such discretion. Id.
at 524-525 (citation and punctuation omitted).
To the extent Santana claims that the trial court erred in
failing to exercise its discretion as the thirteenth juror, see Edwards
v. State, 308 Ga. 176, 180 (839 SE2d 599) (2020), we disagree. In its
order denying Santana’s motion for new trial, the trial court stated that it “considered the legal sufficiency of the evidence when
combined with any conflicts in the evidence, the credibility of
witnesses, and the weight of the evidence,” and that it “further
considered the merits of [the d]efendant’s argument and brief and,
in an exercise of discretion, [found] that the verdict was neither
‘contrary to evidence and the principles of justice and equity,’ under
OCGA § 5-5-20 nor ‘decidedly and strongly against the weight of the
evidence’ under OCGA § 5-5-21.” Thus, “there is no indication that
the court failed to exercise its discretion in denying the new trial
motion.” Wilson v. State, 302 Ga. 106, 109 (805 SE2d 98) (2017); see
also Edwards, 308 Ga. at 180.
To the extent Santana contends that the trial court abused its
discretion or otherwise erred in exercising its discretion as the
thirteenth juror, his argument also fails. Santana specifically
argues that the trial court should have granted him a new trial
because the evidence against him rested on “the questionable,
biased, unreliable testimony of a ‘professional’ snitch” (Cruz) and
because the fingerprint expert “admitted that the United States does not have a minimum number of points that must be matched
before an expert can declare a match” and that his analysis was
“subjective in nature.” But “[w]hether to grant a new trial under
OCGA § 5-5-21 is committed solely to the discretion of the trial court,
and when an appellant asks this Court to review a trial court’s
denial of a new trial on this ground, we review the case under the
[sufficiency] standard set forth in Jackson v. Virginia.” Williams v.
State, 307 Ga. 689, 692 (838 SE2d 314) (2020). As explained above,
the evidence presented at trial was sufficient to authorize a rational
jury to find Santana guilty beyond a reasonable doubt of the crimes
for which he was convicted. See id. Accordingly, his enumeration of
error fails.
3. Santana argues that his trial counsel provided ineffective
assistance by (a) failing timely to file a motion to exclude fingerprint
testimony and (b) failing to secure a “proper translation” of
Santana’s phone call recordings from jail. We disagree.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was deficient and that the deficient performance resulted in prejudice to
the defendant. See 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 Strickland, 466 U.S. at
687-688. 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. See
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).
(a) Santana argues that his trial counsel was ineffective for failing to file a Harper motion4 to exclude fingerprint testimony the
State intended to present at trial. We disagree.
At trial, an expert print examiner, who had examined the print
evidence in the case, testified that a latent fingerprint and palm
print lifted from the crime scene matched Santana’s fingerprint and
palm print. Trial counsel did not file any pretrial motions seeking
to exclude the testimony. At the hearing on Santana’s motion for
new trial, trial counsel testified that “in hindsight,” he would have
filed a Harper motion to challenge the fingerprint evidence but that
“at the time” of trial he “had zero faith in [the fingerprint evidence]
being excluded.” He testified that his cross-examination of the
fingerprint expert was “one of the better expert cross-examinations
[he had] probably ever done.” His co-counsel testified at the motion
for new trial hearing that he did a “good bit of research” into the
fingerprint evidence and that they “retained an expert witness” who
prepared a report that aided trial counsel in his cross-examination
preparation. In its order denying Santana’s motion for new trial,
4 See Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982). the trial court concluded that “[t]here was no deficient performance
as relating to the fingerprint testimony.”
“When trial counsel’s failure to file a motion to suppress is the
basis for a claim of ineffective assistance, the defendant must make
a strong showing that the damaging evidence would have been
suppressed had counsel made the motion.” Mosley v. State, 307 Ga.
711, 720-721 (838 SE2d 289) (2020) (citation and punctuation
omitted). In Harper v. State, we explained that “it is proper for the
trial judge to decide whether [a] procedure or technique in question
has reached a scientific stage of verifiable certainty,” basing its
determination on “exhibits,” “treatises,” “the rationale of cases in
other jurisdictions,” or “evidence presented to it at trial by the
parties,” including expert testimony. 249 Ga. 519, 525-526 (292
SE2d 389) (1982). We also stated that “[o]nce a procedure has been
recognized in a substantial number of courts, a trial judge may
judicially notice, without receiving evidence, that the procedure has
been established with verifiable certainty.” Id. at 526.
Santana has not made any showing — much less a strong one —that the fingerprint evidence used in this case has not reached a
“scientific stage of verifiable certainty,” Harper, 249 Ga. at 525, such
that the evidence would have likely been excluded under the Harper
standard. Indeed, we have already recognized that fingerprint
evidence is “not novel, and has been widely accepted in Georgia
courts.” Whatley v. State, 270 Ga. 296, 299 (509 SE2d 45) (1998); see
also Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991)
(noting the “widespread” acceptance of fingerprint evidence). And
to the extent Santana asserts that the specific fingerprint
methodology or analysis used in this case is not scientifically
supported, he has offered no argument to support such an assertion.
Moreover, to the extent that Santana’s argument rests on trial
counsel’s testimony that he would have filed a Harper motion “in
hindsight,” that argument fails because hindsight “has no place” in
the Strickland analysis. See Shaw v. State, 292 Ga. 871, 876 n.9
(742 SE2d 707) (2013) (“[H]indsight has no place in an assessment
of the performance of trial counsel, and a lawyer second-guessing his
own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim.”) (citation and
punctuation omitted). Accordingly, because Santana has failed to
show that the fingerprint evidence would have been suppressed had
trial counsel filed a motion, we agree with the trial court’s conclusion
that trial counsel’s performance was not deficient. See Moore v.
State, 293 Ga. 676, 679 (748 SE2d 419) (2013) (concluding that “the
failure to raise a meritless motion or objection is not ineffective
assistance of counsel” where “a motion to suppress the fingerprint
evidence and an objection to its admission at trial would have been
without merit”).
(b) Santana argues that his trial counsel was ineffective for
failing to obtain a “proper translation” of Santana’s recorded jail
calls, which trial counsel had informally translated through the
“internal translation” of a native Spanish speaker in his office, but
for which he had not requested a “certified translation of the
recordings.” We disagree that Santana’s trial counsel was
constitutionally ineffective on this basis.
In its order denying Santana’s motion for new trial, the trial court found that Santana failed to show prejudice with respect to his
claim of ineffective assistance because Santana had neither “pointed
to [any]thing that was mistranslated by the officer who testified
about the jail calls” nor “pointed to anything that might have been
contained within the jail calls that was exculpatory and that would
have been discovered and admitted if only the calls had been
translated.” We agree with the trial court. Even assuming —
without deciding — that trial counsel was deficient for failing to
obtain a formal, translated transcript of the jail calls, Santana has
not alleged that any testimony presented at trial about the calls was
mistranslated or that anything contained in the jail calls would have
been exculpatory. As a result, he has not shown that but for trial
counsel’s alleged deficiency, the result of the trial would have been
different. See Howard v. State, 298 Ga. 396, 399 (782 SE2d 255)
(2016) (concluding that the defendant could not show prejudice
where he argued that trial counsel was ineffective for failing to have
certain blood evidence from the crime scene tested because the
defendant “did not have the blood tested post-trial” and thus had “not shown that this evidence would have been favorable to his
defense” and that a reasonable probability existed that “the result
of the trial would have been different”); Valentine v. State, 293 Ga.
533, 537 (748 SE2d 437) (2013) (concluding that the defendant failed
to establish prejudice “by showing a reasonable probability that the
result of his trial or sentencing would have been any different”
where he argued that trial counsel was ineffective for failing to seek
a psychological evaluation of the defendant but “presented no expert
testimony showing what a pretrial evaluation could have revealed
which would have been favorable to the defense had counsel
requested one”) (citation and punctuation omitted); Shank v. State,
290 Ga. 844, 848 (725 SE2d 246) (2012) (concluding that the
defendant failed to establish prejudice where he argued that “his
counsel did not adequately investigate the case” but “failed to show
that a more thorough investigation would have yielded any
significant exculpatory evidence”). Santana’s ineffective assistance
claim therefore fails.
Judgment affirmed. All the Justices concur. DECIDED APRIL 20, 2020 --- RECONSIDERATION DISMISSED MAY 18, 2020. Murder. DeKalb Superior Court. Before Judge Hydrick. Ruth R. McMullin, for appellant. Sherry Boston, District Attorney, Deborah D. Wellborn, Elizabeth H. Brock, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.