303 Ga. 232
FINAL COPY
S17A1662. RAMIREZ v. THE STATE.
GRANT, Justice.
Orlando Ramirez appeals his convictions for malice murder, attempted
murder, and other crimes associated with a shooting in which Bruno Rodriguez
was killed and Daniel Maldonado-Flores was injured. In his sole enumeration
of error, Ramirez argues that the trial court erred in excluding evidence of other
incidents of criminal activity at the bar where the shooting took place. We
disagree, and therefore affirm.1
1
The shootings occurred on March 23, 2014. On May 29, 2014, Ramirez was indicted by
a Whitfield County grand jury for malice murder of Rodriguez (Count 1), felony murder
predicated on aggravated assault of Rodriguez (Count 2), aggravated assault by shooting
Rodriguez with a gun (Count 3), attempted murder of Flores (Count 4), aggravated assault
by shooting Flores with a gun (Count 5), and two counts of possession of a weapon during
the commission of a crime (Counts 6-7). At the conclusion of a jury trial held December
15-19, 2014, Ramirez was found guilty on all seven counts. The trial court sentenced
Ramirez to imprisonment for life without parole for Count 1; 30 years consecutive for
Count 4; 5 years for Count 6, to be served consecutively to the sentence for Count 1 and
concurrent with Count 4; and 5 years for Count 7 consecutive to Count 4. The remaining
counts were merged or vacated by operation of law. See Green v. State, 283 Ga. 126, 130
(
657 SE2d 221) (2008). On March 5, 2015, Ramirez filed a motion for new trial, which he
amended on June 6, 2016, after the appearance of new counsel. Following a hearing, the
trial court denied the motion for new trial on August 30, 2016. Ramirez filed a timely
I.
Viewed in the light most favorable to the verdicts, the evidence admitted
at trial showed that in the early morning hours of March 23, 2014, Ramirez
arrived at Las Delicias bar with his friend Fernando Resendiz and two others.
Resendiz stayed in the car texting while Ramirez took Resendiz’s .380 pistol
from the console and attempted to enter the bar. Flores, who was working as
a security guard checking identification at the door, blocked Ramirez’s entry
and asked for his identification. Ramirez first showed Flores a picture of Santa
Muerte (Holy Death) and said in Spanish, “it’s death.” Flores again asked for
Ramirez’s identification, which Ramirez then produced, showing that he was
20 years old. Flores refused Ramirez entry into the bar for being underage.
Ramirez began shouting at Flores, took a step back, pulled out a gun, and
pressed it against Flores’s chest. Flores grabbed Ramirez’s hand and the two
men wrestled for the gun, which discharged into Flores’s leg. The struggle for
the gun continued into the parking lot and the gun discharged a second time,
striking no one. Flores fell to the ground and another security guard,
Rodriguez, rushed toward Ramirez. Rodriguez tried to get the gun from
notice of appeal on September 29, 2016, and the case was docketed in this Court to the
August 2017 term and submitted for a decision on the briefs.
Ramirez, but Ramirez shot him; Rodriguez immediately collapsed. Ramirez
then shot Rodriguez a second time, killing him. After shooting Rodriguez,
Ramirez walked toward Flores, who was on his knees in the parking lot.
Ramirez nonetheless shot him in the back. Flores managed to get up and run
away, but Ramirez briefly chased him around a truck while pointing his gun at
him. Ramirez then gave up the chase and attempted (unsuccessfully) to enter
the front door of the bar before leaving the property on foot. Security cameras
at the bar captured all but the initial interaction between Ramirez and Flores,
which was blocked from view by the open door of the bar. The recording from
the security cameras was played for the jury at trial.
Resendiz, who had driven away when the gunfire began, returned to the
bar and picked up Ramirez. Two other passengers in the car testified that
Ramirez seemed excited, exclaimed that he wished he had had more bullets,
threatened the passengers’ families if they told police, and said that he was
happy about what happened because the security guard “deserved it.” Ramirez
said that his brother had been “jumped” at Las Delicias and a security guard
had left him lying there.2
2
As noted below, trial testimony showed that Ramirez’s brother had been badly beaten by
other bar patrons during a fight at Las Delicias the month before the shooting in this case.
Ramirez testified at trial and claimed that he shot Flores and Rodriguez
in self-defense. Ramirez testified that when Flores initially approached him,
Flores was in an aggressive posture and seemed angry already. Ramirez started
to back away, he said, but felt threatened by the crowd of people around him,
who were purportedly holding bottles and moving toward him. Ramirez
claimed that he moved back in the direction of Flores, who raised his hands
“like he was going to come at” Ramirez and then rushed toward Ramirez and
grabbed his left arm. Ramirez pulled out the .380 “almost without thinking,”
and Flores immediately grabbed his hand. Ramirez testified that Flores, rather
than trying to secure the gun, was pushing it against Ramirez’s chest and
saying, “You are going to see.” Ramirez claimed that he was just trying to get
away from Flores, but accidentally fired the first shot while trying to pull free.
He admitted to shooting Flores a second time, but claimed that it was because
Flores was still attacking. Ramirez also admitted that he shot Rodriguez twice,
saying that his first shot was instinctive when Rodriguez appeared as a “black
shadow” rushing toward him. According to Ramirez’s testimony, the second
shot occurred either after Rodriguez “crashed into” him, or alternatively, while
Rodriguez “was in mid-air.”
Although Ramirez does not challenge the sufficiency of the evidence
supporting his convictions, it is our practice in murder cases to review the
record and determine whether the evidence was legally sufficient under the
standard set out in Jackson v. Virginia, 443 U.S. 307 (
99 SCt 2781, 61 LE2d
560) (1979). We have done so, and we conclude that the evidence introduced
at trial and summarized above was legally sufficient to authorize a rational trier
of fact to find beyond a reasonable doubt that Ramirez was guilty of the crimes
for which he was convicted. See
id. at 319.
II.
Ramirez claims error in the trial court’s ruling excluding evidence of
other incidents of criminal activity at Las Delicias bar. He sought to introduce
police testimony about ten incidents at Las Delicias between November 2010
and April 2014, including one case of cocaine possession; several bar fights,
including instances in which other bar security guards—not Flores or
Rodriguez—tased or pepper sprayed fractious patrons; a robbery in the bar’s
restroom; a shot fired (without injury) in the parking lot after hours; and one
occasion in which Rodriguez was cited for admitting an individual into the bar
without first checking his identification. We find no error in the trial court’s
exclusion of the proffered evidence.
Ramirez argues that the evidence at issue is relevant and that it should
be assessed under the framework of cases governing Terry3 stops, in which the
fact that an area is known to have a high crime rate may be relevant in
determining whether police reasonably suspected that the defendant was
engaged in criminal activity. That contention is plainly incorrect. The
reasonableness of a police officer’s suspicion of criminal activity is a wholly
different matter from a defendant’s belief that he is in danger of being killed
or severely injured unless he uses deadly force to defend himself. The State,
for its part, counters that to the extent the violent “character” of the bar is
relevant to Ramirez’s self-defense claim, evidence of that character should be
limited to general reputation or opinion evidence under the rules governing the
admissibility of a victim’s reputation for violence in a self-defense case. See
OCGA §§ 24-4-404 (a) (2), 24-4-405 (a). The State’s analysis also fails to
provide a useful comparison. To begin, a place cannot be a victim. And the
reputation of a place is not “character evidence” subject to the same rules as
evidence of a witness’s character or propensity for violence.
3
See Terry v. Ohio, 392 U.S. 1 (
88 SCt 1868, 20 LE2d 889) (1968).
Instead, as with many evidentiary decisions under Georgia’s current
Evidence Code, determining the admissibility of the evidence of other
incidents Ramirez sets out involves the familiar process of weighing its
probative value against the prejudice, confusion, or waste of time likely to
result from admission. As a general rule, “[a]ll relevant evidence [is]
admissible.” OCGA § 24-4-402. Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence.” OCGA § 24-4-401. Even relevant evidence may be excluded,
however, “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” OCGA § 24-4-403. We review the trial court’s ruling
on the admissibility of evidence for a clear abuse of discretion. Davis v. State,
301 Ga. 397, 399 (
801 SE2d 897) (2017).
Ramirez sought to show that the dangerous, violent environment at Las
Delicias influenced his state of mind and made his extreme reaction to
perceived threats from Flores and Rodriguez reasonable under the
circumstances. See OCGA § 16-3-21 (deadly force justified only if a person
“reasonably believes that such force is necessary to prevent death or great
bodily injury to himself”). Ramirez does not contend that he knew about any
of the proffered occurrences at the time of the shooting; nevertheless, he argues
that the specific instances of criminal activity at the bar should have been
admitted to show the jury that his perception of danger at the bar was
reasonable. It is difficult to see, however, how the occurrence of events of
which Ramirez had no knowledge could be relevant to his state of mind on the
night of the shooting, or how they could have influenced his sense of
immediate danger from a bar employee checking identification at the front
door. Only three of the incidents involved either of the security guard victims,
Flores or Rodriguez: in addition to the citation for failure to check
identification, Rodriguez assisted in evicting an individual who was harassing
two bar employees on one occasion, and on another occasion, a bar customer
hit Flores on the head with a bottle. But none of the incidents shows a
propensity for violence in either of the victims. Nor do they tend to make it
more likely that Ramirez reasonably believed that deadly force was necessary
to defend himself against Flores or Rodriguez. The probative value of this
evidence would be remarkably small even if Ramirez had alleged that he was
aware of the incidents at the time of the murder. But without such an
allegation, the evidence fails to clear even the low hurdle of relevance under
Rule 401.
Moreover, to the extent that the bar’s reputation for violent incidents
influenced Ramirez’s state of mind, that reputation and its effect on Ramirez
was well established through other evidence admitted at trial. Ramirez testified
that although he had never been to Las Delicias before the night of the shooting,
he had heard that the bar was a violent place, and that gang fights, drug use,
and corrupt security guards were commonplace there. Ramirez was a member
of the Surenos gang, and he testified that he was aware that a rival gang, the
Tiny Winos, often went to Las Delicias and liked to “pick fights.” None of the
other witnesses who addressed the issue denied that the bar was a violent place,
such that evidence of specific instances of violence could be relevant for
impeachment purposes. To the contrary, Flores testified that bar fights and
patrons throwing or hitting others with bottles were frequent events. One
police detective testified that members of the Surenos and the Tiny Winos
gangs were often present at Las Delicias, and another detective testified that
Ramirez’s brother had been hospitalized after being badly beaten at the bar the
month before the shooting. Thus, even if the proffered incidents had some
marginal relevance to Ramirez’s self-defense claim, any slight probative value
was “substantially outweighed by . . . considerations of . . . waste of time [] or
needless presentation of cumulative evidence,” and the trial court acted within
its discretion in excluding the evidence. OCGA § 24-4-403.
Judgment affirmed. All the Justices concur, except Melton, P.J., and
Blackwell, J., who concur in judgment only in Division 2.
Decided March 5, 2018.
Murder. Whitfield Superior Court. Before Judge Boyett.
Micah J. Gates, for appellant.
Herbert M. Poston, Jr., District Attorney; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant
Attorney General, for appellee.
