Ramirez v. State

FINAL COPY

                S19A1504. RAMIREZ v. THE STATE.


      WARREN, Justice.

      Juan Carlos Ramirez was convicted of felony murder and other

crimes in connection with the shooting death of Justin Acevedo.1 On

appeal, Ramirez contends that his trial counsel rendered

constitutionally ineffective assistance by withdrawing a request to

instruct the jury on mutual combat. We disagree and affirm.

      Viewed in the light most favorable to the jury’s verdicts, the



      1 The crimes occurred on July 31, 2014.    On October 16, 2014, a DeKalb
County grand jury indicted Ramirez for the malice murder of Acevedo (Count
1); felony murder predicated on the aggravated assault of Acevedo (Count 2);
aggravated assault of Acevedo (Count 3); possession of marijuana with intent
to distribute (Count 4); and possession of a firearm during the commission of a
felony (Count 5). At a trial held from June 14 to 17, 2016, the jury found
Ramirez not guilty of malice murder but guilty of the remaining counts. The
trial court sentenced Ramirez to serve life in prison for felony murder, a
concurrent ten-year sentence for possession of marijuana with intent to
distribute, and five years consecutive for possession of a firearm during the
commission of a felony. The aggravated assault count merged for sentencing
purposes. Ramirez filed a timely motion for new trial on June 30, 2016, which
was later amended through new counsel and, on April 17, 2019, denied (as
amended) after a hearing. On May 15, 2019, Ramirez filed a timely notice of
appeal, and the case was docketed in this Court for the August 2019 term and
submitted for a decision on the briefs.
evidence presented at trial showed the following. On July 31, 2014,

Ileanna Martinez and Itzel Jimenez (Acevedo’s girlfriend and also a

friend of a Sandra Boyzo, a mutual acquaintance of both Martinez

and Jimenez) exchanged a series of heated Facebook messages

regarding a dispute between Martinez and Jimenez. At the center

of the dispute was Martinez’s alleged insult of Jimenez’s friend

Boyzo, and the result of these messages was that Jimenez planned

to meet Martinez at Martinez’s apartment to fight. Martinez was at

Ramirez’s apartment while Martinez and Jimenez sent the heated

Facebook messages back and forth, and Ramirez told Martinez that

he would accompany her to her apartment “because he didn’t want

nobody to jump [her]” in the anticipated fight. Meanwhile, Jimenez,

her boyfriend Acevedo, and several of her friends (Boyzo, Aaliyah

Contreras, and Wilfredo Otero), went to Martinez’s apartment

complex together.

     When Ramirez and Martinez arrived at Martinez’s apartment

complex, they encountered the other group, whose members were

standing on the opposite side of the street. At that point, Ramirez

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told Martinez not to cross the street because the group was going to

jump her, and Ramirez pulled Martinez behind him. Ramirez then

brandished a gun. Jimenez, Boyzo, and Otero swiftly walked away,

but Acevedo and Contreras remained, and Acevedo began arguing

with Ramirez.

     There are multiple accounts about what Acevedo said to

Ramirez at that point.      Contreras testified that Acevedo told

Ramirez, “just put the gun down, it has nothing to do with you, it’s

just between her and her,” (referring to Jimenez and Martinez) and

an investigating officer testified that in an interview, Contreras told

him that Acevedo also told Ramirez, “if you’re gonna do it, just do

it.” Contreras testified that Acevedo said Ramirez “wasn’t gonna

shoot,” and Otero similarly testified that Acevedo said to Ramirez,

“you won’t shoot.” According to Martinez’s trial testimony, Acevedo

walked toward Martinez and Ramirez while shouting and then

returned to his side of the street, at which point he told Ramirez, “do

not pull that gun out if you’re not going to use it.”       And in a

statement to police, Ramirez said that “one of the guys said, I’ll come

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across the street and take that gun from you.”

     It is undisputed that in response to Acevedo’s statement or

statements, Ramirez fired, and the bullet struck Acevedo in the

chest, killing him. Except for Contreras, who claimed that the gun

was pointed “directly towards us” when Ramirez shot, the

statements of the other witnesses were consistent that Ramirez was

instead pointing the gun down toward the street when he fired, and

that the bullet ricocheted up and struck Acevedo.      The medical

examiner also testified that “the appearance of the entrance gunshot

wound on [Acevedo] plus the appearance of the bullet make me fairly

confident that this bullet hit a hard surface prior to hitting the

decedent.” And the crime scene investigator also found a “defect” in

the street, potentially caused by a bullet striking the pavement

between where Ramirez and Acevedo had been standing.            The

distance between where Ramirez and Acevedo had been standing

was about 50-55 feet.

     After the shooting, Ramirez and Martinez fled, and Ramirez

gave the gun to Martinez and told her to put it in his apartment.

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When executing a search warrant on Ramirez’s apartment, police

found the gun hidden in a toilet tank, as well as marijuana and a

digital scale, prompting Ramirez’s admission that he sold marijuana

to his friends. The GBI determined that the bullet recovered from

Acevedo’s body was fired from the gun found in Ramirez’s

apartment.

     Ramirez does not contest the legal sufficiency of the evidence

supporting his convictions. Nevertheless, in accordance with this

Court’s general practice in murder cases, we have reviewed the

record and conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial and summarized

above was sufficient to authorize a rational jury to find Ramirez

guilty beyond a reasonable doubt of the crimes for which he was

convicted. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979).

     At trial, the jury was charged on justification, including self-

defense, as well as voluntary and involuntary manslaughter.

Ramirez   contends,    however,       that   his   trial   counsel   was

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constitutionally ineffective for withdrawing a request to charge the

jury on mutual combat.      For the reasons explained below, 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. Strickland v. Washington, 

(

, 80 LE2d 674) (1984); Wesley v. State, 

 (

) (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,

 (

) (2013); see also Strickland, 

. This requires a defendant to overcome the “strong

presumption” that trial counsel’s performance was adequate.

Marshall v. State, 

 (

) (2015) (citation

and punctuation omitted). To carry the burden of overcoming this

presumption, a defendant “must show that no reasonable lawyer

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would have done what his lawyer did, or would have failed to do

what his lawyer did not.” Davis v. State, 

 (

) (2016). “In particular, ‘decisions regarding trial tactics and

strategy may form the basis for an ineffectiveness claim only if they

were so patently unreasonable that no competent attorney would

have followed such a course.’” 

 (citation omitted). 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. Strickland, 

. “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, 

 (

) (2010). We conclude that Ramirez has

failed to show that his trial counsel’s withdrawal of his request to

charge on mutual combat was deficient.

     To authorize a jury instruction, there need only be slight

evidence at trial supporting the theory of the charge.      State v.

Newman, 

 (

) (2019). “‘Mutual

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combat occurs when there is combat between two persons as a result

of a sudden quarrel or such circumstances as indicate a purpose,

willingness, and intent on the part of both to engage mutually in a

fight.’” Carruth v. State, 

 (

) (2012)

(quoting Suggested Pattern Jury Instructions, Vol. II: Criminal

Cases (4th ed. 2007), § 2.10.43) (if the jury “find[s] that there was a

mutual intention on the part of both the deceased and the defendant

to enter into a fight or mutual combat and that under these

circumstances the defendant killed the deceased, then ordinarily

such killing would be voluntary manslaughter” instead of murder)).

And it is well settled that “decisions as to which jury charges will be

requested and when they will be requested fall within the realm of

trial tactics and strategy. They provide no grounds for a new trial

unless such tactical decisions are so patently unreasonable that no

competent attorney would have chosen them.” State v. Mobley, 

 (

) (2015) (citation and punctuation omitted);

see also Herring v. State, 

 (

) (2003).

     At the hearing on Ramirez’s motion for new trial, Ramirez’s

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counsel agreed that “if the evidence supported mutual combat,

[there would not] have been any reason to withdraw that charge.”

Ramirez contends that this testimony demonstrates that his trial

counsel had no strategy for withdrawing his request to charge on

mutual combat.     But this contention is unavailing because, as

discussed below, the evidence did not support a charge on mutual

combat.

     First, Ramirez argues that when he brought a gun to a

proposed fistfight, Acevedo did not withdraw from the confrontation,

but instead persisted in daring and taunting Ramirez — even

threatening to seize Ramirez’s gun by force — and that this

communicated Acevedo’s intent to engage in combat — an invitation

that Ramirez accepted by firing his gun. We disagree. None of the

evidence offered about Acevedo’s comments to Ramirez before

Ramirez shot Acevedo — “just put the gun down, it has nothing to

do with you, it’s just between her and her”; “if you’re gonna do it,

just do it”; “you won’t shoot”; “do not pull that gun out if you’re not

going to use it”; and “I’ll come across the street and take that gun

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from you” — indicated that Ramirez and Acevedo were engaged in

mutual combat. We have held that a mutual combat charge is not

warranted when there is “no provocation other than the use of

words, threats, menaces, or contemptuous gestures.” Tepanca v.

State, 

 (

) (2015) (citation and

punctuation omitted) (evidence that unarmed victim repeatedly

threatened to “kick [the defendant’s] a**” and walked toward

defendant while appearing to reach for something in his own pocket

did not entitle defendant to a mutual combat charge).2 Similarly,


      2 Ramirez contends that the rule stated in Tepanca — that mutual
combat does not apply where a victim provided “no provocation other than the
use of words, threats, menaces, or contemptuous gestures” — is dicta and
should no longer be the law because it originates from case law interpreting a
former version of the voluntary manslaughter statute that included the
express provision that “provocation by words, threats, menaces or
contemptuous gestures shall in no case be sufficient to free the person killing
from the guilt and crime of murder,” former 

, and this
provision is no longer included in Georgia’s voluntary manslaughter statute.
See OCGA § 16-5-2. But we have already held that this long-standing rule,
“while not made an express provision of [subsequent voluntary manslaughter
statutes], remains a part of the current law of voluntary manslaughter.”
Brooks v. State, 

 (

) (1982). And Tepanca makes
clear that the rule applies in the specific context of mutual combat. See 297
Ga. at 50. In any event, even assuming for the sake of argument that we were
to agree with Ramirez, that would not mean that Ramirez’s counsel performed
deficiently because “in making litigation decisions, there is no general duty on
the part of defense counsel to anticipate changes in the law.” Rickman v. State,

 (

) (2003) (citation and punctuation omitted).
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evidence of arguing between a defendant and victim is not itself

evidence of mutual combat. Moore v. State, 

, __ (__ SE2d

__) (2019) (citing Johnson v. State, 

 (

)

(2017)); see also Russell v. State, 

 (

) (2018) (evidence that included defendant’s statement to

responding officer that “I had to shoot him [the victim], they [sic]

were trying to fight me,” was insufficient to warrant jury charge on

mutual combat where there was evidence that the defendant and

the victim had been “playfully shadowbox[ing] and wrestl[ing]” each

other before the victim put the defendant in a “choke hold,” which

made the defendant angry). Accordingly, in Barnes v. State, we

concluded that counsel was not deficient in failing to secure a charge

on mutual combat because the evidence, which included the victim

“calling to” the defendant and a physical altercation between them,

“did not support instructing the jury on mutual combat.” 

 (

) (2019).

     Second, there is no evidence—or even any contention—that

Acevedo was armed with a weapon, let alone a deadly weapon,

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during his encounter with Ramirez, and although

     this Court has recognized some inconsistency in the case
     law with regard to whether both alleged combatants are
     required to have deadly weapons in order for the jury to
     be charged on mutual combat . . . there are numerous
     precedents holding that both combatants must be so
     armed.

Watson v. State, 

 (

) (2016) (citing White

v. State, 

 (

) (2010); Joyner v. State,

 (

) (1951)); see also Mobley, 

.   In short, evidence that one person drew a gun on an

unarmed person, and then shot the unarmed person in response to

verbal taunts, generally cannot constitute evidence that the two

people engaged in mutual combat. See, e.g., Johnson, 

(“There is no evidence here that Johnson and the victim mutually

agreed to fight, and evidence of an argument over money that turned

violent is not sufficient to show mutual combat.”); Watson v. State,

 (

) (2016) (mutual combat charge not

warranted because “there was no evidence that Brown ever

possessed a deadly weapon during his encounter with Appellant,”


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and “according to Appellant, although he and Brown argued about

the money Appellant wanted back, Brown never said that he wanted

to fight, and Brown rushed toward Appellant to try to take away the

shotgun that Appellant had retrieved”).

     Under these circumstances, Ramirez has failed to show any

evidence warranting a charge of mutual combat. He therefore has

failed to carry his burden of showing that his trial counsel’s

withdrawal of his request to charge on mutual combat was

constitutionally deficient. See, e.g., Bannister v. State, 

 (

) (2019) (trial counsel not ineffective in

withdrawing request to charge on mutual combat because no

evidence supported that charge); Barnes, 

 (“Trial

counsel cannot be faulted for failing to request a jury charge that

was not authorized by the evidence.” (citation and punctuation

omitted)).   Ramirez’s claim of ineffective assistance of counsel

therefore fails.

     Judgment affirmed. All the Justices concur.



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                    DECIDED DECEMBER 23, 2019.
      Murder. DeKalb Superior Court. Before Judge Johnson.
      Gerard B. Kleinrock, for appellant.
      Sherry Boston, District Attorney, Emily K. Richardson, Lenny
I. Krick, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Mark S.

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Lindemann, Assistant Attorney General, for appellee.




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