307 Ga. 804
FINAL COPY
S19A1573. CHAVEZ v. THE STATE.
PETERSON, Justice.
Juan Rabadan Chavez appeals his convictions for malice
murder, participation in criminal street gang activity, possession of
a firearm during the commission of a felony, and possession of a
firearm by a first-offender probationer all stemming from the
shooting death of Ricardo Hernandez Ovalle.1 Chavez challenges the
sufficiency of the evidence as to his conviction for participation in
1 Ovalle was shot on July 23, 2015. On March 29, 2016, a Fulton County
grand jury indicted Chavez for malice murder, participation in criminal street
gang activity, three counts of felony murder (predicated on aggravated assault,
criminal street gang activity, and possession of a firearm by a first-offender
probationer), aggravated assault with a deadly weapon, possession of a firearm
during the commission of a felony, and possession of a firearm by a first-offender probationer. At an August 2017 trial, a jury found Chavez guilty on
all counts. The trial court on August 28, 2017, sentenced Chavez to serve life
in prison for malice murder, fifteen years consecutive for criminal street gang
activity, and five years consecutive for each of the firearm counts; the
aggravated assault merged into malice murder, and the felony murder counts
were vacated by operation of law. Chavez on September 8, 2017, filed a motion
for new trial, amended by trial counsel on November 30, 2018. The trial court
denied the motion on May 29, 2019. Chavez filed a notice of appeal on May 30,
2019, and an amended notice of appeal on June 6, 2019. The case was docketed
to this Court’s August 2019 term and orally argued on November 7, 2019.
criminal street gang activity and the felony murder count predicated
on that felony. He also argues that his lawyers at trial were
ineffective in their handling of his prior first-offender disposition
and that the trial court erred by denying his motion for a mistrial
based on the State’s failure to disclose a witness’s prior inconsistent
statement. Per our usual practice of reviewing the sufficiency of the
evidence in murder cases, we conclude that the evidence was
sufficient to sustain all but one of Chavez’s convictions; the evidence
was insufficient to sustain Chavez’s conviction for possession of a
firearm by a first-offender probationer, and we reverse that
conviction. Chavez has not shown that his trial counsel were
ineffective or that the State’s failure to disclose the alleged witness
statement violated his constitutional rights, and so we affirm his
other convictions.
The trial evidence in the light most favorable to the verdicts
showed the following. On July 23, 2015, Ovalle asked fellow
2
Westside Locos gang member Andres Duartes2 to give him a ride.
While they were out, Duartes sold someone prescription medication
at the Azalea Parks apartment complex in the Sandy Springs area
of Fulton County. As Duartes began to drive out of the complex,
Ovalle yelled out expletives toward someone and used the name
“Joker,” asked Duartes to pull over, and jumped out of the car.
Duartes heard Ovalle say, “where you from,” meaning what gang
are you from, and, “oh, s***.” Ovalle ran out of sight, at which point
Duartes heard gunshots. Police who responded to the scene found
Ovalle lying on the ground; he died from gunshot wounds.
Duartes claimed that he did not see the shooter’s face, but he
considered the shooting to be gang-related because the name “Joker”
was from a rival gang, Sox Los. Duartes also testified that Ovalle
had been shot previously by a member of Sox Los. Police determined
that Lionel Marron of Sandy Springs, who was in the Sox Los gang
with Chavez, went by “Joker.” But witnesses failed to pick Marron
2 Although both parties refer to this witness by the last name “Duarte,”
the witness spelled his own name as “Duartes” at trial.
3
out of a photo array.
Several sources, including Ovalle’s girlfriend, Dakota
Parmelle, identified “Chucky” as a possible culprit. Chavez went by
the name “Chucky.” An Azalea Parks resident who knew Chavez
testified that he saw Chavez shoot Ovalle. Other witnesses picked
Chavez out of a photo array with “50% certainty,” although one said
that the man he identified, whom he saw walking up a hill
immediately after he heard gunshots, could not have fired the shots.
Cell phone data showed that Chavez and Marron had many
phone conversations on the day of the shooting, both before and
after. Chavez called Marron at the same time as the initial 911 call
reporting the shooting, at which point Chavez was in the vicinity of
Azalea Parks and Marron was more than 15 miles away.
No ballistics evidence was found at the scene of the shooting.
Three Remington brand .38-caliber bullets were recovered from
Ovalle’s body during his autopsy; they all came from the same
firearm. Three spent shell casings and one live round found in
Chavez’s room were all .38 caliber, but none was a Remington brand.
4
A few days after the shooting, Chavez left his apartment in a
hurry with only a backpack, telling his roommate he was going out
of state. He did not return to the apartment. On March 2, 2016, more
than seven months after the shooting, he was arrested reentering
the United States at the Mexican border.
Because Chavez was charged with possession of a firearm by a
first-offender probationer, the trial court admitted evidence that
Chavez had been sentenced to two years of probation under the First
Offender Act in July 2013. The jury was presented evidence that
Chavez received that disposition after he pleaded guilty to
possession of cocaine, possession of a firearm during the commission
of a felony, driving without a license, and failure to maintain lane.
1. Chavez first argues that the evidence was insufficient to
convict him of criminal street gang activity, as well as the felony
murder count predicated on that felony. We conclude that the
evidence was sufficient to convict him of criminal street gang
activity, as well as malice murder and possession of a firearm during
5
the commission of a felony.3 But we conclude that the evidence was
insufficient to sustain Chavez’s conviction for possession of a firearm
by a first-offender probationer.
When evaluating the sufficiency of evidence, the proper
standard of review is whether a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U. S. 307, 319 (
99 SCt 2781, 61 LE2d 560) (1979). We
do not resolve conflicts in the evidence or determine the credibility
of witnesses; instead, we view the evidence in the “light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” Hayes v. State,
292 Ga.
506, 506 (
739 SE2d 313) (2013) (citation and punctuation omitted).
The jury’s resolution of these issues “adversely to the defendant does
not render the evidence insufficient.” Graham v. State,
301 Ga. 675,
677 (1) (
804 SE2d 113) (2017) (citation and punctuation omitted).
3 Having determined that the evidence was sufficient to affirm a
conviction for malice murder, Chavez’s claim that the evidence was insufficient
to support a conviction for felony murder predicated on criminal street gang
activity is moot, because the felony murder count was vacated by operation of
law. See Blackledge v. State, 299 Ga. 385, 387 (1) n.3 (
788 SE2d 353) (2016).
6
(a) Chavez was charged with violating the Street Gang Act on
the basis that, while associated with a criminal street gang, he
participated in criminal gang activity through the commission of at
least one of several crimes: murder, felony murder, aggravated
assault with a deadly weapon, and possession of a firearm during
the commission of a felony. To convict Chavez, the State had to prove
beyond a reasonable doubt the existence of a “criminal street gang,”
that Chavez was associated with the gang, that he committed one of
the offenses listed in OCGA § 16-15-3 (1), and that the commission
of the predicate offense was intended to further the interests of the
gang. See McGruder v. State, 303 Ga. 588, 591-592 (II) (
814 SE2d
293) (2018). Chavez’s sole argument as to the sufficiency of his
criminal street gang activity conviction is that the State did not
prove that Sox Los met the definition of a criminal street gang,
defined in OCGA § 16-15-3 (3) as “any organization, association, or
group of three or more persons associated in fact, whether formal or
informal, which engages in criminal gang activity as defined in”
OCGA § 16-15-3 (1). In particular, Chavez argues that the evidence
7
failed to show that the gang consisted of three or more members.
The State’s gang expert testified that he was familiar with the
presence of the Sox Los gang in Georgia, saying that it was a
“subset” of the Sureños 13 gang. He said he had “seen a few”
members of the “Sureños Sox Los gang” migrate from the west coast
to the South, but acknowledged he had not “seen many” and could
not “say [that he had seen] more than three.” He then testified that
the Sox Los gang “absolutely” has more than three members. Police
testified that Chavez was associated with the Sox Los gang, and the
State admitted multiple photos of Chavez displaying gang signs and
symbols and having tattoos representing the Sox Los gang.
We conclude that the evidence presented was sufficient for the
jury to conclude that Sox Los is a criminal street gang. Evidence that
Chavez displayed signs, symbols, and tattoos of the Sox Los gang
was itself evidence of that gang’s existence. See OCGA § 16-15-3 (3)
(“The existence of [a criminal street gang] may be established by
evidence of a common name or common identifying signs, symbols,
tattoos, graffiti, or attire or other distinguishing characteristics,
8
including, but not limited to, common activities, customs, or
behaviors.”). And the State’s expert testified that the Sox Los gang
“absolutely” has more than three members. Although Chavez points
to the expert’s testimony that he had not observed more than three
Sox Los members in the South, the statutory definition does not
require the existence of more than two members in Georgia or a
particular geographic region.4 To the extent that Chavez argues that
this testimony shows the expert lacked personal knowledge when he
testified that Sox Los had more than three members generally,
Chavez raised no such objection to this testimony. He also has not
shown that such an objection would have had merit. And even if the
4 Indeed, the definition of “criminal street gang” refers to a group that
“engages in criminal gang activity,” the definition of which explicitly includes
actions taken outside of the state of Georgia. See OCGA § 16-15-3 (1) (I), (J)
(defining “criminal gang activity” to include “the commission, attempted
commission, conspiracy to commit, or the solicitation, coercion, or intimidation
of another person to commit . . . on or after July 1, 2006 . . . [a]ny criminal
offense committed in violation of the laws of the United States or its territories,
dominions, or possessions, any of the several states, or any foreign nation
which, if committed in this state, would be considered criminal gang activity
under this Code section; and . . . [a]ny criminal offense in the State of Georgia,
any other state, or the United States that involves violence, possession of a
weapon, or use of a weapon, whether designated as a felony or not, and
regardless of the maximum sentence that could be imposed or actually was
imposed”).
9
evidence were wrongfully admitted, such evidence may be
considered in determining whether the trial evidence was sufficient
to sustain a defendant’s conviction. See Green v. State, 291 Ga. 287,
289 (1) (
728 SE2d 668) (2012).
(b) Although Chavez has not challenged the sufficiency of the
evidence as to his other convictions, we have reviewed them
according to our usual practice in murder cases. We conclude that
the evidence was legally sufficient to authorize a rational trier of fact
to find beyond a reasonable doubt that Chavez was guilty of malice
murder and possession of a firearm during the commission of a
felony. But we also conclude that the evidence was not sufficient to
support Chavez’s conviction for possession of a firearm by a first-
offender probationer.
At the time of Ovalle’s shooting, the Georgia Code provided
that “[a]ny person who is on probation as a felony first offender
pursuant to Article 3 of Chapter 8 of Title 42 . . . and who receives,
possesses, or transports any firearm commits a felony[.]” OCGA §
10
16-11-131 (b) (2014) (emphasis added).5 It also provided that “[a]ny
person placed on probation as a first offender pursuant to Article 3
of Chapter 8 of Title 42 and subsequently discharged without court
adjudication of guilt pursuant to [OCGA §] 42-8-62 shall, upon such
discharge, be relieved from the disabilities imposed by this Code
section.” OCGA § 16-11-131 (f) (2014).6 In other words, the
imposition of felony first-offender probation does not preclude the
probationer from legally possessing a firearm ever again, but only
forbids such possession during the term of the probation. And this
Court has made it clear that the “discharge” of a first-offender
probationer is automatic upon the successful completion of the terms
of the sentence; it does not require a subsequent formal recognition
of that successful completion. See State v. Mills, 268 Ga. 873 (495
5 This subsection has since been amended. See Ga. L. 2018, pp. 550, 578,
§ 4-4. But the relevant language remains unchanged.
6 OCGA § 16-11-131 (f) now reads:
Any person sentenced as a first offender pursuant to Article
3 of Chapter 8 of Title 42 or sentenced pursuant to subsection (a)
or (c) of Code Section 16-13-2 and subsequently discharged without
court adjudication of guilt as a matter of law pursuant to Code
Section 42-8-60 or 16-13-2, as applicable, shall, upon such
discharge, be relieved from the disabilities imposed by this Code
section.
11
SE2d 1) (1998) (where defendant had successfully completed his
first-offender probationary sentence at the time he allegedly
violated OCGA § 16-11-131, trial court correctly granted his motion
to dismiss). Following oral argument, the State conceded by letter
brief that Chavez’s first-offender probation expired on July 11, 2015,
prior to the July 23, 2015 date on which he was alleged to have
possessed a firearm. And the State presented no evidence that
Chavez possessed a firearm during the term of his probation and
prior to his discharge. We therefore reverse Chavez’s conviction for
possession of a firearm by a first-offender probationer.
2. Chavez next argues that his trial counsel rendered
ineffective assistance in several respects related to counsel’s failure
to stipulate to his status as a first-offender probationer. We disagree.
To prevail on a claim of ineffective assistance of counsel,
Chavez must show both that his trial counsel’s performance was
deficient and that this deficiency prejudiced his defense. Strickland
v. Washington, 466 U. S. 668, 687 (
104 SCt 2052, 80 LE2d 674)
(1984). “To establish deficient performance, an appellant must
12
overcome the strong presumption that his . . . counsel’s conduct falls
within the broad range of reasonable professional conduct and show
that his counsel performed in an objectively unreasonable way” in
the light of all of the circumstances. Smith v. State, 296 Ga. 731, 733
(2) (
770 SE2d 610) (2015) (citation and punctuation omitted). To
establish prejudice, an appellant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U. S. at 694. An appellant must prove both prongs of the
Strickland test, and if he fails to prove one prong, “it is not
incumbent upon this Court to examine the other prong.” Smith,
296
Ga. at 733 (2) (citation and punctuation omitted). In reviewing
either component of the inquiry, all factual findings by the trial
court will be affirmed unless clearly erroneous.
Id.
(a) Chavez argues that trial counsel performed deficiently by
failing to stipulate to his status as a first-offender probationer at the
time of the offense. Given that the evidence of his prior disposition
was relevant only to prove his status as a first offender, Chavez
13
argues, neither the State nor the trial court could have rejected an
offer to stipulate. And due to this failure to stipulate, Chavez argues,
the jury heard prejudicial character evidence.
Even if trial counsel could have performed deficiently in failing
to stipulate to Chavez’s status as a first-offender probationer,
however, Chavez has not shown a reasonable probability of a
different outcome but for that failure to stipulate. This Court has
held that prior convictions involving firearms and minor drug
offenses are not likely to inflame the jury’s passions in a murder
case. Moore v. State, 306 Ga. 532, 534-535 (2) (b) (
832 SE2d 384)
(2019). Chavez points to language from the United States Supreme
Court to the effect that the risk of unfair prejudice from a prior
conviction for a gun crime is “obvious.” Old Chief v. United States,
519 U. S. 172, 185 (
117 SCt 644, 136 LE2d 574) (1997). But the
Supreme Court made clear in that same case that the risk of unfair
prejudice “will vary from case to case” and that “a prior offense may
be so far removed in time or nature from the current gun charge and
any others brought with it that its potential to prejudice the
14
defendant unfairly will be minimal.” Id. at 185 & n.8.
Here, the evidence against Chavez was strong. Two witnesses
(including one who knew Chavez) identified him as the shooter,
another witness placed him at the crime scene at the time of the
murder, ammunition of the same caliber as the bullets found in the
victim’s body was located in Chavez’s bedroom, his cell phone was in
the area at the time of the murder, he initiated a flurry of phone
calls to another gang member immediately after the murder, and he
fled the state soon after the shooting. Although Chavez points out
that the trial court did not instruct the jury that it should consider
the first-offender disposition only to determine whether he was
guilty of possessing a firearm while a first-offender probationer, the
prior gun charge at issue was a mere possession offense,
unaccompanied by any violent offenses, from which the jury was
unlikely to draw an impermissible inference that Chavez had a
propensity to commit the sort of violent crimes with which he was
charged here. The State did not bring out details of the prior offenses
through testimony, and instead only entered a copy of the prior
15
disposition into evidence without comment at the close of its case.
Although the State referenced the prior disposition in its closing
argument, it is not clear, as discussed below, that the prosecutor
made the sort of improper propensity argument as suggested by
Chavez on appeal.7 Chavez has not shown a reasonable probability
of a different result had counsel offered to stipulate to his (expired)
first-offender status. See Ballard v. State, 297 Ga. 248, 252-253 (6)
(a) (
773 SE2d 254) (2015) (no prejudice shown from trial counsel’s
failure to stipulate to defendant’s convicted-felon status given that
the prior convictions were not of the nature likely to inflame the
jury’s passions and the evidence of the defendant’s guilt was
strong).8
7 The nature of the prior offenses, and the extent to which the jury heard
details of them, makes this case different from a case relied on by Chavez,
Starling v. State, 285 Ga. App. 474 (
646 SE2d 695) (2007). In Starling, the
Court of Appeals held that trial counsel was ineffective for failing to obtain a
stipulation or a limiting instruction as to the defendant’s felon status.
Id. at
479 (b). There, the prior convictions involved violence, and the jury heard
details of the offenses, including that the defendant had pleaded guilty to an
aggravated assault by using a gun — information that was highly prejudicial
to the jury’s consideration of the aggravated assault charge against the
defendant, which involved firing a gun.
Id. at 476 (a), 478-479 (b).
8 To the extent that Chavez also argues that trial counsel was deficient
16
(b) Chavez argues that trial counsel was ineffective for
failing to object to the prosecutor’s use of Chavez’s prior criminal
disposition in closing argument. In particular, the State referenced
the details of Chavez’s “certified conviction.” The prosecutor then
continued: “So not only did he possess it on the day of the incident,
but we know that he continuously had firearms because he had a
numerous of ballistics [sic] located in his bedroom.” Chavez argues
that trial counsel should have objected to the prosecutor’s erroneous
characterization of Chavez’s first-offender disposition as a
“conviction,” as well as the prosecutor’s elicitation of an improper
propensity inference by using the disposition to argue that Chavez
“continuously had firearms.”
Trial counsel testified that the use of the disposition was at
least “potentially” objectionable under OCGA § 24-4-404 (b) and that
they had no strategy in failing to object. But trial counsel’s own
assessment of their performance does not control. Kennedy v. State,
for failing to object to the admission and publication of the certified copy of his
first-offender disposition, he fails to identify any basis for such an objection in
the absence of a stipulation.
17
304 Ga. 285, 288 (2) (
818 SE2d 581) (2018). “Instead, to establish
that trial counsel was deficient, [Chavez] has to show that no
reasonable attorney would have failed to object to the prosecutor’s
argument.”
Id.
It is not clear that the prosecutor was relying on the first-
offender disposition in arguing that Chavez “continuously had
firearms”; it appears at least as likely that he was relying on the
physical evidence found in Chavez’s room. “Because the prosecutor’s
statements, in context, did not constitute a clear propensity
argument, [Chavez] has not demonstrated that no reasonable
attorney would have failed to object to those statements.” Kennedy,
304 Ga. at 289 (2).
Chavez also argues on appeal that trial counsel should have
objected to the prosecutor characterizing his first-offender
disposition as a “conviction,” given that he was not resentenced or
adjudicated guilty. It is true that we have said that “[f]irst offender
pleas are not a ‘conviction’ as understood in the Criminal Code”
because the defendant is discharged without an adjudication of
18
guilt. Williams v. State, 301 Ga. 829, 834 (5) (
804 SE2d 398) (2017);
see also Priest v. State,
261 Ga. 651, 652 (2) (
409 SE2d 657) (1991).
But it would not be unreasonable to refer to Chavez’s first-offender
disposition colloquially as a “conviction” given that he had entered a
plea of guilty, and the disposition carried negative consequences for
him and temporarily resolved the charges against him. See OCGA §
42-8-60 (a) (1) (2012) (“Upon a verdict or plea of guilty or a plea of
nolo contendere, but before an adjudication of guilt, in the case of a
defendant who has not been previously convicted of a felony, the
court may, without entering a judgment of guilt and with the
consent of the defendant . . . [d]efer further proceeding and place the
defendant on probation as provided by law[.]”).9 A reasonable
attorney might have assumed that an objection would have resulted
in the jury being given some explanation of the nature of a first-
offender disposition, including that Chavez had pleaded guilty to the
charges in question. A reasonable attorney thus might well have
9 Indeed, in his brief before this Court, Chavez refers to his first-offender
disposition as “convictions” multiple times.
19
surmised that an objection would have been of little help and
possibly could have hurt the defense by unduly focusing on Chavez’s
criminal history. Chavez has not shown deficient performance in
trial counsel’s failure to object to the remarks in question.
(c) Chavez also argues that trial counsel performed
deficiently by making an inflammatory closing argument in his
defense. Specifically, the defense stated in closing argument as
follows:
You heard all kinds of things about him being in a
gang. You see the tattoos. You see him as a little boy him
and Joker sitting there with gang signs. They were little
menaces. Throw on top of that running back and forth
across the border. They are everything, everything that is
deemed undesirable in our society right now. He has got
a conviction for possession of cocaine and he had a gun.
Bad person.
Defense counsel then explained that, despite these bad things the
jury had heard, Chavez had a constitutional right to hold the State
to a burden of proof of beyond a reasonable doubt, even if the jury
did not like him or “what he represents.” Chavez argues that this
argument exacerbated the harm caused by counsel’s failure to
stipulate to his first-offender status by focusing the jury on
20
character evidence and that, by referencing “running back and forth
across the border,” injected prejudicial facts not in evidence
regarding Chavez’s immigration status.
Defense counsel testified that he made the referenced
argument to “shock” and “embarrass” the jury about the prospect of
convicting someone who is a “scapegoat” for society’s ills and to
suggest that the State’s case was merely “character assassination,
basically trying to accuse him of one thing because he looks and
resembles someone you are told every day is a bad person.”
Defense counsel is given wide latitude in making . . .
closing arguments. This Court will not, with benefit of
hindsight, second-guess defense trial strategies therein.
Absent a strong showing that counsel’s actions were not
reasonable, we will presume that these strategies were
not deficient.
Muller v. State, 284 Ga. 70, 73 (3) (
663 SE2d 206) (2008) (citations
and punctuation omitted). Again, the inquiry into the
reasonableness of counsel’s strategic decisions is an objective one.
We cannot say it was objectively unreasonable to address in closing
the prejudicial information the jury had heard about Chavez,
reminding the jury that it could not convict him of murder simply
21
because he had gang tattoos, had traveled to Mexico, and had
previous criminal proceedings against him. Chavez has not shown
that trial counsel performed deficiently in presenting closing
argument.
3. Finally, Chavez argues that the trial court erred in
denying his motion for a mistrial after the State failed to disclose a
prior inconsistent statement by Duartes in violation of Brady v.
Maryland, 373 U. S. 83 (
83 SCt 1194, 10 LE2d 215) (1963). We
disagree.
During Duartes’s testimony at trial, he maintained that Ovalle
used the name “Joker” as he emerged from the car, and Duartes
denied telling Parmelle that the shooter went by the name “Chucky.”
But Parmelle subsequently testified that Duartes told her that the
shooter’s name was “Chucky.” The defense later moved for a mistrial
on the basis of a Brady violation in the State’s failure to disclose
Duartes’s alleged statement to Parmelle. The trial court denied the
motion.
“[T]he suppression by the prosecution of evidence favorable to
22
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U. S. at 87. This
includes the suppression of impeachment evidence that may be used
to challenge the credibility of a witness. See Giglio v. United States,
405 U. S. 150, 154-155 (
92 SCt 763, 31 LE2d 104) (1972). To succeed
on this claim, Chavez “must demonstrate that the prosecution
wilfully or inadvertently suppressed evidence favorable to [him],
either because it is exculpatory or impeaching.” Jones v. Medlin,
302
Ga. 555, 557 (
807 SE2d 849) (2017) (citation and punctuation
omitted). In addition, Chavez is entitled to a new trial only if the
evidence is “material to [his] guilt or punishment.” Turner v. United
States, __ U. S. __, __ (
137 SCt 1885, 198 LE2d 443) (2017) (citation
and punctuation omitted; emphasis in original). “[E]vidence is
‘material’ within the meaning of Brady when there is a reasonable
probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell,
556 U. S. 449,
469-470 (
129 SCt 1769, 173 LE2d 701) (2009). “A ‘reasonable
23
probability’ of a different result is one in which the suppressed
evidence undermines confidence in the outcome of the trial.” Turner,
__ U. S. at __ (citation and punctuation omitted); see also Jones, 302
Ga. at 561 (2) (same). And, in order to determine the materiality of
the suppressed evidence, we must evaluate that evidence “in the
context of the entire record.” Turner, __ U. S. at __ (citation and
punctuation omitted).
Chavez argues that the State should have disclosed Duartes’s
alleged statement to Parmelle because it impeached Duartes’s trial
testimony to the contrary. To the extent that the statement had
some impeachment value, Chavez cannot show a reasonable
probability that the result of the trial would have been different had
the State disclosed it to him. The jury actually heard the evidence of
the statement. Parmelle testified as to the statement in question,
and Chavez cross-examined her about that statement, including
whether she had ever told the police about it. And the jury was free
to credit or reject her assertions about what Duartes told her. See
Cain v. State, 306 Ga. 434, 440 (3) (
831 SE2d 788) (2019) (no showing
24
that voicemails were material given that defendant and his sister
testified to their contents).
But Chavez’s argument as to the materiality of the alleged
statement is not that he actually would have used it to impeach
Duartes’s testimony. Obviously, Chavez does not suggest that, had
the prosecution disclosed the alleged statement to him in advance of
trial, he would have impeached Duartes’s trial testimony — that
Duartes did not see the shooter’s face, and that Ovalle had identified
someone other than Chavez as the shooter — with his alleged
statement to Parmelle indicating that Chavez was the shooter.
Rather, Chavez argues that the alleged statement was material
given its inculpatory nature, arguing that the result of the
proceedings might have been different because the statement was
so harmful to him that he might have pleaded guilty instead of going
to trial. But he points to no authority for the proposition that an
impeaching statement may be material due to its inculpatory
25
nature.10 Chavez has not shown a Brady violation. See Chandler v.
State, 204 Ga. App. 816, 819-820 (2) (
421 SE2d 288) (1992) (no Brady
violation in State’s failure to disclose statement of accomplice’s
girlfriend, given the statement was primarily inculpatory in that it
corroborated evidence of accomplice’s statements to police that
appellant shot the victim, and any value as impeachment of
accomplice was not such that nondisclosure amounted to a
constitutional violation).11
Judgment affirmed in part and reversed in part. All the
Justices concur.
10 Moreover, a recommendation filed by the State on the first day of trial
indicates that, had Chavez pleaded guilty, the State would have recommended
the same sentence that he ultimately received.
11 Citing OCGA § 17-16-6, Chavez alternatively argues that “delayed pre-
trial disclosure may have enabled [him] to exclude the statements because an
inference of bad faith could easily be justified.” But he cites no authority for
the notion that failure to disclose as a means to avoid sanction under general
discovery rules for the failure to disclose evidence more promptly is itself a
Brady violation. Moreover, the State did not hide the statement at trial, but in
fact presented it through Parmelle’s testimony, and Chavez did not object
under the general discovery rules.
26
DECIDED JANUARY 13, 2020 -- RECONSIDERATION DENIED FEBRUARY
10, 2020.
Murder. Fulton Superior Court. Before Judge Schwall.
Matthew K. Winchester, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
David K. Getachew-Smith, 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, Ashleigh D. Headrick, Assistant Attorneys
General, for appellee.
27
