Reyes v. State

FINAL COPY

                  S20A0780. REYES v. THE STATE.


      BETHEL, Justice.

      A Gwinnett County jury found Herminio Nicolas Reyes guilty

of malice murder and other offenses in connection with the stabbing

death of Sadot Ozuna-Carmona.1 Reyes appeals, arguing that the

evidence was insufficient to support the jury’s verdict on the malice

murder count, that the trial court erred by admitting certain

evidence pursuant to the “residual” exception to the hearsay rule,

and that his trial counsel provided ineffective assistance in several




      1The crimes occurred on August 1, 2004. Reyes was indicted by a
Gwinnett County grand jury on April 11, 2018, for malice murder, felony
murder, and aggravated assault. At a jury trial held from October 8 to 11, 2018,
Reyes was found guilty on all counts. On October 16, 2018, the trial court
sentenced Reyes to a term of life imprisonment for malice murder. The felony
murder count was vacated by operation of law, and the aggravated assault
count merged with the malice murder conviction for sentencing. Reyes filed a
motion for new trial through trial counsel on October 19, 2018, which he
subsequently amended twice through new counsel. The trial court held a
hearing on the motion, as amended, on June 6, 2019, and it denied the motion
on October 11, 2019. Reyes filed a notice of appeal on November 8, 2019. His
appeal was docketed to the April 2020 term of this Court and was orally argued
on May 20, 2020.
regards. Finding no error, we affirm.

     1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. In July 2004,

Reyes was living in an upstairs two-bedroom apartment in Gwinnett

County with his girlfriend, Sadot Ozuna-Carmona. The apartment

was leased in both of their names. Several other people lived in the

apartment, including members of Ozuna-Carmona’s extended

family and three of her friends.

     On July 31, 2004, a birthday party was held at the apartment

for the wife of Ozuna-Carmona’s nephew. The party began around

8:00 p.m. Numerous members of Ozuna-Carmona’s family attended.

During the party, Reyes and Ozuna-Carmona began arguing. Reyes

came out of one of the apartment’s bedrooms, and Ozuna-Carmona

came up behind Reyes and hit him over the head with a beer bottle,

which caused the bottle to break and caused Reyes to be upset. After

their argument, Reyes went downstairs to talk to another family

member and later came back upstairs around 9:00 p.m. He would

not talk to anyone at the party, and he was described as acting
“serious.” Around 11:00 p.m., Ozuna-Carmona packed up Reyes’

belongings, put his suitcases in the living room, and told him to

leave. Reyes then grabbed his suitcases and began walking toward

the parking lot. He put the suitcases in the trunk of a car that

belonged to Ozuna-Carmona and left the apartment complex in that

car around midnight. Later that night, he returned to the complex

and spoke with a member of Ozuna-Carmona’s family in the parking

lot.

       When Reyes returned to the complex, Ozuna-Carmona was in

her bedroom. She later came into the living room, cleaned up some

broken glass, and then returned to her room. Later, while dressed

in her nightgown, she came back into the living room and told

everyone at the party that she was going to bed. She then went back

to her room around 1:00 a.m.

       Around the same time, Nelson Garcia-Ozuna (Ozuna-

Carmona’s nephew who also lived at the apartment with his wife

and son), went to his bedroom where his wife was already asleep,

and went to sleep. At that time, Nelson saw three other family
members in the apartment’s living room. At trial, he testified that,

after he went to bed, he did not hear any screams or cries for help.

     The next morning, Nelson’s uncle came to the apartment.

Nelson and his uncle went to the grocery store and returned to the

apartment around 9:00 a.m. Nelson had not seen Ozuna-Carmona

that morning. Nelson’s son repeatedly knocked on Ozuna-Carmona’s

locked bedroom door, but he did not receive an answer. Nelson

became concerned. Nelson and another family member were

eventually able to pry the door open, and once inside the bedroom,

they found Ozuna-Carmona lying on the bed covered in blankets.

She appeared to be dead.

     The police were called, and officers and an investigator from

the medical examiner’s office responded to the apartment. Ozuna-

Carmona was found lying face-up in the bed with her hands resting

at her shoulders. Her feet were resting on the wall beside the bed

(the side of which sat flush against that wall), and it appeared to the

crime scene investigators as though her feet and legs had been lifted

off the floor. Ozuna-Carmona was wearing only a tanktop and had
been covered with a blanket from the chest down. A knife was lying

next to her on the bed. Ozuna-Carmona’s chest, arms, and head were

covered in blood, and she was cool to the touch. She had suffered

stab wounds to the base of her neck, the left side of her chest, and

her upper lip. Various items of her clothing, some of which had

suspected blood on them, were located in the bedroom. The blanket

and one of the pillows on the bed appeared to have defects caused by

the knife. An examination of the bedroom revealed the possible

presence of blood and body tissue in several locations on the walls.

There was no suspected blood found anywhere else in the

apartment. Jewelry and money appeared to be missing from the

bedroom. Ozuna-Carmona’s car, to which Reyes had a key, was gone

and was never seen again after that night.

     Ozuna-Carmona’s cause of death was later determined to be

stab wounds to the neck and chest, consistent with having been

inflicted by a knife. The manner of her death was homicide.

     When police arrived at the apartment, everyone who was there

had been at the party the night before. After members of Ozuna-
Carmona’s family were interviewed, police obtained an arrest

warrant for Reyes. Attempts to locate Reyes were unsuccessful for

over a decade. No member of Ozuna-Carmona’s family saw Reyes

again until his trial.

     During an autopsy of Ozuna-Carmona conducted the day after

her body was discovered, the medical examiner collected a

bloodstain card as well as rectal and vaginal swabbings. The GBI

later collected blood samples from the knife that had been used to

stab Ozuna-Carmona. The bloodstain card and swabbings were

submitted to the GBI for analysis. In December 2006, a male DNA

profile was obtained from the vaginal swab. A mixture of Ozuna-

Carmona’s DNA and the same male’s DNA was also obtained from

the rectal swab. The male profile was placed into the computer

database for the national Combined DNA Index System (CODIS). In

July 2016, that profile was found to match a DNA profile for Reyes

that had been uploaded into CODIS.

     Based on the “hit” in CODIS, Reyes was located in California.

A Gwinnett County detective and an investigator from the district
attorney’s office obtained a search warrant to take a sample of

Reyes’ DNA. They traveled to California and obtained a reference

sample of his DNA. The male profile DNA deduced from the vaginal

and rectal swabs taken at Ozuna-Carmona’s autopsy was found to

match Reyes’ DNA. Swabbings from the handle of the knife used to

stab Ozuna-Carmona also contained Reyes’ DNA.

     At trial, Nelson testified that Reyes and Ozuna-Carmona had

argued on occasions prior to Ozuna-Carmona’s death. Their fighting

was both verbal and physical, and when they fought, Reyes would

often leave but come back the next day. Ozuna-Carmona told Nelson

three times that Reyes had threatened to kill her, the last of which

was about a week before her death. Another time, Nelson heard

Reyes threaten to kill Ozuna-Carmona. Nelson had also told Ozuna-

Carmona that she needed to leave Reyes because of their fights.

About a month before she was killed, Ozuna-Carmona bought a

knife at a yard sale. That same knife was found beside her body.

According to Nelson, Reyes was aware that Ozuna-Carmona kept

the knife under her bed. Only Ozuna-Carmona and Reyes had keys
to the bedroom door.

     The jury also heard testimony from Angelica Martinez. She

met Reyes at the end of 2004 in Mexico, and the two married in 2005.

They moved to California in 2006. Martinez testified about two

incidents in which Reyes had been physically violent toward her. In

the first incident, Reyes threw Martinez to the ground and kicked

her after she tried to stop him from leaving their apartment. In the

second incident, Martinez told Reyes that she wanted a divorce. She

then left the room and went to the bathroom. Reyes followed her

inside, grabbed her by the hair and neck, and tried to hit her head

against the toilet tank.

     Reyes argues that the evidence was insufficient to support the

jury’s guilty verdict on the malice murder charge because the

evidence presented by the State was entirely circumstantial and

because the State failed to exclude every other possibility besides

his guilt. We disagree.

     When evaluating the sufficiency of evidence as a matter of

federal due process under the Fourteenth Amendment to the United
States Constitution, 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, 

 (III) (B)

(

, 61 LE2d 560) (1979). This Court views 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.” (Citation

and punctuation omitted.) Hayes v. State, 

 (

) (2013).

     Further, as a matter of Georgia statutory law, “[t]o warrant a

conviction on circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every

other reasonable hypothesis save that of the guilt of the accused.”

OCGA § 24-14-6. Whether alternative hypotheses are reasonable,

however, is usually a question for the jury, as this Court will not

disturb the jury’s finding unless it is insufficient as a matter of law.

See Graves v. State, 

 (1) (

) (2019).

     Here, the evidence showed that Reyes and Ozuna-Carmona

engaged in an argument on the evening of July 31, 2004, as they had
done on previous occasions. Testimony established that some of their

prior confrontations had been physical and that Reyes had

threatened to kill Ozuna-Carmona. In their prior confrontations,

Reyes had left the apartment but eventually returned.

     The evidence also showed that Reyes had a key to Ozuna-

Carmona’s bedroom and knew that she kept a knife under her bed.

Reyes also had a key to her car, which he drove the night of Ozuna-

Carmona’s death and which was never seen again after Ozuna-

Carmona’s body was discovered by her family. Reyes was never seen

by any members of Ozuna-Carmona’s family again until his trial,

and the evidence established that he fled to Mexico before eventually

settling in California. His DNA was discovered on the murder

weapon and in DNA samples taken from Ozuna-Carmona’s body

during her autopsy. The testimony of Reyes’ wife indicated that he

had also been violent toward her.

     At trial, Reyes put forward the theory that his DNA was left on

the knife and in Ozuna-Carmona’s body other than in connection

with her death. Specifically, Reyes argued that both were the result
of Reyes’ sexual relationship with Ozuna-Carmona leading up to her

death and the fact that the knife had been kept in the bedroom they

shared. However, the evidence presented at trial, though

circumstantial, established each element of the offense of malice

murder and authorized the jury to reject this theory. The evidence

also authorized the jury to reject the theory Reyes asserts on appeal

that Ozuna-Carmona was killed outside her apartment with her

own knife and then carried back to the apartment where the

perpetrator staged her room to appear that she had been killed

there. Accordingly, when viewed in the light most favorable to the

verdicts, the evidence presented at trial and summarized above was

sufficient to support Reyes’ conviction for malice murder as a matter

of due process and under OCGA § 24-14-6. See Frazier v. State, 

 (2) (b) (

) (2020). See also Brown v. State,

 (1) (b) (

) (2017) (“It was for the jury

to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.” (citation and

punctuation omitted)).
     2. Reyes argues that the trial court erred by admitting

statements made to Nelson by Ozuna-Carmona regarding her

relationship with Reyes. We disagree.

     In the first of the statements at issue, Ozuna-Carmona told

Nelson that she had once told Reyes to leave the apartment, that he

refused, and that he threatened her. In a second statement, Ozuna-

Carmona told Nelson that Reyes had threatened to kill her on

multiple occasions and that she and Reyes had fought with each

other. In the third statement, Ozuna-Carmona told Nelson that she

had a knife and that she believed Reyes knew where she kept it.

Ozuna-Carmona made this series of statements to Nelson in the two

months before her death. Following a hearing, the trial court

admitted each of these statements, over Reyes’ objections, pursuant

to the “residual” hearsay exception set forth in OCGA § 24-8-807,

which states in relevant part:

           A statement not specifically covered by any law but
     having equivalent circumstantial guarantees of
     trustworthiness shall not be excluded by the hearsay rule,
     if the court determines that:
                (1) The statement is offered as evidence of a
          material fact;
               (2) The statement is more probative on the
          point for which it is offered than any other evidence
          which the proponent can procure through
          reasonable efforts; and
               (3) The general purposes of the rules of
          evidence and the interests of justice will best be
          served by admission of the statement into evidence.
          ...

     The State offered the statements at issue to show the history

of abuse and difficulties between Reyes and Ozuna-Carmona and to

show that Reyes was aware that Ozuna-Carmona had a knife and

that she kept it in the bedroom they shared. Reyes does not argue

that the statements were not offered as evidence of a material fact

or that the State, through reasonable efforts, could have procured

more probative evidence on these points. Moreover, Reyes has not

argued that another exception to the hearsay rule applied to the

statements at issue. Instead, Reyes argues that the trial court’s

ruling to admit the evidence constituted an abuse of discretion

because, even though Reyes’ trial took place after January 1, 2013,

the court applied case law interpreting the “necessity” exception to

the hearsay rule in Georgia’s former Evidence Code. Reyes also
attacks the trial court’s determination that the statements at issue

had “equivalent circumstantial guaranties of trustworthiness”

sufficient to admit them. We consider these arguments in turn.

     (a) In ruling upon Reyes’ claim in his motion for new trial that

the statements at issue here should not have been admitted

pursuant to OCGA § 24-8-807, the trial court referred to this Court’s

decision in Williams v. State, 

 (2) n.2 (

)

(2016), which applied the “necessity” exception to the hearsay rule

set forth in former OCGA § 24-3-1 (b). That exception was not

carried over into the current Evidence Code. While eliminating the

“necessity” exception, the General Assembly modeled the current

version of OCGA § 24-8-807, which took effect on January 1, 2013,

and applies to all trials conducted after that date, including the trial

in this case, on Rule 807 of the Federal Rules of Evidence. See State

v. Holmes, 

 (2) (a) (

) (2018).

     As we have noted many times since the enactment of the

current Evidence Code, when Georgia courts consider the meaning

of provisions of the Evidence Code that were borrowed from the
Federal Rules of Evidence, they are guided by the “decisions of the

federal appeals courts construing and applying the Federal Rules,

especially the decisions of the Eleventh Circuit.” (Citation and

punctuation omitted.) Jacobs v. State, 

 (2) (

) (2018). Cases decided under the “necessity” exception to

the hearsay rule in Georgia’s former Evidence Code are thus not

applicable to the interpretation of OCGA § 24-8-807 and should not

be relied on by trial courts in determining whether to admit

evidence. Holmes, 

 (2) (a).

      However, despite its citation to Williams, the trial court’s order

denying Reyes’ motion for new trial on this ground relied primarily

on Jacobs, a decision of this Court setting forth the appropriate

factors for the trial court to consider in determining whether to

admit evidence under OCGA § 24-8-807.2 Because the trial court



      2 The transcripts of the hearings as to whether the statements at issue

should be admitted pursuant to OCGA § 24-8-807 indicate that the trial court
was aware that Williams construed the former Evidence Code but that the trial
court thought Williams gave some guidance to the court as to the factors it
could consider in determining trustworthiness. Later in the hearing, however,
the trial court indicated to the parties its belief that “Jacobs is the best case”
ultimately applied the appropriate evidentiary standard despite its

citation to a case construing the former Evidence Code, it is

unnecessary for us to vacate the trial court’s denial of Reyes’ motion

for new trial on this ground. Compare Holmes, 

 (2) (a)

(where trial court does not apply the proper evidentiary standard in

analyzing admissibility of evidence under OCGA § 24-8-807, remedy

is to vacate order, remand the case, and direct the trial court to apply

the correct standard).

      (b) We now consider whether the trial court abused its

discretion by admitting the statements at issue pursuant to the

residual exception. Tyner v. State, 

 (2) (

) (2019) (admission of evidence pursuant to OCGA § 24-8-807

reviewed for abuse of discretion). This exception applies

      only when certain exceptional guarantees of
      trustworthiness exist and when high degrees of
      probativeness and necessity are present. Such guarantees
      must be equivalent to cross-examined former testimony,
      statements under a belief of impending death, statements
      against interest, and statements of personal or family
      history. These categories of hearsay have attributes of

it had to work with. The trial court later referred to the Jacobs case regarding
the trustworthiness of statements made in regard to domestic violence.
     trustworthiness not possessed by the general run of
     hearsay statements that tip the balance in favor of
     introducing the information if the declarant is
     unavailable to testify. And they are all considered
     sufficiently trustworthy not because of the credibility of
     the witness reporting them in court, but because of the
     circumstances under which they were originally made.

(Citations and punctuation omitted.) Jacobs, 

 (2).

“[B]ecause the residual exception applies only to statements not

specifically covered by any law, trial courts should consider whether

a specific exception to the hearsay rule applies before applying

[OCGA § 24-8-807].” (Citation, punctuation and emphasis omitted.)

State v. Hamilton, 

 (3) (b) n. 10 (

)

(2020). A trial court should consider the totality of the circumstances

in determining whether to admit evidence pursuant to OCGA § 24-

8-807. Tanner v. State, 

 (1) (

)

(2017).

     Here, the trial court determined that there were a number of

factors that weighed in favor of finding that the statements made by

Ozuna-Carmona to Nelson were trustworthy. It noted that the

statements concerned violence and abuse, that Ozuna-Carmona had
no motive to fabricate any of the statements, and that she had made

them to Nelson shortly before her death. The trial court also took

particular note of the fact that Nelson and Ozuna-Carmona were

close relatives and that they had been residing in the same

apartment for several months when the statements were made. The

trial court based this determination on Nelson’s proffered testimony,

in which he indicated that he and Ozuna-Carmona had a close

relationship in which they regularly shared with each other what

was happening in their lives. Additionally, Nelson had actually

witnessed fights and arguments between Ozuna-Carmona and

Reyes (including the argument between them the night Ozuna-

Carmona was killed) and had heard Reyes threaten Ozuna-

Carmona on one occasion. Because each of these factors support a

determination    that    there   were    exceptional   guaranties     of

trustworthiness regarding the making of these statements, we see

no abuse of the trial court’s discretion in permitting Nelson to testify

to Ozuna-Carmona’s statements to him. See Tyner, 

(2) (no abuse of discretion where statement was made in the context
of close family relationship and where declarant had no motive to

lie); Jacobs, 

 (2) (no abuse of discretion where

statements made to close friends concerned history of threats and

violence between domestic partners). See also Holmes, 

 (2) (a) (“This Court is particularly hesitant to overturn a trial

court’s admissibility ruling under the residual hearsay exception

absent a definite and firm conviction that the court made a clear

error of judgment in the conclusion it reached based upon a weighing

of the relevant factors.” (citation and punctuation omitted)). This

enumeration of error therefore fails.

     3. Reyes also argues that his trial counsel provided ineffective

assistance by failing to move to suppress the DNA sample collected

from Reyes in California pursuant to a search warrant and by failing

to present exculpatory and impeachment evidence from the

interview that Nelson gave to police the day after Ozuna-Carmona

was killed. To prevail on these claims, Reyes

     has the burden of proving both that the performance of
     his lawyer was professionally deficient and that he was
     prejudiced as a result. To prove deficient performance,
     [Reyes] must show that his trial counsel acted or failed to
     act in an objectively unreasonable way, considering all of
     the circumstances and in light of prevailing professional
     norms. To prove resulting prejudice, [Reyes] must show a
     reasonable probability that, but for counsel’s deficiency,
     the result of the trial would have been different. In
     examining an ineffectiveness claim, a court need not
     address both components of the inquiry if the defendant
     makes an insufficient showing on one.

(Citation and punctuation omitted.) Stuckey v. State, 

 (2) (

) (2017) (citing Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984)). “A strong

presumption exists that counsel’s conduct falls within the broad

range of professional conduct.” (Citation and punctuation omitted.)

Ford v. State, 

 (8) (

) (2016). We

consider the two claims of ineffective assistance in turn.

     (a) Reyes first argues that his trial counsel performed

deficiently by failing to file a motion to suppress the DNA evidence

collected from Reyes. We disagree.

     After learning in 2016 that Reyes was incarcerated in

California, Gwinnett County police obtained a search warrant in

Santa Clara County, California in order to take a DNA sample from
him that could be matched against DNA taken from the crime scene.

The warrant was issued by a judge in that county to a Gwinnett

County police officer who then obtained the DNA sample from

Reyes. The officer then returned the DNA sample to the Georgia

Bureau of Investigation. The GBI later determined that DNA

evidence taken from the crime scene (which included semen found

inside Ozuna-Carmona’s body and skin cells on the knife that had

been used to stab her) matched the sample taken from Reyes. Reyes

was later extradited to Georgia.

     Reyes argues that his trial counsel should have moved to

suppress this DNA sample collected from him in California and that

a motion to suppress would have been successful because the process

by which it was obtained violated several provisions of California

law relative to the issuance, execution, and return of search

warrants. However, even assuming that Reyes would have been

successful in suppressing the DNA sample obtained from him in

California, he has still failed to show that his counsel performed

deficiently by failing to move to suppress that evidence. That is
because he has failed to show that no reasonable attorney would

have decided, as a matter of trial strategy, to forgo moving to

suppress the DNA evidence under the circumstances of this case.

     Here, Reyes’ counsel, who previously served as a prosecutor for

25 years, testified at the hearing on Reyes’ motion for new trial that,

based on his experience, even if he had successfully suppressed the

results of the California search, the State would simply have

obtained a new search warrant for Reyes, obtained a new DNA

sample from him, and matched it to the DNA found at the crime

scene. Counsel also determined that, even though the evidence

showed that Reyes’ DNA matched the DNA found at the crime scene,

counsel could actually use that fact to attack the State’s case by

showing that the DNA evidence did not actually prove that Reyes

killed Ozuna-Carmona and that there were other reasonable

explanations for its presence. Counsel thus elected not to move to

suppress the DNA sample taken from Reyes but to instead pursue a

defense strategy that embraced the DNA evidence while challenging

the State’s theory as to why Reyes’ DNA was at the crime scene.
Specifically, counsel argued to the jury that because Reyes and

Ozuna-Carmona shared the bedroom in which Ozuna-Carmona kept

the knife and because they had been in an ongoing sexual

relationship, the presence of Reyes’ DNA at the crime scene could be

explained other than by the theory that he killed Ozuna-Carmona.

Reyes’ counsel also elicited testimony from the State’s DNA expert

to show that, in light of his relationship to Ozuna-Carmona and his

residence in the apartment, the mere presence of Reyes’ DNA at the

crime scene did not prove that he committed the crimes. Counsel

testified at the hearing on the motion for new trial that he believed

his explanation for the DNA evidence would undermine the State’s

claims as to why the DNA was found at the crime scene and that, in

light of the State’s burden of proof, this would be sufficient to acquit

Reyes. He further testified that it was his experience that the jury

would find this explanation to be plausible.

     In light of the foregoing, we cannot say that the strategy

pursued by Reyes’ trial counsel was unreasonable. Counsel could

reasonably determine that a motion to suppress would not
ultimately have succeeded in excluding evidence that Reyes’ DNA

matched the DNA samples taken from the crime scene, as it seems

likely that, as counsel suggested, the State would have simply

sought and executed a new warrant for the collection of a new DNA

sample from Reyes had the first sample been suppressed. Reyes has

thus failed to “make a strong showing that the damaging evidence

would have been suppressed had counsel made the motion.”

(Citation and punctuation omitted.) Mosley v. State, 

 (4) (a) (

) (2020).

     Moreover, “[t]rial tactics and strategy, no matter how mistaken

in hindsight, are almost never adequate grounds for finding trial

counsel ineffective unless they are so patently unreasonable that no

competent attorney would have chosen them.” (Citation and

punctuation omitted.) McNair v. State, 

 (2) (b) (

) (2014). Here, even assuming that trial counsel might have

ultimately been successful in suppressing the DNA sample taken

from Reyes in California, as a matter of trial strategy, it was not

patently unreasonable for trial counsel to determine that the best
defense strategy in this case was for Reyes to forgo a motion to

suppress, welcome the admission of the DNA evidence, offer a

plausible explanation for the presence of Reyes’ DNA at the crime

scene, and refute claims made by the State as to how that evidence

tied Reyes to Ozuna-Carmona’s death. See Gomez v. State, 

 (6) (a) (

) (2017) (no deficient performance

where counsel could reasonably determine that best strategy was to

forgo objection to certain testimony and instead use it to challenge

the State’s theory of the case); Aikens v. State, 

 (3)

(

) (2015) (no deficient performance where trial counsel

failed to object to certain testimony that was ultimately beneficial to

defendant because it showed that he had no motive to commit the

charged offenses). This claim of ineffective assistance therefore fails.

     (b) Reyes also argues that his trial counsel performed

deficiently by not using statements given by Nelson to police

investigators the day after Ozuna-Carmona’s death to impeach his

proffered testimony in regard to the admission of Ozuna-Carmona’s

statements under OCGA § 24-4-807 and to attack his trial
testimony. We disagree.

     As noted above, during Reyes’ trial, the trial court held a

hearing as to whether it should admit, pursuant to OCGA § 24-8-

807, certain statements that Ozuna-Carmona made to Nelson

regarding her relationship with Reyes. After Nelson described to the

trial court what Ozuna-Carmona had told him and what he had

witnessed, he was cross-examined by Reyes’ trial counsel. During

that cross-examination, Nelson testified that he had given a

statement to police the day after Ozuna-Carmona’s death in 2004.

Nelson testified that he told the police that Ozuna-Carmona and

Reyes would argue but that he did not tell the police that Reyes had

threatened Ozuna-Carmona. The State provided the trial court with

an audio recording of the 2004 interview, which the court listened to

after the hearing adjourned. The following morning, the trial court

indicated to the parties that little of the recording was “intelligible”

and that it could not hear that Nelson had been asked “those

questions.” Reyes’ trial counsel later argued to the trial court that

Ozuna-Carmona’s alleged statements to Nelson should be excluded
because Nelson said nothing to the police in 2004 about any history

of threats and violence between Ozuna-Carmona and Reyes other

than the argument they had the night of Ozuna-Carmona’s death.

The trial court ultimately ruled that the statements were admissible

pursuant to OCGA § 24-8-807.

     Nelson was called by the State to testify at trial. In that

testimony, he stated that Reyes and Ozuna-Carmona had argued on

occasions prior to Ozuna-Carmona’s death. He also testified that

their fighting was both verbal and physical and that, often when

they fought, Reyes would leave but come back the next day. Nelson

testified that Ozuna-Carmona told him three times that Reyes had

threatened to kill her, the last of which was about a week before her

death. On another occasion, Nelson heard Reyes threaten to kill

Ozuna-Carmona.

     Reyes’    trial   counsel   cross-examined     Nelson     about

inconsistencies in his testimony, including inconsistencies between

what he testified to on direct examination at trial and the

statements he had made in the proffer the day before outside the
jury’s presence. In that line of questioning, trial counsel highlighted

that Nelson had testified both that he had and had not seen Ozuna-

Carmona hit Reyes with a beer bottle the night she was killed.

Nelson then testified that he could not remember which of those

statements was true. Nelson then testified that he told the police in

his 2004 interview that Reyes had threatened Ozuna-Carmona.

Nelson then admitted in the presence of the jury that he had

testified in a hearing the day before that he had never told the police

about threats Reyes made against Ozuna-Carmona.

     At the hearing on Reyes’ motion for new trial, Reyes’ appellate

counsel brought forward a Spanish-to-English translation of

Nelson’s 2004 police interview that was prepared by an interpreter

after appellate counsel began representing Reyes.3 According to the

translation offered by appellate counsel, a transcript of which was

placed in the record of the hearing on the motion for new trial,

Nelson stated in the 2004 police interview that he did not know why


     3 The interpreter testified that it took her “well over 30 hours” to
complete the translation because four voices on the recording spoke over one
another, making it “very difficult to make out what was being said.”
Ozuna-Carmona had problems with Reyes, that he did not know how

Reyes and Ozuna-Carmona “lived their private lives,” that neither

he nor his wife had talked to Ozuna-Carmona about why she and

Reyes had problems or about “what happened,” and that Ozuna-

Carmona did not “confide” in anyone.

     The record shows that an audio recording of the interview

included the words of an officer who spoke both English and Spanish

and translated questions and responses between Nelson and the

English-speaking officers who conducted the interview. Trial

counsel testified that, prior to trial, he had an interpreter review the

interpretations offered by the bilingual officer that could be heard

on the recording. Trial counsel testified that, based on his memory

of the interview, there was nothing exculpatory contained in the

interview and that his interpreter had not reported any “glaring

inconsistencies” in the translation that could be heard on the

recording and that he had received only “minor” notes from the

interpreter about the accuracy of the officer’s translations. Trial

counsel further testified that, in his view, he “impeached the dog out
of Nelson” at trial, including by having him admit in front of the jury

that his testimony the day before in a hearing outside the jury’s

presence was inconsistent with what he had just said from the

witness stand. He further testified that he did not believe anything

in the interview would have helped in excluding Ozuna-Carmona’s

statements to Nelson under OCGA § 24-8-807.

     Reyes argues that, had his trial counsel introduced the

translated statements from the interview at the hearings in which

Ozuna-Carmona’s statements to Nelson were admitted pursuant to

OCGA § 24-8-807, the trial court would have been unlikely to

determine that the statements at issue were trustworthy. Reyes also

argues that trial counsel performed deficiently by not using the

translations of the interview to impeach Nelson’s testimony at trial.

We disagree with both contentions.

     The record makes clear that the audio recording of the

interview was reviewed by the trial court before it ruled on the

admissibility of Ozuna-Carmona’s alleged statements to Nelson

under OCGA § 24-8-807. Because trial counsel was not aware of any
“glaring inconsistencies” between the translations offered by the

bilingual officer on the recording and those of the interpreter he

engaged to review the recordings, it was not unreasonable for trial

counsel to forgo seeking further translations of the interview.

Moreover, the record also makes clear that trial counsel argued that

the contents of the interview should be considered by the trial court

in determining whether the statements at issue should be admitted

pursuant to OCGA § 24-8-807. Thus, Reyes has made no showing

that his trial counsel failed to present Nelson’s statements in the

interview to the trial court.

     Moreover, we are not persuaded that further highlighting of

Nelson’s statements in the interview by trial counsel would have had

any effect on the trial court’s ruling under the residual exception. To

the extent any of Nelson’s statements on the recording now

highlighted by Reyes conflict with testimony he proffered to the trial

court in the hearing, those conflicts go only to Nelson’s credibility.

But as we discussed in Jacobs, the trial court must make its

determination of the trustworthiness of the hearsay statements at
issue “not because of the credibility of the witness reporting them in

court, but because of the circumstances under which they were

originally made.” (Citations and punctuation omitted.) 

 (2). The record is clear that this was the trial court’s focus in

reaching its ruling with regard to the admission of the statements.

And because Nelson’s credibility was not the main factor to be

considered by the trial court in evaluating the trustworthiness of the

statements Ozuna-Carmona allegedly made to Nelson, Reyes cannot

show that no reasonable attorney would have proceeded as his trial

counsel did in this case as to this issue.

     Reyes has also failed to show that his trial counsel performed

deficiently with regard to impeaching Nelson’s trial testimony. As

trial counsel noted in the hearing on the motion for new trial — and

as the trial record makes clear — trial counsel vigorously cross-

examined Nelson about what he told the police in 2004, even going

so far as to secure an admission from Nelson that he had given

different testimony on this subject the day before while under oath

in a hearing outside the jury’s presence. In light of these efforts by
trial counsel, we cannot say that his use of the 2004 interview

constituted deficient performance. This claim of ineffective

assistance therefore fails.

     Judgment affirmed. All the Justices concur.




DECIDED AUGUST 10, 2020 – RECONSIDERATION DENIED SEPTEMBER

                              8, 2020.

     Murder. Gwinnett Superior Court. Before Judge Davis.

     Frances C. Kuo, for appellant.

     Daniel J. Porter, District Attorney, Samuel R. d’Entremont,

Assistant District Attorney; 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.