Lopez v. State

FINAL COPY

                  S20A1208. LOPEZ v. THE STATE.


      MCMILLIAN, Justice.

      Nicolas Lopez was convicted of malice murder and possession

of a firearm during the commission of a felony in connection with the

shooting death of Robert Moon.1 After his convictions, Lopez waived

his right to the assistance of counsel. Representing himself, Lopez

now appeals, asserting that (1) his trial counsel labored under a

conflict of interest; (2) he otherwise received ineffective assistance of


      1 Moon was shot and killed on May 26, 2017. On September 18, 2017, a

Grady County grand jury indicted Lopez for malice murder (Count 1), felony
murder (Count 2), aggravated assault (Count 3), possession of a firearm during
the commission of a felony (Count 4), and possession of a firearm by a convicted
felon (Count 5). At a trial held on December 4 and 5, 2018, a jury found Lopez
guilty of Counts 1 through 4, and the State agreed to nolle pros Count 5. The
trial court sentenced Lopez to serve a life sentence in prison without the
possibility of parole for malice murder and a consecutive term of five years in
prison for possession of a firearm during the commission of a felony. Count 2
was vacated as a matter of law, and Count 3 merged with Count 1. Lopez filed
a motion for new trial through counsel on December 19, 2018, and
subsequently waived his right to the assistance of counsel for further
proceedings. Lopez then filed an amended motion for new trial on November
18, 2018. Following a hearing, the trial court denied the motion for new trial
on November 21, 2019. Lopez timely appealed, and the case was docketed to
the August 2020 term of this Court and thereafter submitted for a decision on
the briefs.
counsel; (3) the trial court erred in failing to ensure an accurate

transcription of the trial; (4) the trial judge erred in failing to recuse

himself; and (5) the trial court erred in recharging the jury. For the

reasons that follow, we find no error and affirm.

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

evidence presented at trial shows that on the afternoon of May 26,

2017, Deputy Michael Starling of the Grady County Sheriff’s Office

responded to a report of gunshots fired in the area of Lopez’s

property off Bond Road in an unincorporated area of Grady County.

The deputy was familiar with the neighborhood because he had

previously responded to arguments between Lopez and Moon. When

Deputy Starling arrived, he saw Moon in his backyard working on a

truck with his brother. He tried to make contact, but Moon shook his

head, indicating he did not wish to speak, and pointed toward

Lopez’s home nearby. Deputy Starling then proceeded to Lopez’s

home. When Lopez came outside and asked why the deputy was on

his property, Deputy Starling could smell alcohol coming from him.

Deputy Starling explained to Lopez that someone had called 911 to

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report gunshots. Lopez became frustrated and started yelling at

Moon. Deputy Starling intervened and told Lopez that he could not

tell Lopez who had called 911 and that Lopez needed to calm down.

Lopez said there would not be any problem and that he was going to

go inside and lie down.

     Curtis Washington, who lived next door to Moon and across the

street from Lopez, testified that his children were playing outside

that day when they saw Lopez shooting a gun. They ran inside the

house, and when Washington looked outside, he saw Lopez holding

a rifle. He called the landlord to complain, and the landlord told him

to call the police. A short time later, Lopez came to Washington’s

home to complain about the police being called. Lopez’s attention

shifted to Moon, who was still outside with his brother. Lopez stared

at Moon and said, “If that motherf***er cross me, I’m going to kill

him.” Later that evening, Washington saw Lopez walk toward where

Moon was standing by Moon’s truck, arguing loudly as he advanced.

Washington then heard three gunshots. As he called 911, he saw

Lopez walk back toward his house, get in his Jeep, and speed off.

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Washington denied ever seeing Moon with a knife or other weapon

that night.

     Jessie Barker, Moon’s half-brother, testified that he went to

Moon’s home that day to help him repair his truck. After a few hours,

they stopped working to eat a sandwich on the hood of Moon’s truck.

At that point, Lopez walked over and asked Moon to come out to the

road, cursing and yelling about Moon calling the police on him. Moon

refused to walk over to Lopez and asked him whether he was

carrying a gun. Lopez did not respond, but he walked straight

toward Moon and shot him point-blank with a handgun. According

to Barker, Moon had no weapons on him that day and made no

movement toward Lopez.

     Responding officers located two .45-caliber shell casings at the

scene and additional .223-caliber shell casings in Lopez’s yard. In

conducting a search of Lopez’s home, officers discovered a .223

assault rifle leaning next to the front door, a .30-06 deer hunting

rifle, a single shot 12-gauge shotgun, a single shot 410 shotgun, and

other firearm-related objects. They also located a box containing .45-

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caliber rounds and a receipt for a .45 Taurus pistol, but were unable

to recover any .45-caliber firearm. The following day, Lopez turned

himself in at the Grady County Sheriff’s Office. In a recorded

statement, Lopez admitted shooting Moon but claimed he did so in

self-defense because Moon tried to attack him with a knife. The

State’s medical examiner explained that Moon sustained two

gunshot wounds, one to his right leg and one to his upper left chest.

The bullet that entered Moon’s chest inflicted fatal wounds and was

recovered from his spine. A GBI firearms examiner testified that the

bullet recovered from the autopsy was a .45-caliber bullet consistent

with having been fired from a Taurus .45 semi-automatic pistol.

     Lopez testified on his own behalf and explained that he had

enjoyed living in his quiet neighborhood for many years until new

people moved in, causing strange smells and traffic at all hours of

the night. He believed the fumes were related to the manufacture of

methamphetamine. Lopez continued to have problems with his

neighbors, including Moon, who had threatened him with a knife

and punched him several months before the shooting and continued

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to harass him. On the day of the shooting, Moon taunted him and

threatened Lopez’s wife. Then Moon went to his truck and grabbed

a knife and came toward him aggressively. When Moon got within

three feet of him while swinging his knife, Lopez explained that he

felt his life was in danger. He shot Moon in self-defense and then left

town in a panic before later turning himself in.

      1. Lopez does not dispute the legal sufficiency of the evidence

supporting his convictions. Nevertheless, we have reviewed the

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

to the verdict, the evidence presented at trial and summarized above

was sufficient to authorize a rational jury to find Lopez guilty

beyond a reasonable doubt of the crimes of which he was convicted.

See Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979).2

      2. Lopez asserts that his trial counsel labored under a conflict


      2 We remind litigants that this Court will end its practice of considering

the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 

 (4) (

) (2020). This Court began assigning
cases to the December term on August 3, 2020.
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of interest. In order to prevail on this claim, Lopez must show more

than a mere possibility of conflict. He “must show an actual conflict

of interest that adversely affected his attorney’s performance.”

Williams v. State, 

 (4) (a) (

) (2020)

(citation and punctuation omitted). Pretermitting whether Lopez

preserved this enumeration of error for appeal,3 he has not made the

required showing. Instead, he argues that his trial counsel was

“improperly aligned” with the State because he had worked as a

prosecutor in the past. As evidence of the alleged conflict of interest,

Lopez points to two statements made by his trial counsel. In the

first, made during voir dire, trial counsel asked the potential jurors

whether he had previously prosecuted a case against anyone on the

panel, explaining that he had worked as a district attorney. Second,

Lopez complains that his trial counsel called him “excitable” during

closing argument. However, the record shows that this statement

was made in the following context:


      3 See Thomas v. State, 

 (2) (a) (

) (2015)

(appellant’s motion for new trial filed in the trial court did not raise conflict-ofinterest issue and the issue was therefore not preserved for appeal).
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     Now, I’ve been a lawyer for almost twenty-two years. I’ve
     never had a client as excitable as Nick, and he’s excitable
     because he’s literally fighting for his life. He was on the
     stand, and you know, he says a lot of stuff, but he’s never,
     ever deviated from this. He said it in the interview just a
     couple of days after the incident, he said it every time I’ve
     talked to him and he said it on the stand, unequivocally,
     Robert Moon had a knife. I was afraid, Robert Moon had
     a knife.

Lopez has not shown how either statement illustrates an actual

conflict   of   interest   or   negatively   impacted   his   attorney’s

performance. This enumeration of error fails.

     3. Lopez separately asserts that he was denied constitutionally

effective assistance of counsel on several grounds. To succeed on this

claim, Lopez must demonstrate both that his trial counsel performed

deficiently and that, absent counsel’s deficient performance, a

reasonable probability exists that the outcome at trial would have

been different. See Strickland v. Washington, 

(III) (

, 80 LE2d 674) (1984). If he fails to satisfy either

part of this test, we need not consider the other. See Richards v.

State, 

 (2) (

) (2019). To prove deficient

performance, Lopez must show that trial counsel performed “in an

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objectively unreasonable way, considering all of the circumstances

and in light of prevailing professional norms.” Reyes v. State, 

 (3) (

) (2020) (citation and punctuation

omitted). “A strong presumption exists that counsel’s conduct falls

within the broad range of professional conduct.” 

 (citation and

punctuation omitted). “Thus, deficiency cannot be demonstrated by

merely arguing that there is another, or even a better, way for

counsel to have performed.” Davis v. State, 

 (3) (

) (2019). With these principles in mind, we address each of

Lopez’s claims in turn.

     (a) Lopez argues that trial counsel failed to strike unqualified

jurors and to select a racially balanced jury. We first note that Lopez

has failed to cite any record evidence to support this claim. See

Dresbach v. State, 

 (2) (

) (2020)

(“Arguments and representations made in court briefs do not

constitute record evidence to support a finding of fact.” (citation and

punctuation omitted)). Moreover, “the decision as to which jurors to

strike is a strategic decision that, if reasonable, will not support an

                                  9
allegation that counsel’s performance was deficient.” Taylor v. State,

 (2) (

) (2017). And where, as here,

“trial counsel does not testify at the motion for new trial hearing, it

is extremely difficult to overcome the presumption that counsel’s

conduct resulted from reasonable trial strategy.” Brown v. State, 

 (5) (

) (2011) (citation and punctuation

omitted). Lopez has not shown that trial counsel’s performance was

constitutionally defective on this ground.

     (b) Lopez also asserts that trial counsel failed to object to the

State’s request that Investigator Chris Luckey be allowed to remain

in the courtroom. However, because Investigator Luckey was the

State’s chief investigative agent, the trial court would have acted

within its discretion in denying an objection on this ground. See

OCGA § 24-6-615 (2) (sequestration statute does not authorize

exclusion of “[a]n officer or employee of a party which is not a natural

person designated as its representative”); Anderson v. State, 

 (5) (

) (2019). And the failure to make a meritless

objection cannot provide the basis upon which to find ineffective

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assistance of counsel. See Mattox v. State, 

 (2)

(

) (2020).

     (c) In two related enumerations of error, Lopez claims that trial

counsel failed to properly investigate and introduce all of the GBI’s

investigative summaries and failed to call GBI Special Agent Marko

Jones to testify about his investigative summaries. However, Lopez

has failed to show that trial counsel did not properly investigate the

case. Nor has he shown that trial counsel’s decision not to introduce

the summaries or to call Agent Jones to testify was not a matter of

reasonable trial strategy. See Calhoun v. State, 

 (2)

(b) (

) (2020) (“[I]n the absence of testimony to the

contrary, counsel’s actions are presumed strategic.” (citation and

punctuation omitted)). Moreover, the record shows that trial counsel

pursued a strategy of exploring through cross-examination any

inconsistencies in the various witnesses’ statements, and Lopez has

failed to show that this strategy was unreasonable. See Horton v.

State, __ Ga. __, __ (5) (a) (

) (2020) (“[D]ecisions as to

what witnesses and other evidence to present are matters of trial

                                 11
strategy and are ineffective only if unreasonable ones that no

competent attorney would make.” (citation and punctuation

omitted)); Morrison v. State, 

 (5) (b) (

)

(2018) (“Decisions about what questions to ask on cross-examination

are quintessential trial strategy and will rarely constitute

ineffective assistance of counsel.” (citation and punctuation

omitted)).

      (d) Lopez also asserts that trial counsel failed to conduct a full

investigation and obtain a pretrial ruling to suppress his custodial

statement, which he alleges was not voluntarily given.4 “When trial

counsel’s failure to file a motion to suppress is the basis for a claim




      4 In the same enumeration of error, Lopez also argues in passing that his

counsel should have moved to exclude or object to portions of various witnesses’
testimony. However, “[t]he matter of when and how to raise objections is
generally a matter of trial strategy.” Hayes v. State, 

 (2) (c) (

) (2015). And Lopez has not carried his burden of proving that trial
counsel’s decision in these instances was not a matter of reasonable trial
strategy. See Calhoun, 

 (2) (b). Nor has Lopez attempted to prove
plain error in this regard. See Denson v. State, 

 (2) (

) (2019) (To establish plain error, the appellant “must point to an
error that was not affirmatively waived, the error must have been clear and
not open to reasonable dispute, the error must have affected his substantial
rights, and the error must have seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” (citation and punctuation omitted)).
                                        12
of ineffective assistance, the defendant must make a strong showing

that the damaging evidence would have been suppressed had

counsel made the motion.” Harris v. State, __ Ga. __, ___ (4) (c) (__

SE2d __) (2020) (citation and punctuation omitted). Lopez cannot

make this showing. Rather, the record shows that the day after

Lopez turned himself in, officers interviewed him for approximately

one hour. Before beginning the interview, officers confirmed that

Lopez was able to read and write and reviewed a waiver-of-rights

form with him. Lopez then initialed and signed the form before

agreeing to speak with the officers. Considering the totality of the

circumstances, including the video recording of the interview, there

is nothing to suggest “excessively lengthy interrogation, physical

deprivation, brutality, or other such hallmarks of coercive police

activity that would render the resulting statement involuntary.”

Perez v. State, __ Ga. __, __ (2) (

) (2020) (citation and

punctuation omitted). Thus, any motion to suppress filed on this

ground would have been meritless, and this enumeration of error

cannot serve as the basis for an ineffective assistance claim. See

                                 13
Mattox, 308 Ga. at 304-05 (2).

     (e) Lopez argues that trial counsel should have moved for the

recusal of the prosecutor because the prosecutor had previously tried

an unrelated criminal case against Lopez. However, because Lopez

did not raise this claim in his amended motion for new trial, which

was his first opportunity to do so, it is not preserved for appellate

review by this Court. See Elkins v. State, 

 (4) (a)

(

) (2019) (where claim of ineffective assistance of trial

counsel not raised at earliest practicable moment, it is not preserved

for appellate review).

     (f) Lopez also argues that trial counsel failed to strike eight

jurors who were either biased or “medically questionable.” We are

not persuaded. As explained in Division 3 (a), the decision as to

which jurors to strike is a matter of trial strategy. Moreover, “[t]he

law presumes that potential jurors are impartial, and the burden of

proving partiality is on the party seeking to have the juror

disqualified.” Brown v. State, 

 (4) (

)

(2014) (citation and punctuation omitted). Lopez’s bare assertions

                                 14
are not sufficient to overcome this burden. See Dresbach, 

 (2). Accordingly, Lopez has not shown that he was denied

constitutionally effective assistance of counsel.

     To the extent that Lopez argues in the same enumeration of

error that the trial court erred in its response to an indication after

the jury was sworn that certain jurors did not wish to serve on the

jury, we discern no error. The record shows that after receiving

notice from the bailiff that some members of the jury somehow

indicated they did not want to serve, the trial court stated in open

court:

     And I’m going to let you know, I’m not excusing anyone
     from this jury unless you have a medical emergency or
     you have an emergency family matter or something like
     that. The odds of you getting off are going to be slim to
     almost none.

Neither Lopez nor the prosecutor objected to the trial court’s

response, and nothing in the record shows that the jurors in question

were unqualified or held an opinion of the guilt or innocence of Lopez

that was so fixed and definite that they would be unable to set such

an opinion aside and decide the case based upon the evidence and

                                  15
the court’s charge. See Collins v. State, 

 (3) (

) (2020). Because Lopez is unable to show that a juror was

unqualified to serve, he cannot show that the trial court abused its

broad discretion in refusing to replace any jurors who may not have

wished to serve. See Ware v. State, 

 (3) (

) (2019) (trial court has broad discretion in determining whether

to replace a juror with an alternate for good cause).

     4. Lopez alleges that the trial court failed to ensure that an

accurate transcription of the trial was secured. Although OCGA §

17-8-5 requires that the presiding judge have the testimony taken

down for the trial of all felonies, when the transcript or record does

not fully disclose what happened at trial, the burden is on the

complaining party to have the record completed in the trial court.

See Bamberg v. State, 

 (2) (

) (2020) (if

a criminal defendant believes the transcript omits or misrepresents

a necessary part of the proceeding, he has the responsibility to seek




                                 16
to correct the transcript in that respect); OCGA § 5-6-41 (g).5 Lopez

has not shown that any part of the transcript was incomplete or

inaccurate.

      5. Lopez asserts that the trial court erred in denying his pro se

motion to suppress the admission of his custodial statement at trial.

However, a criminal defendant “does not have the right to represent

himself and also be represented by an attorney.” White v. State, 

 (2) (

) (2017) (citation and punctuation

omitted). Thus, a pro se filing by a represented party is a legal

nullity without effect. See 

 Moreover, for the reasons stated in

Division 3 (d), the record shows that Lopez’s statement was freely

and voluntarily given. Accordingly, this enumeration of error fails.

      6. Lopez argues that the trial judge erred in failing to recuse

himself because he had presided over an unrelated criminal case

against Lopez only 18 months prior to the trial in this case. But




      5 We also note that, although Lopez complains that the State’s Exhibit

23 (the video recording of Lopez’s custodial statement) was not transcribed, the
record shows that the parties agreed that it need not be reported because it
was made part of the record and would be available for appellate review.
                                      17
Lopez failed to preserve this enumeration of error for review. “When

a party learns of potential grounds for disqualification of a trial

judge, he must promptly move to recuse or the issue of

disqualification is not preserved for appellate review.” Keller v.

State, 

 (10) (

) (2020) (explaining that to

allow otherwise would be to sanction gamesmanship). See also

Uniform Superior Court Rule 25.1 (requiring recusal motion and

accompanying affidavits to be filed within five days of learning

alleged grounds for disqualification).

     7. Lastly, Lopez asserts that the trial court erred in responding

to an inquiry from the jury. We disagree. The record shows that

during deliberations the jury asked the trial court for the definition

of felony murder and aggravated assault, “possibly with an

example.” The trial court declined to give an example, but recharged

the jury, without objection from either party, on the definitions of

felony murder and aggravated assault. Because Lopez did not object,

we are limited to reviewing this charge for plain error. See Russell

v. State, __ Ga. __, __ (3) (a) (

) (2020). To establish plain

                                   18
error, Lopez “must point to an error that was not affirmatively

waived, the error must have been clear and not open to reasonable

dispute, the error must have affected his substantial rights, and the

error must have seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Denson v. State, 

 (2) (

) (2019) (citation and punctuation omitted).

     “In reviewing a challenge to the trial court’s jury instruction,

we view the charge as a whole to determine whether the jury was

fully and fairly instructed on the law of the case.” Russell, __ Ga. at

__ (3) (a) (citation and punctuation omitted). “A jury instruction

must be adjusted to the evidence and embody a correct, applicable,

and complete statement of law.” Jackson v. State, 

(2) (

) (2019) (citation and punctuation omitted).

Because the trial court correctly recharged the jury as to the

definitions of felony murder and aggravated assault, and because

Lopez has not shown that the trial court was required to provide an

example in its recharge, he cannot show error, much less plain error.

Accordingly, this enumeration of error is without merit. See Dixon

                                  19
v. State, 

 (2) (a) (

) (2020) (no error where

trial court provided a correct and complete statement of the law

applicable to the charges).

     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, and Ellington, JJ., concur. Warren, J., not
participating.



                    DECIDED DECEMBER 7, 2020.
     Murder. Grady Superior Court. Before Judge Chason.
     Nicolas Lopez, pro se.
     Joseph K. Mullholland, District Attorney, Moruf O. Oseni,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant
Attorney General, for appellee.




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