Cabrera-Zamarripa v. State

901 S.E.2d 737

CABRERA-ZAMARRIPA

v.The STATE.

A24A0523

Court of Appeals of Georgia.

May 15, 2024

David Edward Clark, for Appellant.

Patsy A. Austin-Gatson, Clifford Louis Kurlander, for Appellee.

Barnes, Presiding Judge.

Following a jury trial, Stewart Alonzo Cabrera-Zamarripa ("Cabrera") was convicted of armed robbery, possession of a firearm during the commission of a felony, and other offenses arising out of the theft of a pair of limited edition sneakers. Arguing that he is entitled to new trial, Cabrera contends that the trial court erred by admitting into evidence a stipulation without first determining that he knowingly and voluntarily waived his constitutional rights as to the stipulated facts and evidence. Cabrera further maintains that the trial court gave erroneous jury instructions on the law of factual stipulations and on possession of a firearm during the commission of a felony. For the reasons discussed below, we affirm.

Construed in the light most favorable to the verdict,¹ the evidence showed that Gustavo Campa, a high school student, sold pairs of limited edition sneakers, and he arranged through a social media app to sell a pair of Yeezy 350 Breds to a buyer later identified as Cabrera. On the afternoon of July 13, 2019, Campa had his friend, Myles Moon, drive him to a Kroger parking lot in Gwinnett County to finalize the sale. Campa’s friend Diandre Garrett rode with them. After they arrived at the parking lot, they saw Cabrera in a parked car with his friend, Jose "Ivan" Guevara. Because it was raining, Campa invited Cabrera into Moon’s car to discuss the sale, and both Cabrera and Guevara got into the backseat. During the ensuing discussion over the shoes, Moon sat in the driver’s seat, Campa in the front passenger seat, Garrett in the right rear passenger seat, Guevara in the center rear passenger seat, and Cabrera in the left rear passenger seat.

As the discussion continued, Campa handed the shoes to Cabrera so that he could inspect them. Cabrera, however, put the shoes in his book bag, announced that he was taking them, and pulled out a handgun. Cabrera pointed the handgun at Campa and Garrett. As Cabrera exited from the car with the shoes, Garrett reached for the handgun, and Cabrera fired two shots into the car. One of the shots wounded Garrett, and the other wounded Guevara. Cabrera and Guevara ran off, got into their car, and fled from the parking lot.

Immediately after the shooting, Moon drove Campa and Garrett to Gwinnett Medical Center, where Garrett was treated for his gunshot wounds. The three of them subsequently were interviewed by the police at the hospital. Garrett showed an officer photographs of Cabrera on social media and later identified him in a photographic lineup as the shooter. Moon also was shown a photographic lineup and identified Cabrera as the shooter. Additionally, Moon consented to the search of his car, and a crime scene investigator discovered a bullet projectile lodged in the back of the front passenger seat and a shell easing ejected from a .40 caliber firearm on the left rear passenger seat. Blood was visible in the rear passenger compartment of the car and on the rear passenger doors.

The police obtained a search warrant for Cabrera’s residence. During the search, the police found a .40 caliber pistol and a handgun laser site in Cabrera’s bedroom, but further testing indicated that the handgun was not the one used in the shooting. Among other items, the police found a book bag and a collection of shoes and shoe boxes, but not the shoes taken from Campa.

Additionally, as part of their investigation, the police obtained copies of Kroger’s security camera videos. One video showed two cars located in the area of the shooting incident and a person running in a white shirt, but the camera was too far away too confirm the makes or the models of the cars or the identity of the person running.

Shortly after the shooting, the police also interviewed Cabrera’s friend, Guevara, who sought treatment at a different hospital. Guevara initially told the police that he had been shot at a county park after he went there to purchase some shoes from someone. Guevara later conceded to an investigator that the shooting occurred at the Kroger during a shoe deal, but he claimed that the driver of the other car was the one who fired a gun.

Cabrera was arrested and indicted on charges of armed robbery, aggravated assault (two counts), theft by taking, and possession of a firearm during the commission of a felony (armed robbery). At trial, Campa and Garrett testified about the shoe deal as described above and identified Cabrera as the shooter. The recorded police interviews of Campa, Garrett, and Moon in which they described the shooting incident also were introduced into evidence and played for the jury. In addition to the responding officers and investigators involved in the case, the State called the crime scene investigator who photographed and processed the evidence relating to Moon’s car, and she opined that the locations of the bullet casing and projectile were consistent with someone firing the gun while sitting in or exiting from the left rear passenger seat.

The State also called Guevara as a witness. Guevara testified about the shoe deal, but he maintained that he did not see Cabrera with a gun, that he blacked out when he got shot, and that he did not know who shot him. According to Guevara, he remembered hearing gunshots but could no longer recall seeing anyone with a gun in the car that day.

Additionally, a written list of stipulations signed by the prosecutor and Cabrera’s counsel was admitted into evidence and read into the record. The stipulations pertained to the search of Cabrera’s residence and the items found there; the security camera video obtained from Kroger; the audio and video recordings of the police interviews of Moon, Campa, Garrett, and Guevara; an investiga- tor’s report about the case; and the photographic lineups shown to Garrett and Moon.

After the State rested, the defense called a firearm ballistics expert, who disagreed with the crime scene investigator’s assessment of the trajectory of the gunfire based on the location of the projectile and shell casing found in Moon's car. Cabrera elected not to testify.

The jury returned a verdict of guilty on all counts. Cabrera subsequently filed a motion for new trial, as amended, which the trial court denied, except with respect to a sentencing issue. Cabrera filed a notice of appeal from that order, but this Court dismissed the appeal because Cabrera had not yet been resentenced. After the trial court resentenced Cabrera,² his appeal was retransmitted to this Court and is now properly before us for review.

[1] 1. Cabrera contends that the trial court erred by admitting into evidence the written list of stipulations signed by the prosecutor and defense counsel. According to Cabrera, by stipulating to certain facta and to the admission of certain evidence, he waived his fundamental constitutional rights to trial by jury, to proof of guilt beyond a reasonable doubt, to confront witnesses, and to due process as to those stipulations. Cabrera maintains that the trial court should have obtained his express, personal waiver of those constitutional rights with respect to the stipulations before their admission at trial.

[2–4] Cabrera’s argument is unpersuasive. We have previously rejected the argument that a trial court must question a defendant as to whether he agrees to a stipulation authorized by his counsel or obtain a personal waiver from a defendant of his constitutional rights before admitting a stipulation at trial. See Muldrow v. State, 322 Ga. App. 190, 194-195 (3), 744 S.E.2d 413 (2013); Littlejohn v. State, 320 Ga. App. 197, 204-205 (3), 739 S.E.2d 682 (2013); Martin v. State, 251 Ga. App. 149, 149-150 (1), 553 S.E.2d 827 (2001). Rather, a stipulation made by defense counsel and presented to the jury in the defendant’s presence is sufficient to bind the defendant and show his authorization. See Muldrow, 322 Ga. App. at 195 (3), 744 S.E.2d 413.

Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake. Such an express stipulation should generally be made in writing or in open court.

(Citation and punctuation omitted.) Flading v. State, 327 Ga. App. 346, 350 (1), 759 S.E.2d 67 (2014).

The written list of stipulations was agreed to by Cabrera's counsel, admitted into evidence, and read to the jury in Cabrera’s presence without objection. And Cabrera does not claim fraud or mistake in reaching the stipulations. Under these circumstances, Cabrera "acquiesced in the stipulations, and the stipulations were binding upon him." Littlejohn, 320 Ga. App. at 205 (3), 739 S.E.2d 682. See Finding, 327 Ga. App. at 350-351 (1), 759 S.E.2d 67; Muldrow, 322 Ga. App. at 195 (3), 744 S.E.2d 413. We therefore discern no error by the trial court in the admission of the stipulations.³

[5] 2. Cabrera also contends that the trial court gave an erroneous jury instruction on the law of factual stipulations. The trial court instructed the jury:

It is your responsibility to determine the facts of this case from all of the evidence presented. Then you must apply the law I give you in this charge to the facts as [you] find them to be.

Your oath requires that you will decide this case based on the evidence. Evidence is the means by which any fact that is put in issue is established or disproved. Evidence includes all of the testimony of the witnesses and any exhibits admitted during the trial and stipulations of the attorneys; that is, any facts to which the attorneys have agreed...