Clements v. State

896 S.E.2d 549

CLEMENTS

v.The STATE.

Velazquez

v.The State.

S23A0857

S23A1030

Supreme Court of Georgia.

Decided: December 19, 2023

Superior Court, Hall County, Jason J. Deal, Judge

Ivars Lacis, Lacis Law, LLC, 16 Eastbrook Bend, Suite 101, Peachtree City, Georgia 30269, for Appellant in S23A0857.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Chelsea Sharonlyn-Clyde Harvey, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Harold Alvin Buckler, A.D.A., Hall County District Attorney’s Office, P.O. Box 1690, Gainesville, Georgia 30503, Lee Darragh, District Attorney, Kelley Martin Robertson, A.D.A., Northeastern Circuit District Attorney’s Office, P.O. Box 1690, Gainesville, Georgia 30503, for Appellee in S23A0857.

James Kenneth Luttrell, P.O. Box 4104, Canton, Georgia 30114, for Appellant in S23A1030.

Patricia B. Attaway Burton, Deputy Attorney General, Christopher M. Carr, Attorney General, Chelsea Sharonlyn-Clyde Harvey, Meghan Hobbs Hill, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Harold Alvin Buckler, A.D.A., Hall County District Attorney’s Office, P.O. Box 1690, Gainesville, Georgia 30503, Lee Darragh, District Attorney, Kelley Martin Robertson, A.D.A., Northeastern Circuit District Attorney’s Office, P.O. Box 1690, Gainesville, Georgia 30503, for Appellee in S23A1030.

LaGrua, Justice.

[1] Appellants London Clements and Eric Velazquez were jointly tried for murder and other offenses connected to the shooting death of Hall County Deputy Sheriff Blane Dixon on July 7, 2019. Clements was convicted of felony murder, and Velazquez was convicted of malice murder and other crimes.¹

Although the two co-defendants raise different enumerations of error on appeal, their appeals have been consolidated for purposes of issuing an opinion.

On appeal, Clements contends that: (1) the trial court erred by denying his motion for a directed verdict on the conspiracy to commit robbery and burglary count and the felony murder count predicated thereon; and (2) the trial court failed to exercise its discretion to grant his motion for new trial on the general grounds. Velazquez contends on appeal that: (1) there was insufficient evidence to support his conviction for malice murder and felony murder predicated on aggravated assault on a peace officer; (2) the trial court erred by denying his motion for a directed verdict as there was insufficient corroboration of his coconspirators’ testimony; (3) the trial court erred by denying Velazquez’s motion to transfer venue; (4) the trial court erred by denying Velazquez’s motion for mistrial; and (5) Velazquez received ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution. For the reasons that follow, we affirm the convictions in both cases.

The evidence presented at trial showed that, on the morning of July 2, 2019, two residents of Hall County discovered that their vehicles had been stolen overnight and reported the thefts to law enforcement. On the afternoon of July 7, law enforcement officers discovered the stolen vehicles—a 2009 red Dodge Caliber and a 2002 silver Toyota Avalon—parked behind a thrift store in Hall County, Because the officers suspected the vehicles had been utilized in a series of burglaries committed the day before, the officers did not immediately inform the vehicle owners that their vehicles had been located; instead, as detailed below, the officers affixed GPS trackers to these vehicles in hopes of apprehending the suspects involved.

(a) The July 6 burglaries and initial investigation

During the early morning hours of July 6, several break-ins occurred at automobile dealerships and pawnshops in the Hall County area. Because most of the pawnshops were equipped with security systems to monitor after-hours activity, the burglaries and attempted burglaries at the pawnshops—namely, Swap and Trade Pawn, Foxhole Guns and Archery, and Double Deuce Pawn and Gun— were the first incidents to be reported to law enforcement. Based on surveillance video recordings from the pawnshops, law enforcement officers were able to establish that, between 3:15 a.m. and 5:20 a.m. on July 6, two suspects—each carrying firearms and wearing dark clothing, a mask, and gloves— broke into or attempted to break into the pawnshops.² The surveillance video recordings also established that the suspects gained entry to at least one of the pawnshops by attaching a strap to the front doors of the shop, connecting it to the rear tailgate of a pickup truck, and pulling the truck forward to force open the doors. Two crossbows were stolen from Swap and Trade Pawn and 23 firearms—including handguns, rifles, and revolvers—and ammunition were stolen from Double Deuce Pawn and Gun.³

While investigating the pawnshop burglaries on the morning of July 6, law enforcement officers learned that several automobile dealerships had also been broken into overnight, including Los Plebes Auto Sales, Texa-no Auto Sales, Texas Trucks and Autos, and Eddie’s Auto Sales.⁴ Francisco Cuella, the owner of Los Plebes Auto Sales, testified that, when he arrived at the dealership around 9:00 a.m. on July 6, he realized that five pickup trucks had been stolen from his lot, including a 2015 Dodge Ram 2500, which law enforcement officers later established was the pickup truck used in the burglary at Swap and Trade Pawn. Cuella testified that one of the other stolen pickup trucks was discovered later that morning in a nearby neighborhood.⁵ According to Cuella and law enforcement officers investigating the thefts, a doorbell camera installed on the exterior of one of the houses in this neighborhood captured video recordings of the stolen pickup truck driving into the neighborhood, followed by a red Dodge Caliber. The video recordings also showed two men "jump out of the truck to get in a red Caliber." Based on surveillance video recordings from Los Plebes, law enforcement officers were able to establish that the dealership was broken into around 1:23 a,m. on July 6, that the suspects were wearing dark clothing, face masks, and gloves, and that at least one of the suspects was armed with a handgun.

Celia Hernandez, the office manager for Texano Auto Sales, testified that Texano was also burglarized during the early morning hours of July 6. Based on surveillance video recordings from Texano, law enforcement officers determined that two suspects—armed with handguns and wearing dark clothing, masks, and gloves—broke into the dealership’s office, at which point, one of the suspects started going through files inside the office. When Hernandez examined the office after the burglary, she noticed that a file had been dropped on the floor that, related to "an incident with [Garcia-Solis] in their business." Hernandez testified that, in 2018, Garcia-Solis broke into a pickup truck located at the dealership—an incident for which Garcia-Solis was later charged—and Hernandez kept a file on the incident. Hernandez advised law enforcement officers investigating the July 6 burglary that Garcia-Solis might be involved because she discovered this file on the floor and because she noted in the video recording "the interest [the man] took in reading [the file]." According to Hernandez, no cars were stolen from the dealership during the July 6 burglary because the exit was blocked with other cars.

Holly Lester, a DeKalb County crime scene investigator who resided in Hall County at the time, testified that, between the late-night hours of July 5 and early morning hours of July 6, "crime scene investigative tools" and "various police equipment"—including a radio, gun belt, flashlight, bulletproof vest, and baton—were stolen from her county-owned van, which was parked in front of her residence. At trial, Lester reviewed images from the surveillance video recordings of the burglary at Double Deuce Pawn and Gun on July 6, and she confirmed that a bulletproof vest worn by one of the suspects in the video and the baton he was carrying appeared to be "consistent with the vest and baton "missing out of [her] van."

After compiling and reviewing the surveillance video recordings from the impacted dealerships and pawnshops, law enforcement officers were able to establish that the same suspects likely committed all the burglaries, as they were wearing "the same masks and clothing in all of the thefts." On the afternoon of July 7, Investigator Jeremy Grindle with the Hall County Sheriff's Department discovered the stolen red Dodge Caliber and silver Toyota Avalon parked behind a thrift store in Hall County. Investigator Grindle testified that, because he had seen a red Dodge in the doorbell video recording on July 6, he "believed that the red Dodge Caliber was involved in these … thefts." Investigator Grindle and other law enforcement officers affixed trackers "to the bottom of the frame of the car[s]" to "emit[] a GPS signal" that law enforcement officers could monitor. Later that evening, Investigator Grindle met with the oncoming patrol shift, including Deputy Dixon and his commanding officer, Sergeant Charles Hewell, to explain the tracking system and what to do in the event the stolen ears started moving.

(b) The events leading up to the identification and apprehension of Velazquez, Garcia-Solis, Clements, and Cruz

(1) The events of July 6

Antony Macias—a friend of the co-defendants—testified at trial that he learned about the automobile dealership and pawnshop burglaries on July 6 while he was at his uncle’s 50-acre ranch in Hall County preparing for a family party. Macias testified that a friend named "Adrian"⁶ contacted him around 12:00 p.m. to ask if Garcia-Solis and Velazquez could come shoot guns at the ranch that afternoon, and a few minutes later, Velazquez, Garcia-Solis, and Adrian "pulled up" to the ranch in a ...