Lopez v. State

310 Ga. 529

852 S.E.2d 547

LOPEZ

v.The STATE.

S20A1208

Supreme Court of Georgia.

Decided: December 7, 2020

Randall P. Sharp, for appellant.

Bradford L. Rigby, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.

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 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 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. 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-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 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 , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

2. Lopez asserts that his trial counsel labored under a conflict 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 , 307 Ga. 689, 694 (4) (a), 838 S.E.2d 314 (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:

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 , 466 U.S. 668, 687-95 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If he fails to satisfy either part of this test, we need not consider the other. See Richards v. State , 306 Ga. 779, 781 (2), 833 S.E.2d 96 (2019). To prove deficient performance, Lopez must show that trial counsel performed "in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms." Reyes v. State , 309 Ga. 660, 669 (3), 847 S.E.2d 194 (2020) (citation omitted). "A strong presumption exists that counsel's conduct falls within the broad range of professional conduct." Id. (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 , 306 Ga. 140, 144 (3), 829 S.E.2d 321 (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 , 308 Ga. 423, 427 (2), 841 S.E.2d 714 (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 allegation that counsel's performance was deficient." Taylor v. State , 302 Ga. 176, 178 (2), 805 S.E.2d 851 (2017). And where, as here, "trial counse...