Torres v. State

361 Ga.App. 149

863 S.E.2d 399

TORRES

v.The STATE.

A21A1148

Court of Appeals of Georgia.

September 15, 2021

Certiorari Denied February 15, 2022

Brian Steel, Atlanta, for Appellant.

Elizabeth Dalia Racine, Sean Garrett, Aimee Fatemeh Sobhani, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Jose Ismael Torres guilty of making terroristic threats, criminal street gang activity, and three counts of aggravated assault. Torres appeals following the denial of his motion for a new trial. He asserts that (1) the trial court abused its discretion by failing to completely answer a question posed by the deliberating jury, and (2) his trial counsel rendered ineffective assistance by failing to make a general demurrer to the terroristic threats count in the indictment. We find no error and affirm Torres's convictions.

1. Torres first asserts that the trial court abused its discretion by failing to completely answer a question posed by the deliberating jury. We find no reversible error in the trial court's response to the question.

"A trial court has a duty to recharge the jury on issues for which the jury requests a recharge." Dozier v. State , 306 Ga. 29, 32 (3), 829 S.E.2d 131 (2019) (citation and punctuation omitted). However, "it [is] within the court's discretion whether to recharge the jury in full or only upon the point or points requested by the jury." Barnes v. State , 305 Ga. 18, 23 (3), 823 S.E.2d 302 (2019) (citation and punctuation omitted). "The necessity, extent, and character of any supplemental instructions to the jury are matters within the discretion of the trial court and appellate review is limited to determining whether that discretion was abused." Hood v. State , 292 Ga. App. 584, 587 (6), 666 S.E.2d 674 (2008).

The record here shows that while the jury was deliberating, the jurors sent the following note to the trial court: "Your Honor, We would like the definitions of the charges (18 pg document)[.] Also we would like the map display." At issue here is how the trial court handled the request for the "definitions of the charges." After discussing the request with the attorneys, the trial court informed counsel, "I'll just read the charges to them again slowly and carefully. All right?" There were no objections to the court's decision.

The trial court brought the jury into the courtroom and addressed its questions. The court first reminded the jury that three offenses were charged in the indictment: aggravated assault, terroristic threats, and a violation of the Georgia Street Gang Terrorism and Prevention Act. The court then stated:

"I'm going to slowly and carefully define those offenses for you." The trial court recharged the jury as to elements of a crime, the State's burden of proof, and the definitions of the charged offenses. The court repeatedly stopped to ask the jurors whether the recharge was helpful, whether the jurors felt they had grasped one concept before the court continued to another concept, and whether the jurors understood certain concepts, to which jurors each time responded affirmatively. At the conclusion of the recharge, the trial court stated, "I think I've answered your questions. You may return and deliberate." The jurors did not request additional charges or state that they needed any additional information.

After the jurors returned to deliberate, the trial court asked counsel whether counsel had any concerns or objections. Torres's counsel stated:

As I understood the question, they were asking about the 18-page document. My understanding was that the Court was going to read the same thing that you read to them in [the full jury] charge, rather than just the charges themselves. That's kind of what I perceived that they wanted[.]

The court responded:

I respectfully disagree, and I told y'all ahead of time what I was going to do, and there was no issue, and this is sort of an after-the-fact objection, as far as that's concerned. The jurors made reference to an 18-page document, and the reason they did was because I told them during the [full jury] charge, this is going to take awhile, this thing's 18 pages long, but their question was more specifically targeted at definition of the crimes, which is what they asked for and that's what they got, so I don't think I'm required to give them more than what they asked for, but if they had asked for what you're asking for, I certainly would've given it to them. So your exception is noted and overruled.

Torres argues on appeal that the jurors’ note requested a complete recharge of all the jury instructions and not simply a recharge of the definitions of the offenses. We disagree. Although the jurors’ note contained a parenthetical reference to the "18-page document" that comprised all jury instructions, the note specifically requested "the definitions of the charges." The trial court recharged those definitions and repeatedly ensured that the jurors understood the recharge. In addition, at no point did the jurors ask for additional instructions either during or after the recharge.

Where the jury, after having been charged by the court, returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the specific point suggested by the jury's inquiry. It is within the court's discretion to recharge the jury in full or only upon the point or points requested.

Dyer v. State , 167 Ga. App. 310, 311 (3), 306 S.E.2d 313 (1983) (citations and punctuation omitted). Here, "the jury asked for a charge upon a specific point [- the definitions of the offenses -] and the jury was charged upon that point." Id. (citation and punctuation omitted). Moreover, Torres elaborates no arguments suggesting that the recharge, as a whole, was an incorrect statement of the law or that it would mislead a jury of ordinary intelligence. See Maynard v. State , 355 Ga. App. 84, 88-89 (3), 842 S.E.2d 532 (2020). Accordingly, the trial court did not abuse its discretion, and this enumeration of error fails.

2. Torres next asserts that his trial counsel rendered ineffective assistance by failing to file a general demurrer to the terroristic threats count of his indictment. The trial court found that trial counsel was not ineffective in this regard. We conclude that the trial court did not err in denying Torres's motion for a new trial on this ground. See Hulett v. State , 296 Ga. 49, 60 (5), 766 S.E.2d 1 (2014) (an ineffective-assistance claim is a mixed question of law and fact, and we accept the trial court's factual findings unless clearly erroneous and independently apply the law to those facts); see also Strickland v. Washington , 466 U. S. 668, 698 (IV), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to establish that his trial counsel was constitutionally ineffective, Torres must show that his attorney's performance was deficient and that he was prejudiced by the deficient performance. Strickland , 466 U.S. at 687 (III), 104 S.Ct. 2052. "Under the first prong of this test, counsel's performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms." Manner v. State , 302 Ga. 877, 881 (II), 808 S.E.2d 681 (2017). To meet the second prong, there must be a reasonable probability that, absent counsel's errors, the outcome of the trial would have been different. Id. at 881-882 (II), 808 S.E.2d 681. Torres must satisfy both prongs of the Strickland test, and if he is unable to satisfy one, we need not examine the other. Davis v. State , 306 Ga. 140, 144 (3), 829 S.E.2d 321 (2019). Here, Torres failed to establish deficient performance.

"A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime, and it should be granted only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law." Poole v. State , 326 Ga. App. 243, 247 (2) (a), 756 S.E.2d 322 (2014) (citation and punctuation omitted).

An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it states the offense in the terms and language of [the Georgia] Code or so plainly that the nature of the offense charged may easily be understood by the jury. In other words, if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

Stokes v. State , 355 Ga. App. 565, 569 (1) (b), 845 S.E.2d 305 (2020) (citation and punctuation omitted). This Court reviews de novo whether the allegations in the indictment are legally sufficient to withstand a general demurrer. See id.

Torres contends that his trial counsel should have filed a general demurrer to Count 4 of the indictment – the terroristic threats charge – because the indictment did not name a specific victim in that count. "[T]he essential elements of terroristic threats and acts are: (1) a threat to commit any crime of violence (2) with the purpose of terrorizing another."¹ Poole , 326 Ga. App. at 247 (2), 756 S.E.2d 322 (citation and punctuation omitted). The constitutional purpose for identifying the victim is to apprise the defendant of the charges against him. State v. Grube , 293 Ga. 257, 260 (2), 744 S.E.2d 1 (2013). We conclude that the terroristic threats count in this case was not fatally defective for failing to specify the names of the victims.

Count 4 of the indictment charged Torres with the offense of terroristic threats in that he, on July 25, 2015, "did unlawfully threaten to commit a crime of violence to persons attending a party at 9037 Campbellton Street by threatening to shoot them, with the purpose of terrorizing...