Petition for Writ of Certiorari — Orlando Ramirez, Petitioner v. Georgia

In the Supreme Court of Georgia

Decided: March 5, 2018

S17A1662. RAMIREZ v. THE STATE.

GRANT, Justice.

Orlando Ramirez appeals his convictions for malice murder, attempted

murder, and other crimes associated with a shooting in which Bruno Rodriguez

was killed and Daniel Maldonado-Flores was injured. In his sole enumeration

of error, Ramirez argues that the trial court erred in excluding evidence of other

incidents of criminal activity at the bar where the shooting took place. We

disagree, and therefore affirm.'

1

The shootings occurred on March 23, 2014. On May 29, 2014, Ramirez was indicted by

a Whitfield County grand jury for malice murder of Rodriguez (Count 1), felony murder

predicated on aggravated assault of Rodriguez (Count 2), aggravated assault by shooting

Rodriguez with a gun (Count 3), attempted murder of Flores (Count 4), aggravated assault

by shooting Flores with a gun (Count 5), and two counts of possession of a weapon during

the commission of a crime (Counts 6-7). At the conclusion of a jury trial held December

15-19, 2014, Raiiirez was found guilty on all seven counts. The trial court sentenced

Ramirez to imprisonment for life without parole for Count 1; 30 years consecutive for

Count 4; 5 years for Count 6, to be served consecutively to the sentence for Count 1 and

concurrent with Count 4; and 5 years for Count 7 consecutive to Count 4. The remaining

counts were merged or vacated by operation of law. See Green v. State, 283 Ga. 126, 130

(657 SE2d 221) (2008). On March 5, 2015, Ramirez filed a motion for new trial, which he

amended on June 6, 2016, after the appearance of new counsel. Following a hearing, the

trial court denied the motion for new trial on August 30, 2016. Ramirez filed a timely

I.

Viewed in the light most favorable to the verdicts, the evidence admitted

at trial showed that in the early morning hours of March 23, 2014, Rarnirez

arrived atLas Delicias bar with his friend Fernando Resendiz andtwo others.

Resendiz stayed in the I caf texting while Ramirez took Resendiz' s .380 pistol

from the console, and attempted to enter the bar. Flores, who was working as

a security guard checking identification at the door, blocked, Ramirez' s entry

and asked for his identification: Ramirez first showedFiores.a picture of Santa

Muerte (Holy Death), and said in' Spanish, "it's death." Flores.- again, asked for

Ramirez's identification, which Ramirez; then produced; showing t that hewas

20j years: old. .Flores refused Ramirezentryuinto the bar...for being underage.

Rarnirezbegan'shouting. at Flores;took a step back, pulled out a gun, and

pressed it against F'1ores' s chest'. Fibres: grabbed Ramirez' s hand :and the two

men wrestled for the 'gun, vhich discharged into 'F1oresleg. Thestrugg'ie for

the.. gun: continued into the parking lot and the gun discharged; a second time,

striking no one. Florès felL: to the ground and another, security guard,

Rodriguez, rushed towards Ramirez. Rodriguez tried:.toget the gun-from

notice- of appeal on. September 29; 2016, and the case was dodketed' in this Court to the

August .2017 term and sUbmitted fora decision' on the bHefs..

2

Ramirez, but Ramirez shot him; Rodriguez immediately collapsed. Ramirez

then shot Rodriguez a second time, killing him. After 'shooting Rodriguez,

Ramirez walked toward Flores,. who ;was .on his knees in the parking. lot.

Ramirez nonetheless shot him in the back. Flores managed to get up and run,

away, but Ramirez briefly chased him around a truck while pointing his' gun at

him. Ramirez then gave up the chase and attempted (unsuccessfully) to enter

the front door of the bar before leaving the. property on foot. 'Security cameras

at the bar captured all but the initial 'interaction between Ramirez and Flores,

which was blocked from view by the open door of the bar.' The recording from

the security cameras was'piayed for the jury at trial.

..

,

Resendiz, who had driven away when the gunfire began, returned to the

bar. and picked .up Ramirez Two other passengers' in the car testified that

Ramirez seemed excited, .exclaimedthathe' wished he had had more bullets,

threatened the passengers' families if they told police, and said that. he was

happy about what.h'appened because the security guard "deserved it." Ramirez

It

said 'that his brother had been "jumped" at Las 'Delicias and a security, guard

had left hirnlying.there.2

2 As noted below, trial testimony showed that Ramirez's brother had been badly beaten by

other bar patrons during a fight at Las Delicias the month before the shooting in this case.

3

Ramirez testified at trial and claimed that he shot Flores and Rodriguez

in self-defense. Ramirez testified that when Flores initially approached him;

Flóres was in an aggressive posture and seemed angry a1ready. Ramirez started

to back away, he said but felt threatened by the crowd of people around him,

who .were 'purportedly holding bottles 'atid .moving toward him. "Ramirez

claimed that he moved back in the direction of Flores,' who raised his hands

"like he was going to comet at". Ramirez and then rushed toward Ramirez. and

grabbed his left arm. Ramirez pulled out. the .380 "almost without thinking,":

and Flores immediately grabbed his hand. Ramirez testified that Flores, rather

than trying to secure the. 'gun,.: was pushing it 'against Rarnire.z's chest and

saying, 'You are going to.see." Ramirez claimed that he was just trying to get

away from Flores, but accidentally fired the fi'rst.shot while- trying to pull free

He ãdrnitted to.shooting .Flores a second: time, :butclaimed..thát it was because.

Flores was still attacking. Ramirez also admitted that he shot Rodriguez twice;

sáying;.th'at his first .shotwas. instinctive'when :Rodriguez appeared as a "black

shadow" rushing toward hi in". 'According to' Ramirez's testimony, the second

shot .oCcurred either after ;Rodriguez 'crashed into" him, or ältèmàtively., while

Rodriguez 'was in mid-air."

Although Ramirez does not challenge the sufficiency of the evidence

supporting his convictions, it is our practice in 'murder cases to review .the

record and determine whether the evidence was legally, sufficient under the

standard set out in Jackson v. Virginia, 443 U.S307 (99 SCt 2781, 61 LE2d

560) (1979). We have done so, and we conclude that the evidence introduced

at-trial and summarized above was legally sufficient to authorize a rational trier

of fact to find beyond a reasonable doubt that. Rarnirez was guilty of the crimes

for which. he was convicted. See id. at 319. :

II.

•.:.

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Ramirez claims error in the trial court's ruling, excluding evidence 'of

other incidents of criminal - activity at Las Deliias bar. He sought to introduce

police testimony about ten incidents at 'Las Deliciasbetween November 2010

and April 2014,.. including. one.case of cocaine possession; -several, bar fights,

including 'instances" in which other bàr security guards---not Flores or.

Rodriguez—tased or peppet sprayed fractiouspatrons; a robbery in the bar's

restroom;l a shot fired (without.. injury) 'in the parking lot after hours; and one

occasion in which Rodriguez 'was cited, for admitting 'an individual into the bar

without first checking his identification. We find no error in the trial, court's

exclusion of the proffered evidence.

5

Ramirez argues that the evidence at issue is relevant, and that it should

be assessed under the framework of cases governing Terry stops, in which the

fact 'that an area is known' t0 have a high crime rate- may be relevant in

determining whether police reasonably suspected that the defendant was

engaged in criminal activity. That, contention' is plainly incorrect. The

reasonableness of a police officer's suspicion of criminal activity is a wholly

different matter from a-defendant's belief that he is in danger of being killed

or severely injured unless he uses dadly force .to defendhimself. The State,

for. its part, 'counters. that to the 'e*tent the violent "character" of the bar is

relevant to Ramirëz' s elf-defeiise. c'lairn, evidence of that-' character should be

limited to general reputation or-opinion;'evidence under 'the.rules governing the

admissibility -of a victim's 'reputation for violence in a self-defense case. 'See

OC.GA.

24-4-4O4 a) (2);' 244-405';-(a).-...The State's analysis, also .fail's..to

provide-•a useful comparison. To begin, a place cannot 'be a victimc.. And the

reputation of a place is not "character evidence"-. subject tO the same rules as

evidence of a witness's 'Character or propensity for violence.

I

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'See Terry v. Ohio, 392 U.S'; 1 (88 SCt 1868, 20 LE2d 889) (1968).

6

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Instead, as with many evidentiary decisions under Georgia's current

Evidence Code, determining the admissibility, of the evidence of. other.

incidents Ramirez sets out involves the familiar ., process of weighing its

probative value against the prejudice,: confusion, or waste of time likely to

result from admission. As -a general rule, "[a]ll relevant evidence [j]

admissible." OCGA § 24-4-402. Evidence is relevant if it has "any tendency

to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it, would be ; without the

evidence." OCGA § 24-4-401. Even relevant evidence may be excluded,

however, "if its probative, value is substantially outweighed by the danger-, of

unfair prejudice, confusion of the issues, or misleading the jury or by

,

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considerations: of undue delay, waste of time, or needless presentation of

cumulative eviden.ce;.?' OCGA. § :24-4-403 We review4he •triai••courts ru1ing

on the admissibility .of evidence for a clear abuse of discretion. Davis v. State;

301 Ga. 397, 399(801 SE2d 897) (2017).

Ramirez sought to show that the dangerous, violent environment at Las

Delicias influenced his state of mind and made his extreme reaction to

perceived threats from Flores and Rodriguez reasonable under the

circumstances. See OCGA § 16-3-21 (deadly force justified only if a person

7

"reasonably believes that such force is necessary to prevent death or great

bodily injury to himself'). Ramirez does not contend that he knew about any

of the' proffered occurrences at the time of the shooting; nevertheless, he argues

that the specific instances of criminal activity at the bar should have been

admitted to' show the, jury,that-:-his peiception of danger at the bar was

reasonable, it is difficult to, see, however, 'how the occurrence of events of

which. Ramirez had no knowledge could be relevant to hisstate of mind on;the

night .of the. shoOting,' or how they could have, influenced his sense of.

...

immediate danger. from a 'bar employee chéck.ing. identification -at 'the front

door. Only three of the 'incidents involved, eith.er;of the security: guard victims,

Flores or.Rodriguez: in, addition' to .the, citation for,. ,failure 'to; check

identification, Rodriguez assisted in evicting. an: individual who, was harassing

two. bars employees,., oni One.7occasion, and-on, another occasion; a barcustorner,

hit,-Flores on the head with a bottle. But none of.the' incidents shows a

propensity .for violence in; either,-of the victims. Nor ,do'. they tend to make it

more likely that Ramirez reasonably believed that deadly force was necessary

to defend hithselfagainst Floresor Rodriguez." .The probative value: of this

evidence. would 'be 'remarkabJy small even if Ramirez ha& alleged that he was

aware of the: incidents at ,the time 7of , the murder.-,F But without such an

allegation, the evidence fails to clear even the low hurdle of relevance under

Rule 401.

Moreover, to the extent that the bar's reputation for violent incidents

influenced Ramirez's state of mind, that reputation and its effect on Ramirez

was well established through other evidence admitted at trial. Ramirez testified

that although he had never been to Las Delicias before the, night of the shooting,

he had heard that the bar was a violent place, and that gang fights, drug use,

and corrupt. security guards were commonplace there.. Ramirez was a member:

of the Surenos gang, and.he testified that he was aware that a rival gang, the

Tiny Winos, often went to LasD:eiicias and liked tO"pick fights" None of the

other witnesses who addressed the issue denied that the bar was a violent place,

such that evidence of specific instances of violence could be relevant for

impeachment purposes. To the:. contrary, Flores testified that bar fights., and

patrons throwing or hitting others with bottles were frequent events. One

police detective testified that members of the Surenos and the Tiny Winos

gangs were often preséñt at Las Delicias, and another: detective testified .that

Rarnirez's brother had been hospitalized after being badly beaten at the bar the

monthheforeth& shooting. Thus,. even if the proffered incidents had some

marginal relevance td Ramirez' s self-defense claim, any slight probative value

was "substantially outweighed by.

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considerations of.. waste of time [] or

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needless presentation of cumulative evidence," and the trial court acted within

its discretion in excluding the evidence. OCGA § 24-4-403.

Judgment affirmed. All the Justices concur, except Melton, P.J., and

Blackwell, J., who concur in judgment only in Division 2.

In