Petition for Writ of Certiorari — Navarrete v. Georgia (No. 07-1487)

urt, U.S.

Supreme Co

FILED

i oping may 27 208

No. 07-

OFRCE CEIHE CLERK

In The

Supreme Court of the Anited States

¢

MARIO NAVARRETE,

Petitioner,

V.

STATE OF GEORGIA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Georgia

S

PETITION FOR A WRIT OF CERTIORARI

EDWARD C:. DAWSON

Counsel of Record

GREGORY S. COLEMAN

YETTER, WARDEN &

COLEMAN LLP

221 West Sixth Street

Suite 750

Austin, Texas 78701

(512) 533-0150

Counsel for Petitioner

Mario Navarrete

COCKLE LAW BRIEF PRINTING CO. (500) 225-6964

OR CALL COLLECT (492) 342-2831

QUESTION PRESENTED

Whether the Supreme Court of Georgia erred in

concluding, contrary to decisions from the Fourth,

Fifth, Sixth, and Seventh Circuits, that there was no

prejudice from counsel's failure to contact, investi-

gate, or call witnesses whose testimony was crucial to

establishing the defense’s theory of the case, and

would have crucially bolstered the defendant’s own

testimony at trial.

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PARTIES TO THE PROCEEDING

The petitioner is Mario Navarrete, the defendant

and defendant-appellant in the courts below. The

respondent is the State of Georgia.

iil

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved.............. ieee 3

SSCRIES OE SIND SOGID cacivsnessnnscasesscsicicsdcsennesrsnnscnces 3

Reasons for Granting the Writ..................:c.ccceee sees 10

I. The Georgia Supreme Court Erred In

Concluding There Was No Prejudice From

Counsel’s Failure To Contact Witnesses

Whose Testimony Would Have Supported

the Central Defense Theory of the Case..... 10

A. Trial Counsel’s Performance Was Defi-

B. Trial Counsel’s Deficient Performance

Prejudiced the Defense.......................6 14

C. The Georgia Supreme Court’s Ruling

Conflicts With Rulings From Federal

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TABLE OF CONTENTS - Continued

Page

APPENDIX

APPENDIX A: Opinion of the Supreme Court

of Georgia (January 28, 2008) ..............c eee App. 1

APPENDIX B: Order of the Superior Court of

Muscogee County, State of Georgia, denying

Defendant’s Motion for a New Trial (January

i NE rissa ccgadcacevestsivtas sek kcbbencianiiaaeivekeiaians App.

APPENDIX C: Order of the Supreme Court of

Georgia, denying Motion for Reconsideration

CIT Bey WP iesisinasscisscccisastaidonsscrstsciseic App.

APPENDIX D: In the Superior Court of Mus-

cogee County, State of Georgia, Motion for

New Trial Hearing Transcript Excerpt (De-

II A) osc scnsbvcvinesniessccecncsvesksasnecses App.

APPENDIX E: In the Superior Court of Musco-

gee County, State of Georgia, Trial Tran-

script Excerpt (January 24, 2006)................. App.

APPENDIX F: In the Superior Court of Musco-

gee County, State of Georgia, Jury Verdict

SS ie. OE osieciciiccendasasncananiodeden App.

APPENDIX G: In the Superior Court of Musco-

gee County, Georgia, Final Disposition (Janu-

BT oaks swkdics chases sitenonsiavinkubgotiastauanies App.

14

16

17

42

76

77

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Johnson, 338 F.3d 382 (5th Cir.

RINIET oi icrritalenin uiscunths sagenedidin inicascenshemaianies aa AR aNd eAa 12,18

Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994)............. 13

Code v. Montgomery, 799 F.2d 1481 (11th Cir.

ERS iiicthnsss ike ia ticketed ici ea teal dasiadhabasluaakuaadgdeas wa vaowamaies 13, 18

Griffin v. Warden, Maryland Corr. Adjustment

Cér., 970 F.2d 1355 (4th Cir. 1992)............000sc00 passim

Harris v. Reed, 894 F.2d 871 (7th Cir. 1990)........ 13, 20

Harrison v. Quarterman, 496 F.3d 419 (5th Cir.

BT ir sulsiomeiinicaiaaand 11, 17, 18, 19, 20

Richardson v. State, 189 Ga.App. 113 (1988)...... 14, 18

Stapp v. State, 273 Ga.App. 899 (2005)..,................0. 15

Stewart v. Wolfenbarger, 468 F.3d 338 (6th Cir.

PETA i is tsisisnd binds cackeun iene aasulesaneedabavanig ea vaaomsenaeia passim

Strickland v. Washington, 466 U.S. 668 (1984).... passim

Tenorto v. State, 261 Ga.App. 609 (2003)................... 13

Towns v. Smith, 395 F.3d 251 (6th Cir. 2005)...... 13, 20

Washington v. Smith, 219 F.3d 620 (7th Cir.

BP isiviccckiciccsudacrsasestandcotenteaiacsteehiads eae 20

White v. State, 216 Ga.App. 583 (1995).......... ee 7

CONSTITUTIONAL. PROVISIONS, STATUTES, AND RULES

I re EG svusinv nda ssccntavecansassjeavansbecuenciseeeueee 2

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INTRODUCTION

This Court should grant certiorari to restore

uniformity in the interpretation of its ineffective-

assistance standard in the context of failures by

counsel to contact important defense witnesses that

support the defense’s theory of the case, and bolster

the defendant’s credibility when his credibility is a

crucia! issue. The Georgia Supreme Court erred in

holding that petitioner, Mario Navarrete, was not

prejudiced by his trial counsel’s deficient performance

in failing to contact, investigate, or call witnesses

Navarrete had asked him to contact, whose testimony

could have supported Navarrete’s defense theory and

bolstered his credibility. Navarrete was convicted of

murdering Richard Davis, despite there having been

no evidence that he stabbed Davis, and substantial

evidence that he tried to stop Davis from being

stabbed on the mght of the murder. The evidence

supporting Navarrete’s guilt was entirely circumstan-

tial, and the evidence about Navarrete’s conduct on

the night of the murder was equivocal.

The most damaging testimony in the State’s case

against Navarrete was an Army medic’s hearsay

testimony about a prior incident in Iraq during which

Navarrete allegedly had tried to kill Davis. Navar-

rete’s trial counsel, who was sick with cancer during

the trial, failed to contact two witnesses Navarrete

had asked him to contact. If counsel had contacted

those witnesses, he would have uncovered testimony

that directly rebutted the medic’s hearsay account

about the prior events in Iraq, and supported the

2

defense’s theory that on the night of the murder

Navarrete had not tried to murder Davis, but had

tried to stop him from being murdered.

The Georgia Supreme Court concluded that

counsel’s conduct could not have prejudiced the

defense. In so holding, it contradicted the rulings of

federal courts that have held that counsel’s perform-

ance is deficient when counsel fails to call witnesses

whose testimony is central to the defense’s theory of

the case, and would bolster the defendant’s credibility

when his credibility is a central issue in the case. The

Court should grant certiorari to correct this discrep-

ancy between Georgia’s and federal courts’ interpreta-

tion of the constitutional standard for ineffective

assistance of counsel.

OPINIONS BELOW

The opinion of the Supreme Court of Georgia

below is unpublished, and reproduced in the appendix

to the petition. App. 1.

JURISDICTION

The Supreme Court of Georgia entered its judg-

ment on January 25, 2008. That court denied Navar-

rete’s timely rehearing petition on February 25, 2008.

This Court has jurisdiction pursuant to 28 U.S.C. §1257.

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3

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused

shall enjoy the right ... to have the Assis-

tance of Counsel for his defence.

U.S. Const. amend. VI. The Sixth Amendment is

applicable to the states through the Fourteenth

Amendment.

STATEMENT OF THE CASE

Mario Navarrete, Richard Davis, and five other

men, Alberto Martinez, Jacob Burgoyne, Douglas

Woodcoff, Gregory Pruitt, and Ricardo Rodriguez,

were soldiers in the Third Infantry Division who

served together in Iraq and Kuwait. App. 2. Shortly

after the men returned to Fort Benning from Iraq,

Richard Davis was murdered on a night when the five

men went out drinking together. According to the

uncontested testimony at trial, Martinez stabbed

Davis to death, while Navarrete tried to stop the

murder by begging Martinez not to stab Davis, taking

a knife from Martinez, and urging Martinez to drive

Davis to a hospital. App. 50-61.

Soon after their unit returned to Fort Benning in

July 2003, Navarrete, Davis, Martinez, Burgoyne,

and Woodcoff went out in Columbus for a night of

4

drinking, with Martinez driving them in his car. App.

2. The group went to a restaurant and then a club.

Id. At the club, on the way out to the car, Burgoyne

assaulted Davis, and continued assaulting him in the

car. App. 3. Navarrete, too, shoved or punched Davis

either outside the bar or in the car soon after leaving

the club. Jd. According to Navarrete, Davis had

slumped onto him in the car, and he had shoved

Davis to get him off of him. His shoves or punches

(unlike Burgoyne’s) stopped before Martinez stopped

the car where Davis was murdered, however, and also

stopped short of any attempt to seriously harm Davis.

App. 51.

From the club, Martinez drove the car to a field,

where the group got out, and Martinez then stabbed

Davis to death. App. 3, 53-54. According to all three

witnesses, including the State’s witnesses, Navarrete

repeatedly tried to stop the murder. Before Martinez

stabbed Davis, Navarrete argued and pleaded with

Martinez not to stab Davis and took a knife away

from Martinez; after Martinez got another knife and

stabbed Davis for the first time, Navarrete pleaded

with Burgoyne to stop Martinez and with Martinez to

stop and to take Davis to a hospital. App. 3, 49, 51-

53, 55, 56, 57-59, 60-62. Instead, however, Martinez

stabbed Davis multiple times. Martinez and Bur-

goyne then dragged Davis into the woods, drove to a

gas station,_beught_hehter thud —returned—_to the—

scene, and set the body on fire. App. 3-4, 58-59, 62.

5

Navarrete had no part in those actions, but stayed in

the car. Id.

Martinez, Burgoyne, and Navarrete returned to

the scene four days after the murder, and Martinez

and Burgoyne, using supplies Martinez had procured,

buried Davis’s body. App. 4. Navarrete testified he

went unwillingly, out of fear of Martinez and Bur-

goyne. App. 63-65. Davis’s body was discovered

months later. Burgoyne pleaded guilty to voluntary

manslaughter, robbery, possession of a knife, and

concealment of a body; Woodcoff pleaded guilty to

concealment of a body; both men testified as State’s

witnesses at trial. App. 2 n.2. Navarrete stood trial

with Martinez. He was charged with malice murder,

felony murder with aggravated assault as the predi-

cate felony, aggravated assault, armed robbery,

possession of a knife, felony murder, and concealment

of a body.

At trial, the primary testimony that Navarrete

had «ver shown any intent to seriously harm Davis

came from army medic Edward Wulff, who testified

over defendants’ objections about hearsay statements

Davis supposedly made when Davis, Wulff, and the

defendants were serving together overseas. App. 5.

Wulff stated that Davis had come to him one night

shortly before the unit returned to the U.S. for treat-

ment of a cut on his hand and told him that Davis

had been drinking with Martinez and Navarrete on a

hill near the base where the unit was stationed, that

thev had both assaulted him, and that because of the

assault Davis feared for his life. App. 47-48. Wulff

6

testified that Davis was intoxicated when Wulff

treated him, and that for that reason he did not

believe Davis’s story when he heard it. App. 6, 66-67.

Navarrete, who testified later during the trial,

gave a different version of the events of that night on

the hill. App. 63-66. He testified that Davis had cut

his hand during a “blood brothers” ritual, at which

were present two other soldiers named Pruitt and

Rodriguez. Jd. Navarrete had told trial counsel

during the investigative stage of the defense that

Pruitt and Rodriguez were witnesses who could offer

helpful testimony, yet trial counsel did not try to

locate them, interview them, or investigate their

testimony in any way prior to trial.’ App. 28-30.

Further, despite Navarrete’s testimony at trial that

those witnesses were present on the hill and specifi-

cally could have rebutted Wulff’s testimony, trial

counsel still did not try to locate them or call them to

testify at trial. App. 28-30. In fact, trial counsel called

no defense witnesses at all besides Navarrete himself.

Ironically, Pruitt was present in the courthouse while

the trial was going on, subpoenaed by the prosecution

and sequestered outside the courtroom. App. 40-41.

' Counsel could not remember whether Navarrete specifi-

cally mentioned to him during the investigation that Pruitt and

Rodriguez had been present for the hill incident. App. 28-29.

Counsel stated he had probably been given a copy of Wulff’s

statement to investigators, but could not remember having read

it. App. 26-30; New Trial Hearing Transcript 69-73, 78-80.

Wulff’s hearsay testimony about Navarrete’s

actions on the hill, along with Navarrete’s accompa-

nying Burgoyne and Martinez when they went to hide

the body, were the two major themes of the prosecu-

tion’s case against Navarrete. The prosecution heav-

ily emphasized Wulff’s testimony in its closing as

evidence that Navarrete was guilty of conspiring with

Martinez to kill Davis, mentioning it five separate

times. App. 67-69, 69-72, 73. The prosecution specifi-

cally noted Wulff’s testimony had not been im-

peached. App. 68-70. Finally, in rebuttal closing, the

prosecution focused on the defense’s failure to call

Pruitt and Rodriguez as showing that Navarrete lied

about how Davis injured his hand: “Why didn’t they

call Pruitt? ... Why didn’t they call Rodriguez? ...

Why, because it wasn’t the truth.” App. 74-75. The

jury acquitted Navarrete of malice murder and armed

robbery, hut convicted him of aggravated assault,

possession of a knife, felony murder, and concealment

of a body. App. 1.

New appellate counsel agreed to represent

Navarrete, and moved for a new trial, on the grounds,

inter alia, of ineffective assistance of counsel. The

defense motion for new trial cited Strickland v. Wash-

ington’s standard for ineffective assistance claims,

which is materially identical to the Georgia state-law

standard for such claims. Am. Mot. New Triai at 5;

White v. State, 216 Ga.App. 583, 583 (1995) (“There

exists no substantial difference in the legal standard

to be employed in resolving claims of ineffective

8

assistance of counsel under the United States Consti-

tution and under the Georgia Constitution of 1983.”).

At the new trial hearing, the defense presented

three witnesses. The first defense witness was trial

counsel’s doctor, who testified that during the time

leading up to trial and during trial he had been

tresting Navarrete’s counsel for cancer with chemo-

therapy. App. 18-21. The doctor testified that his

notes showed that during the time of trial, trial

counsel was suffering from “hand-foot syndrome,” a

side effect of chemotherapy that causes blistering and

peeling of the skin on the hands and feet, the possible

effects of which include loss of concentration and

inability to focus. App. 10-11, 19, 21. The second

witness was Navarrete’s trial counsel. He testified

that, during trial, his concentration and focus were

impaired by his ongoing chemotherapy. App. 11, 24-

26. He testified that during his investigation Navar-

rete had told hira about Pruitt and Rodriguez and

asked him to contact them as witnesses, but that he

failed to do so or to investigate their testimony in any

way, because he simply forgot. App. 22-25. He further

testified he had not called or attempted to contact

them during trial, even after !’avarrete testified that

the two men were present at, and would have contra-

dicted Wulff’s hearsay account of, the incident on the

hill. App. 22-25, 27-30. Finally, he testified that his

* Trial counsel is no longer representing Navarrete.

9

decisions not to investigate or call the witnesses were

oversights, not strategic decisions. App. 27-29.

The final defense witness was Sgt. Gregory

Pruitt. Sgt. Pruitt testified that he had been with

Davis, Martinez, Navarrete, and Rodriguez on the

hill near the base on the night Davis hurt his hand.

App. 31-41. He testified, as had Navarrete, that

Davis, Martinez, and Navarrete were performing a

‘blood brothers’ ritual, during which Davis cut his

hand too deep. App. 35-37. He also testified that

Martinez had assaulted Davis that night and that

Navarrete had stepped in to try and stop the assault.

App. 35-37. Finally, he testified that he had not

previously told his story to anyone because no inves-

tigator or prosecutor had asked him about the events

on the hill. App. 39. The State’s evidentiary presenta-

tion at the new trial hearing was devoted largely to

attacking Sgt. Pruitt’s credibility, by arguing that he

had not previously told his story to investigators. The

trial court overruled the motion for new trial.

On appeal, Navarrete argued ineffective assis-

tance of counsel, error in the admission of the hear-

say testimony of Medic Wulff, and insufficiency of the

evidence. Once again, Navarrete cited Strickland v.

Washington in support of his ineffective assistance

argument, and his reply brief cited several federal}

cases demonstrating that counsel’s conduct was

prejudicially deficient under the Strickland standard.

Br. of Appellant at 10; Reply Br. of Appellant at 8-12.

10

The Supreme Court of Georgia concluded that

there was sufficient evidence to support the convic-

tions. App. 5. It held that the admission of Medic

Wulff’s testimony was error, but was harmless under

the circumstances. App. 6-10. Finally, on the issue of

ineffective assistance, the court ruled that counsel’s

conduct had not prejudiced the defense, because “the

testimony would not have exonerated him,” and

because there were some contradictions between

Pruitt’s story and Navarrete’s. App. 12. It did not

address the question whether counsel’s performance

had in fact been deficient. Jd. The court’s opinion,

like the appellant’s submissions, applied the Georgia

interpretation of the Strickland standard for evaluat-

ing ineffectiveness claims. App. 10, 13.

+

REASONS FOR GRANTING THE WRIT

I. The Georgia Supreme Court Erred In

Concluding There Was No Prejudice From

Counsel’s Failure To Contact Witnesses

Whose Testimony Would Have Supported

the Central Defense Theory of the Case.

During the trial of this case, trial counsel was

undergoing chemotherapy. As he testified at the new

trial hearing, the chemotherapy treatment caused

him to suffer loss of concentration, loss of short-term

memory, drowsiness, and dizziness leading up to and

during Navarrete’s trial. App. 22-24. His doctor

confirmed that these were possible consequences of

the “hand-foot syndrome” counsel was suffering

11

during that time. App. 19-20. Counsel’s ill health

appears to have been noticed by the trial court, who

during counsel’s cross-examination of key witness

Jacob Burgoyne offered counsel the option of sitting

to finish the examination “given the circumstances.”

App. 59-60.

Trial counsel’s ill health led him to err by not

calling a crucial witness, Gregory Pruitt, whose

testimony could have undermined or altogether

excluded the State’s most incriminating evidence

against Navarrete, the testimony of Edward Wulff,

and who could have bolstered Navarrete’s credibility.

That error constituted defective performance that

prejudiced Navarrete’s defense and required revers-

ing the convictions. See Strickland v. Washington, 466

U.S. 668 (1984); Harrison v. Quarterman, 496 F.3d

419, 427 (5th Cir. 2007); Stewart v. Wolfenbarger, 468

F.3d 338, 356 (6th Cir. 2006). The Georgia Supreme

Court, however, erroneously concluded that there was

no prejudice from counsel’s failure to contact Pruitt, a

decision in conflict with the rulings of federal circuit

courts that have found prejudice when counsel fails to

contact witnesses whose testimony was central to the

defense’s theory of the case. See Harrison, 496 F.3d at

427 (“Our sister circuits have held that counsel

prejudices his client’s defense when counsel fails to

call a witness who is central to establishing the

defense’s theory-of-the-case, and the jury is thereby

allowed to draw a negative inference from that wit-

ness’s absence. We agree.” (citations omitted)).

12

A. Trial Counsel’s Performance Was Defi-

cient.

Although the Georgia Supreme Court did not

consider whether trial counsel’s performance was

deficient, it clearly was. Trial counsel failed to call

witnesses who would have corroborated Navarrete’s

testimony and contradicted Wulff’s hearsay testi-

mony about what happened on the night when Davis

hurt his hand, testimony the State pointed to as

proving that Navarrete had prior murderous intent

towards Davis. Counsel acknowledged that Navarrete

told him those witnesses would offer helpful testi-

mony, and that he simply forgot to contact them,

investigate their testimony, or subpoena them to the

trial. He further testified that he did not attempt to

call either man at trial even after Navarrete testified

that the two men were present on the night when

Navarrete had allegedly assaulted Davis and could

testify that he had not assaulted him. In both cases,

counsel testified, those omissions were oversights, not

strategic decisions. That is deficient performance.

See, e.g., Stewart, 468 F.3d at 356 (“Where counsel

fails to investigate and interview promising wit-

nesses, and therefore has no reason to believe they

would not be valuable in securing defendant’s release,

counsel’s inaction constitutes negligence, not trial

strategy.” (quotation, citation, and internal marks

omitted)); Anderson v. Johnson, 338 F.3d 382, 393

(5th Cir. 2003) (complete failure to investigate

witness, for no strategic reason, was unreasonable

and deficient); Griffin v. Warden, Maryland Corr.

13

Adjustment Ctr., 970 F.2d 1355 (4th Cir. 1992); Harris

v. Reed, 894 F.2d 871, 878 (7th Cir. 1990) (failure to

call witnesses that would have “greatly aided {defen-

dant’s] case” was ineffective assistance); Code v.

Montgomery, 799 F.2d 1481, 1484 (11th Cir. 1986)

(ineffective assistance in failure of counsel to investi-

gate testimony of two alibi witnesses suggested by

defendant).

Indeed, there could have been no strategic reason

not to at least investigate Pruitt and Rodriguez’s

testimony, because counsel had no reasonable basis to

think they would be unhelpful. Jowns v. Smith, 395

F.3d 251, 258 (6th Cir. 2005) (“This duty [to investi-

gate} includes the obligation to investigate all wit-

nesses who may have information concerning his or

her client’s guilt or innocence.”); Bryant v. Scott, 28

F.3d 1411, 1415 (5th Cir. 1994) (“[AJn attorney must

engage in a reasonable amount of pretrial investiga-

tion and at a minimum, ... interview potential

witnesses ... and make an independent investigation

of the facts and circumstances in the case.” (quotation

omitted)); Tenorio v. State, 261 Ga.App. 609, 613 n.14

(2003) (“[CJounsel has a duty to make reasonable

investigations or to make a reasonable decision that

makes particular investigations unnecessary.” (quota-

tion omitted)).

In fact, had they been contacted or called at trial,

Pruitt and Rodriguez would have corroborated

Navarrete’s testimony by confirming that he did not

assault Davis on the hill but instead, as on the night

of the murder, tried to prevent Davis from being

14

assaulted.” App. 31-41. They would have at the same

time contradicted, or even caused to be excluded,

Wulff’s hearsay testimony to the contrary. Counsel’s

failure to investigate those witnesses, not based on

strategy but instead on oversight due to illness, was

deficient performance. See, e.g., Stewart, 468 F.3d at

356; Richardson v. State, 189 Ga.App. 113, 114 (1988)

(ineffective assistance when defendant told counsel! of

two alibi witnesses but counsel did not speak to

them).

B. Trial Counsel’s Deficient Performance

Prejudiced the Defense.

Trial counsel’s errors prejudiced the defense

because calling Pruitt and Rodriguez would have

greatly undermined the State’s central evidence that

Navarrete was involved in a “conspiracy” to murder

Davis. See App. 68-69 (“That [Wulff’s testimony], I

submit to you, allows you to araw the inference of the

existence of a conspiracy.”). At the same time, Pruitt’s

testimony would have greatly bolstered the defense’s

central theory of the case, that Navarrete was not

involved in any such conspiracy but instead tried to

stop Davis’s murder on the night he was killed. And,

* Appellate counsel located Pruitt, who testified at the new

trial hearing. Counsel also attempted to locate Redriguez, who

has since left the Army, but were unable to do so. If an attempt

had been made to locate him at the time of the underlying

events and investigation, it is more likely he could have been

found.

15

it would have bolstered Navarrete’s credibility gener-

ally, which was a central issue in the case.

Deficient performance is prejudicial when it

creates a reasonable probability - a _ probability

“sufficient to undermine confidence in the outcome” —

that the outcome would have been different had

counsel performed competently. Strickland, 466 U.S.

at 694; Stapp v. State, 273 Ga.App. 899, 903 (2005)

(performance is prejudicial when “a _ reasonable

probability exists that, but for the deficiency, the

outcome of the trial would have been different”).

Here, there is more than a reasonable probability

that effective assistance would have produced a

different outcome.

First, had trial counsel called Pruitt and Rodri-

guez, it would have at least undermined, or at most

totally excluded, the most harmful testimony in the

State’s case. Wulff’s hearsay testimony was the

State’s only evidence that Navarrete had any wish to

seriously harm Davis or had any prior agreement

with Martinez to do Davis harm, because the evi-

dence at trial showed that on the night of the murder

Navarrete tried to stop Martinez from murdering

Davis. Cf. Stewart, 468 F.3d at 344, 356-61 (finding

prejudice from failure to investigate testimony of

witness that would have contradicted testimony of

state’s main motive witness). The State heavily empha-

sized Wulff’s story in opening and closing arguments,

claiming it showed that Navarrete had conspired

with Martinez to kill Davis on the night of the

murder. App. 67-72. Further, the State specifically

16

noted that Wulff’s testimony had been unimpeached

as grounds for the jury to believe his story and infer

that Navarrete was guilty of conspiring to commit

murder. App. 68-69. If the jury had heard from

Pruitt, it would have heard an account that im-

peached Wulff’s testimony about the hill incident on

the crucial points that Davis had hurt his hand in a

blood-brothers ritual and that Navarrete had not

assaulted Davis. And, that account would have bol-

stered the defense’s central theory, that Navarrete on

the night of the murder had no intent to harm Davis

but had tried to stop him from being stabbed.

Indeed, the calling of Pruitt and Rodriguez

should have caused Wulff’s testimony to be excluded

entirely, because the availability of those contempo-

raneous witnesses would make clear that Wulff’s

testimony was inadmissible under the necessity

exception to the hearsay doctrine. App. 9 (Georgia

Supreme Court concluding that Wulff’s testimony

was erroneously admitted hearsay). Without Wulff’s

testimony in evidence, the State would have had no

evidence that Navarrete had any prior intent to do

Davis serious harm.

At the same time, Pruitt and Rodriguez’s testi-

mony would have bolstered the defense’s central

theory. Pruitt’s account would have reinforced Navar-

rete’s and Burgoyne’s testimony that on the night of

the murder Navarrete tried to stop Martinez from

stabbing Davis, and then begged Martinez to take

Davis to the hospital, by indicating that Navarrete

had done the same thing before overseas. The failure

17

to call witnesses that could have bolstered Navar-

rete’s central narrative about his behavior towards

P’avis was prejudicial. Harrison, 496 F.3d at 427;

Griffin, 970 F.2d at 1359-60. In particular, because

Pruitt’s account was closer to Navarrete’s story about

the hill than Wulff’s, it would have improved Navar-

rete’s credibility with the jury, and thus made the

jury more likely to believe his account of what hap-

pened on the night of the murder. Compare Harrison,

496 F.3d at 427 (“Where is Tony West? ... Where is

Tony West? Where is Tony West to corroborate their

story? Can’t do it. Can’t corroborate it.”) with App.

74-75 (“Why didn’t they call Pruitt? ... Why didn't

they call Rodriguez? ... Why, because it wasn’t the

truth.”); App. 73 (prosecution cites contradiction

between Navarrete’s and Wulff’s stories as evidence

that Navarrete was generally a liar). The jury's

evaluation of Navarrete’s credibility was absolutely

critical, because in order to convict, the jury necessar-

ily had to disbelieve Navarrete’s own account (cor-

roborated by the other State’s witnesses) that he had

tried to stop the stabbing.

Trial counsel’s deficient performance deprived

Navarrete of crucial opportunities to undermine or

even eliminate the prosecution’s central testimony on

motive and intent, and to bolster his own testimony

he had no wish to seriously harm Davis. Especially

when the other evidence against Navarrete was so

thin, and the State’s case depended so heavily on

discrediting him, this creates at least a reasonable

probability that, had counsel been effective, the jury

18

would have voted to acquit. See Anderson, 338 F.3d at

392 (finding prejudice from failure to investigate and

call helpful witness when state’s evidence was

“weak”); Code, 799 F.2d at 1484 (prejudice from

failure to investigate alibi witnesses when “Code’s

trial was a mere swearing match”); Richardson, 189

Ga.App. at 114 (when evidence was “not overwhelm-

ing,” a “reasonable probability exists that the pres-

ence of defendant’s alibi witnesses would have

affected the result”). Counsel’s errors therefore preju-

diced Navarrete’s defense, and the convictions should

have been reversed.

C. The Georgia Supreme Court’s Ruling

Conflicts With Rulings From Federal

Circuit Courts.

The Georgia Supreme Court’s ruling that there

was no prejudice from counsel’s failure to contact

Pruitt and Rodriguez conflicts with the rulings of

federal circuit courts that have concluded that preju-

dice exists when counsel fails to contact witnesses

whose testimony is central to establishing the de-

fense’s theory of the case. See, e.g., Harrison, 496 F.3d

at 427; Stewart, 468 F.3d at 360. Counsel’s failure in

this case is materially indistinguishable from the

failures found to be deficient in those cases and the

other federal circuit cases cited above.

Federal circuits have also held that deficient

performance is prejudicial when it leads to the failure

to elicit testimony that would have bolstered the

19

defendant’s credibility, when the defendant’s credibil-

ity is a critical issue and critically placed in issue by

the prosecution. See, e.g., Harrison, 496 F.3d at 427

(“Where is Tony West? ... Where is Tony West?

Where is Tony West to corroborate their story? Can’t

do it. Can’t corroborate it.”). Similarly, in Griffin, the

Fourth Circuit found deficient performance when the

defense failed to call alibi witnesses, and the prosecu-

tion seized on this in closing:

The entire case hinges on the credibility of

the witnesses. Who do you believe? Do you

believe ... the security officers ... or do you

believe Donald Gary Griffin, who makes the

self-serving statement, I was at home at the

time that the alleged incident took place, ...

I was in my pajamas at 3:30 in the afternoon

when friends of mine, none of which you

heard from, come in and they went to a

friend’s house?

970 F.2d at 1359-60 (emphasis in original).

In this case, the prosecution engaged in a nearly

identical rhetorical maneuver to the ones in Harrison

and Griffin: “Why didn’t they call Pruitt? ... Why

didn’t they call Rodriguez? ... Why, because it wasn’t

the truth.” App. 74-75. That was just as prejudicial to

the defense as the similarly debilitating failure to call

exculpatory witnesses in cases like Harrison and

Griffin.

Yet the Georgia Supreme Court concluded that

there was no prejudice in counsel’s admittedly non-

strategic failure to ever contact Pruitt and Rodriguez.

20

Its justification for doing so, that the Pruitt testimony

would not have “exonerated” Navarrete, is simply

inconsistent with federal circuit law from numerous

circuits holding that when defense counsel fails to

investigate the testimony of a witness that would

have significantly aided the defense’s central theory

and bolstered the defendant’s story on a crucial issue,

that is prejudicially deficient performance. See, e.g.,

Harrison, 496 F.3d at 427; Griffin, 970 F.2d at 1359-

60; Stewart, 468 F.3d at 356; Towns, 395 F.3d at 258;

Harris, 894 F.2d at 878. Those cases, and others like

them, ¢o not require, in order to find prejudice, that

the omitted testimony would have completely exoner-

ated the defendant, or that the omitted testimony

have been about the crime itself. See, e.g., Washing-

ton v. Smith, 219 F.3d 620, 634 (7th Cir. 2000) (failure

to call additional alibi witnesses besides one that was

called was prejudicial); Stewart, 468 F.3d at 356

(prejudicially ineffective assistance in failure to

investigate testimony of witness that would have

contradicted state’s witness's testimony about crucial

motive-related events prior to the actual crime).

The Georgia Supreme Court’s application of a

standard requiring that the uninvestigated testimony

must have completely exonerated the defendant, App.

12, is out of step with the precedents from the federal

circuits, and the teaching of this Court in Strickland

that deficient performance is prejudicial when it

creates a probability “sufficient to undermine confi-

dence in the outcome” that the outcome would have

been different had counsel performed competently.

21

Strickland, 466 U.S. at 694. Pruitt’s testimony was

crucial to establishing Navarrete’s theory of the case:

that he did not conspire to murder Davis, but instead

tried to stop him from being murdered. It rebutted

the most damning piece of testimony in the state’s

case. It shored up Navarrete’s credibility on a critical

point of difference between the State and Navarrete’s

stories. Counsel’s failure to investigate and put on

that testimony is more than enough to create a rea-

sonable probability of a different outcome.

“Eyewitness identification evidence, uncorrobo-

rated by a fingerprint, gun, confession, or coconspira-

tor testimony, is a thin thread to shackle a man for

forty years.” Griffin, 970 F.2d at 1359. Similarly,

weak circumstantial evidence of Navarrete’s guilt,

already rebutted by substantial direct trial eyewit-

ness evidence of Navarrete’s attempt to prevent the

murder, is a weak basis to sentence Mario Navarrete

to spend the rest of his life in prison, when Navarrete

asked his lawyer to contact witnesses who could have

rebutted the State’s best evidence that Navarrete

ever had any motive to do Davis harm, and the law-

yer simply failed to make any effort at all to do so. By

concluding there was no prejudice from counsel’s

failure to contact Pruitt and Rodriguez because the

testimony would not have completely exonerated

Navarrete, the Georgia Supreme Court both erred

and contradicted the decisions of federal circuit courts

that have, rightly, concluded that there is necessarily

prejudice when ‘counsel does not contact witnesses

whose testimony is centrally important to the

22

defense’s theory, and to the defendant’s own credibil-

ity, when his credibility is a central issue. This Court

should grant certiorari to restore uniformity in the

interpretation of its Strickland standard in the

context of failures by counsel to contact important

defense witnesses.

,

v

CONCLUSION

The Petition for a writ of certiorari should be

granted.

Respectfully submitted,

EDWARD C. DAWSON

Counsel of Record

GREGORY S. COLEMAN

YETTER, WARDEN &

COLEMAN LLP

221 West Sixth Street,

Suite 750

Austin, Texas 78701

(512) 533-0150

Counsel for Petitioner

Mario Navarrete

May 2008

App. 1

In the Supreme Court of Georgia

Decided: JAN 28 2008

S07A1456. NAVARRETE . THE STATE.

THOMPSON, Justice.

Mario Roberto Navarrete was convicted of felony

murder, aggravated assault, and other crimes arising

from the stabbing death of Richard Davis.’ On appeal,

Navarrete asserts that the evidence was constitu-

tionally insufficient to support his convictions, that

the trial court improperly admitted certain hearsay

testimony under the necessity exception, and that he

was denied effective assistance of trial counsel.

Finding no reversible error, we affirm.

" The crimes were committed on July 12, 2003. On Febru-

ary 17, 2004, Navarrete was indicted along with Alberto Marti-

nez, Jacob Burgoyne, and Douglas Woodcoff. Navarrete was

charged with malice murder, felony murder while in the com-

mission of an aggravated assault, aggravated assault, possession

of a knife during the commission of a crime, armed robbery, and

concealing the death of another. Appellant and Martinez

proceeded to a joint jury trial which commenced on January 23,

2006. On January 27, 2007, the jury acquitted appellant of

malice murder and armed robbery but convicted him of the

remaining charged offenses. Martinez was convicted of all

charges except armed robbery. Navarrete was sentenced on the

same day to hfe imprisonment plus 20 concurrent years for

aggravated assault and consecutive terms for weapon possession

and concealing a death. A motion for new trial was filed on

February 7, 2006, amended on November 21, 2006, and denied

on January 5, 2007. A motion for out-of-time appeal was granted

on May 25, 2007 and a notice of appeal was filed on the same

day. The case was docketed in this Court on June 11, 2007. Oral

argument was heard on October 10, 2007.

App. 2

Viewed in a light most favorable to the verdict,

the evidence established that Navarrete, his co-

indictees Jacob Burgoyne, Douglas Woodcoff, and

Alberto Martinez, as well as the victim, Richard

Davis, served together as infantrymen in the United

States Army.’

The crimes occurred soon after the five men

returned to Fort Benning, Georgia, from a six-month

deployment to Iraq and Kuwait. On the evening in

question, Martinez drove Navarrete, Burgoyne,

Woodcoff, and Davis to a Hooters restaurant to cele-

brate their homecoming. On the way there, Martinez

showed the others a new knife which he kept in the

console of his car. The five men spent the next few

hours at the restaurant having dinner and consuming

several pitchers of beer. Martinez then drove them to

an adult entertainment club. At some point in the

evening, the club’s bouncer approached Woodcoff and

Martinez and asked them to remove Davis because he

was visibly intoxicated. Woodcoff and Martinez

escorted Davis to Martinez’s car, placed him in the

back seat, and returned to the club where they

continued drinking. Approximately two hours later,

the four men left the club and returned to the car.

* Burgoyne pled guilty to voluntary mansiaughter and other

charges, and was sentenced to 20 years in prison; Woodcoff pled

guilty to the only charge for which he was indicted, concealing

the death of another, and was sentenced to probation. Both

testified for the State in the joint trial against Navarrete and

Martinez.

App. 3

Burgoyne pulled Davis out of the back seat and

without provocation, began to beat him. The others

stcod by but made no attempt to stop the fight. Sub-

sequently, the five men again got into Martinez’s car;

Navarrete and Burgoyne sat in the back seat with

Davis between them, and Woodcoff was in the front

passenger seat. Martinez drove to a rural, wooded

area about 20 minutes away. During the drive,

Navarrete and Burgoyne continued to beat Davis,

despite Woodcoff’s entreaties for them to stop.

Martinez stopped the car, and ordered everyone

to get out. Martinez, Burgoyne, and Navarrete

formed a circle around Davis. Burgoyne struck Davis

several times and Davis began to walk toward Marti-

nez and Navarrete. Martinez then produced a knife

and stabbed Davis, causing him to fall to the ground.

Navarrete and Burgoyne urged Martinez to stop the

attack but Martinez disregarded their pleas; Bur-

goyne then walked back te the car and Navarrete

followed. Moments later, Davis got to his feet but

Martinez grabbed him around the neck and resumed

stabbing him. Davis fell to his knees and the attack

continued with Martinez inflicting a minimum of 33

knife wounds. The others observed but did nothing to

aid Davis. After Davis stopped moving, Martinez and

Burgoyne placed his body further into the woods and

removed his identification. The four men returned to

the car and Martinez drove a short distance to a clear-

ing where they made the decision to burn the body.

Martinez drove to a convenience store and Burgoyne

collected money from the others to purchase lighter

App. 4

fluid and matches. Upon returning to the crime scene,

Martinez and Burgoyne poured lighter fluid on the

body and set it on fire; Navarrete and Woodcoff

remained in the car. Martinez then drove the men to

their barracks at Fort Benning.

Several days later Martinez returned to the

crime scene where he detected the odor of the victim’s

decaying body and he decided to bury it. He, along

with Navarrete and Burgoyne, returned to the scene

that night supplied with latex gloves, a shovel, and a

change of clothes. Navarrete stood lookout while

Burgoyne attempted to bury the body.

1. Navarrete asserts that the evidence only

establishes his “mere presence” during the commis-

sion of the offense of aggravated assault and felony

murder predicated on aggravated assault. Thus, he

claims that the evidence was insufficient to support

those convictions.

“Every person concerned in the commission of a

crime is a party thereto and may be charged with and

convicted of commission of the crime.” OCGA § 16-2-

20(a). “‘While mere presence at the scene of a crime is

not sufficient evidence to convict one of being a party

to a crime, criminal intent may be inferred from

presence, companionship, and conduct before, during

and after the offense.’ |Cit.|” Strozier v. State, 277 Ga.

78, 79 (2) (586 SE2d 309) (2003). See also Byrum v.

State, 282 Ga. 608 (1) (652 SE2d 557) (2007). Com-

pare James v. State, 260 Ca. App. 350 (1) (579 SE2d

750) (2003) (evidence insufficient where defendant

App. 5

was not present during the crimes and conduct before

and after did not suepert the inference that he knew

of the plan and shared in the criminal intent).

Navarrete’s intent co commit the crimes may be

inferred from evidence that he assaulted Davis in the

back seat of the car during the 20-minute drive to the

wooded area, that he participated in the plot to burn

the body, that he did not attempt to report the crime

in the days following the murder even when ques-

tioned by the military authorities, and that he stood

lookout while Martinez and Burgoyne burted the body

days later. In addition, Navarrete was aware in

advance of the stabbing that Martinez was armed

with a knife and he stood by and watched Martinez

commit an aggravated assault on Davis before he

made any effort to intervene.

The evidence was sufficient for a rational trier of

fact to conclude beyond a reasonable doubt that

Navarrete was guilty of the crimes for which he was

convicted. Jackson v. Virginia, 443 U.S. 307 (99 SC

2781, 61 LE2d 560) (1979).

2. Over Navarrete’s hearsay objection, Army

medic Edward Wulff was permitted to testify about

an incident that occurred in Iraq just prior to the

unit’s redeployment to Fort Benning. Wuiff testified

that he was attached to the same platogn as Navar-

rete and Davis and that he and Davis had become

good friends. One night Davis came to his barracks

and awakened him seeking treatment for a wound to

the back of his hand. Wulff testified that he asked

App. 6

Davis how he injured his hand, and that Davis re-

plied he had been drinking with Martinez and Navar-

rete and they decided to become “blood brothers”;

Martinez and Navarrete hit him and choked him; and

Davis thought they were going to kill him. It was also

elicited from Wulff that Davis was extremely intoxi-

cated when he made these remarks, and when Wulff

advised Davis to report the incident, Davis refused

and stated that if anyone were to ask him about it, he

would lie and say he fell and caught his hand in a

thorn bush. The next morning, Wulff sought out

Martinez and Navarrete and inspected their hands

for injuries, but observed none. Wulff did not report

the injury or the alleged threat because he thought it

was just a “drunk thing” and not really serious. The

trial court admitted the evidence under the necessity

exception to the hearsay doctrine.”

In order for hearsay tc be admitted under

the necessity exception, two requirements

must be satisfied: “necessity” and “particu-

larized guarantees of trustworthiness.”

|Cits.| “Necessity” is demonstrated when the

declarant is deceased, when the statement

is shown to be relevant to a material fact,

and when the statement is more probative of

the material fact than other evidence that

may be produced and offered. [Cit.] The re-

quirement of “particularized guarantees of

* Because of the non-testimonial nature of the hearsay

declarations, Crawford v. Washington, 541 U. S. 36 (124 SC

1354, 158 LE2d 177) (2004) is not implicated.

App. 7

trustworthiness” is satisfied when the decla-

ration is coupled with “circumstances which

attribute verity to [the declaration].”

Culmer v. State, 282 Ga. 330, 331 (2) (647 SE2d 30)

(2007). Without deciding whether the hearsay was

“necessary” under the foregoing test, we hold that the

declarations lacked the requisite component of

“trustworthiness” and, therefore, should not have

been admitted under the necessity exception.

In evaluating the trustworthiness element, the

trial court should look to the totality of the circum-

stances surrounding the making of the declaration.

Belmar v. State, 279 Ga. 795 (2) (621 SE2d 441)

(2005). Our review of the record persuades us that

the State, as proponent of the hearsay, failed to

demonstrate sufficient indicia of trustworthiness for

the statements to be admissible under the necessity

exception. While a close relationship between Davis

and Wulff may militate in favor of admission, see

Turner v. State, 281 Ga. 647 (3) (a) (641 SE2d 527)

(2007), that one factor alone is not dispositive, espe-

cially where the totality of the circumstances dictate

otherwise. See Carr v. State, 267 Ga. 701 (3) (482

SE2d 314) (1997), overruled on other grounds, Clark

v. State, 271 Ga. 6 (5) (515 SE2d 155) (1999). See also

Paul S. Milich, Georgia Rules of Evidence, 2d. Ed.,

§ 19.32.

Wulff acknowledged that Davis was intoxicated

when he made the statements, and Wulff dismissed

the alleged threats on Davis’ life as the ramblings of a

App. 8

“drunk” person. See Messick v. State, 276 Ga. 528 (3)

(580 SE2d 213) (2003) (statements to a self-described

acquaintance after an all-day drinking session lacked

sufficient guarantees of trustworthiness and were

inadmissible under the necessity exception). See also

U. S. v. Two Shields, 497 F3d 789 (8th Cir. 2007)

(extreme intoxication is one consideration in the

totality of the circumstances evaluation of the reli-

ability of a hearsay statement). Since Davis had

consumed the alcohol at the time that Navarrete and

Martinez made the alleged threats, it is also reason-

able to infer that Davis was intoxicated when he

witnessed the events, thus undermining his credibil-

ity as a witness. See generally Teat v. State, 237 Ga.

App. 867 (2) (a) (616 SE2d 794) (1999) (“any possible

state of intoxication goes to the credibility of the

witness”), citing Whitus v. State, 222 Ga. 103 (2) (149

SE2d 130) (1966), rev’d on other grounds in Whitus v.

Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599)

(1967).

In addition, Davis told Wulff that he had no

compunctions about lying to his chain of command

concerning the nature of his injury, thus demonstrat-

ing his lack of veracity. “The test is whether the

declarant’s truthfulness is so clear from the surround-

ing circumstances that the test of cross-examination

would be of marginal utility.” (Punctuation omitted.)

Yancey v. State, 275 Ga. 550, 553 (2) (570 SE2d 269)

App. 9

(2002)*. Here, the truthfulness of the statement could

have been challenged had the declarant been subject

to cross-examination. Although a trial court’s deter-

mination of trustworthiness will not be disturbed

absent an abuse of discretion, Culmer, supra at (2),

we conclude under the totality of the circumstances,

that Davis’ declarations to Wulff were not “coupled

with circumstances which attribute verity to it,”

Belmar, supra at 797 (2), and thus are inherently

untrustworthy.

We next must assess whether the error in admit-

ting the hearsay portion of Wulff’s testimony was

harmless. “The erroneous admission of hearsay testi-

mony is harmless where it is cumulative of legally

admissible evidence of the same fact, where it does

not touch on the central issue of the case, or it could

not have contributed to the verdict in light of eyewit-

ness testimony regarding the crime.” Myers v. State,

275 Ga. 709, 713 (2) (572 SE2d 606) (2002). See also

White v. State, 273 Ga. 787 (4) (546 SE2d 514) (2001)

(erroneous admission of hearsay is harmless where

there is a positive identification and other corrobora-

tive circumstances). According to the account of two

eyewitnesses, Navarrete was implicated as a party to

the crimes for which he was convicted. While, under

OCGA § 24-4-8, the testimony of a single accomplice

in a felony prosecution is not sufficient to establish a

fact, “the testimony of one accomplice may be used to

* Decided prior to Crawford v. Wasaington, supra.

App. 10

corroborate that of another.” Williams v. State, 280

Ga. 584, 586 (1) (630 SE2d 370) (2006). In addition,

Navarrete’s participation and criminal intent could be

adduced from his conduct before, during and after the

events. Byrum, supra at (1). Under the circum-

stances, we hold that the hearsay evidence could not

have contributed to the verdict. Id.

3. Navarrete submits that he was denied consti-

tutionally effective assistance of trial counsel because

counsel failed to adequately investigate the case, and

failed to offer the testimony of two soldiers who

allegedly were present during the “blood brothers”

incident in Iraq and who could have rebutted Wulff’s

hearsay testimony that Navarrete had threatened

Davis.

“To prevail on a claim of ineffective assistance of

counsel, a criminal defendant must show that coun-

sel’s performance was deficient and that the defi-

ciency so prejudiced defendant that there is a

reasonable likelihood that, but for counsel’s errors,

the outcome of the trial would have been different.”

Patel v. State, 279 Ga. 750, 751 (620 SE2d 343)

(2005), citing Strickland v. Washington, 466 U. S. 668

(104 SC 2052, 80 LE2d 674) (1984).

At the hearing on the motion for new trial, trial

counsel’s physician testified that several months prior

to Navarrete’s trial, counsel had been diagnosed with

cancer and that he began a course of chemotherapy

and received treatments both prior to and after the

date of trial; that contemporaneous with Navarrete’s

App. 11

trial, counsel reported experiencing a side effect of

chemotherapy which causes peeling of the skin on the

hands and feet; but that counsel did not complain

about a lack of mental acuity until eight months after

the conclusion of Navarrete’s trial. Trial counsel

testified that his concentration and ability to write

were compromised during the trial. When asked

about his knowledge of the two potential witnesses to

the “blood brothers” incident, counsel stated that in a

pretrial interview Navarrete named the two men as

potential character witnesses, and that at some time

during trial Navarrete told him the two were present

when he cut his hand “and could testify to that.”

Counsel could offer no explanation for his failure to

follow up on that information.

Sergeant Pruitt, one of the two soldiers who

allegedly witnessed the “blood brothers” incident

testified for the defense at the motion hearing.” He

stated that Martinez and Davis had gotten into an

altercation at the time of the incident and that

Navarrete tried to stop it. Although Pruitt acknowl-

edged on cross-examination that he had been inter-

viewed numerous times after Davis’ murder by both

military and civilian investigators and was expressly

asked if he knew of any problems with anyone in his

platoon, he never disclosed the “blood brothers”

incident. Assistant District Attorney Jackson who

° The second soldier had left the service and could not be

located.

App. 12

participated in the trial of the case was called to

rebut Pruitt’s hearing testimony. ADA Jackson testi-

fied that Pruitt, who had been subpoenaed as a

witness for the State at trial (as were other members

of the platoon), was interviewed by him prior to trial

and asked what if anything he knew about the case

and why someone may have been intent on harming

Davis. Pruitt replied, “I don’t know anything. I don’t

even know why I’m here... . Everything I know is in

the statements you’ve got.” And as a result, Pruitt

was excused from his subpoena.

“In ruling on an ineffectiveness claim, this Court

need not analyze the deficient performance prong if

the Court determines the prejudice prong has not

been satisfied.” Fortson v. State, 280 Ga. 435, 436 (2)

(a) (629 SE2d 798) (2006). As in Fortson, “[elven if the

witness had testified exactly as [Navarrete] claims,

|[Navarrete] has. not demonstrated that there is a

reasonable probability that the outcome of the trial

would have been different, as the testirnony would

not have exonerated him.” Id. Furthermore, Pruitt’s

testimony concerning the incident differed from Navar-

rete’s trial testimony in several material respects,

including his identification of the persons who were

present, and the area of the injury to Davis’ hand.

Thus, had Pruitt been called as a witness at trial, his

testimony actually may have been detrimental to the

App. 13

defense. Accordingly, we hold that the prejudice prong

of Strickland has not been met.”

4. Finally, we reject Navarrete’s claim that the

trial court committed reversible error by allowing

ADA Jackson, who participated as co-counsel for the

State in the new trial hearing, to testify in violation

of the rule of sequestration. After a proffer, the court

allowed Jackson to testify to impeach the testimony

of Sergeant Pruitt. A violation of the rule of seques-

tration generally does not affect the admissibility of

the testimony, but may impact on the credibility of

the offending witness. Rakestrau v. State, 278 Ga. 872

(4) (608 SE2d 216) (2005). We find no abuse of discre-

tion in the trial court’s ruling especially in light of the

fact that this was a non-jury matter. Id.

Judgment affirmed. All the Justices concur.

* In addition, Navarrete’s unsubstantiated claim that trial

counsel was ill-prepared is belied by the evidence and by

counsel’s submitted time records documenting his pretrial

preparation

App. 14

IN THE SUPERIOR COURT

OF MUSCOGEE COUNTY

STATE OF GEORGIA

STATE OF GEORGIA, *

Vv. ” CASE NO.

. SU-04-CR-566

MARIO NAVARRETE, ”

Defendant. *

ORDER DENYING DEFENDANT'S

MOTION FOR A NEW TRIAL

(Filed Jan. 5, 2007)

z

Defendant was tried in the Superior Court of

Muscogee County, Georgia on January 23rd-27th,

2006 before the Honorable William J. Smith. Defen-

dant was convicted by jury verdict of the following

charges: Felony Murder, Aggravated Assault, Posses-

sion of a Knife During the Commission of a Crime

and Concealing the Death of Another. Defendant filed

a Motion for New Trial February 7, 2006 and an

Amended Motion for New Trial on November 21,

2006.

2.

Defendant’s Motion For New Trial was calied for

a hearing on December 19th, 2006 before Honorable

William J. Smith. Defendant was present along with

defense counsel Greg Coleman and Ed Dawson. After

App. 15

a hearing, with evidence having been presented and

considered in the matter, the Court now denies

Defendant’s Motion for New Trial on each and every

ground.

SO ORDERED, this 4th day of January, 2007.

/s/ William J. Smith

Judge William J. Smith

Muscogee County Superior Court

Chattahoochee Judicial Circuit

PREPARED BY:

/s/ Stacey S. Jackson

Stacey S. Jackson

Assistant District Attorney

State Bar #387655

App. 16

SUPREME COURT OF GEORGIA

Case No. S07A1456 Atlanta, February 25, 2008

The Henorable Supreme Court met pursuant to

adjournment. The following order was passed:

MARIO NAVARRETE v. THE STATE

Upon consideration of the Motion for Reconsid-

eration filed in this case, it is ordered that it be

hereby denied.

SUPREME COURT OF

THE STATE OF GEORGIA

Ci-rk’s Office, Atlanta

I herevy certify that the above

is a true extract from the minutes of

the Supreme Court of Georgia.

Witness my signature and the

seal of said court hereto affixed the

day and year last above written.

Therese S. Barnes, Clerk

App. 17

IN THE SUPERIOR COURT

OF MUSCOGEE COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

vs.

MARIO NAVARRETTE,

Defendant.

Case No. SU04CR-566

HEARING: Motion for New Trial

Transcript of the proceedings heard in the above-

styled matter before THE HONORABLE WILLIAM

J. SMITH, Senior Judge, commencing at. 9:00 a.m.,

December 19, 2006, at The Government Center,

Columbus, Georgia.

The Honorable Erin Fourcade, Deputy Clerk

* *

[16] but if we’re going into factual circumstances, I

think they need to be sequestered.

THE COURT: All right. The Rule of Se-

questration is invoked. Anyone who's been subpoe-

naed to testify or asked to testify should step outside

and remain within the call of the bailiff.

[WITNESSES WITHDRAW FROM COURTROOM. |

MR. JACKSON: And I apologize, Mr.

Dawson. I should’ve done that at the beginning but I

didn’t want to interrupt.

App. 18

THE COURT: Okay. Very well.

MR. DAWSON: Thank you. Georgia law

does not permit a person to be guilty as a party toa

crime merely by association with the guilty or pres-

ence at the time of the crime. And there was no direct

evidence that Navarrette was a party to the aggra-

vated assault rather than simply being present when

it occurred. Without Medic Wulff’s hearsay testi-

mony, there would not have even been circumstantial

evidence of that. Even if that circumstantial evidence

is not excluded, it fails to eliminate reasonable alter-

natives.

And, finally, there was substantial direct evi-

dence that Navarrette actually tried to

* * *

[21] you. Patients can also develop something called

hand-foot syndrome, which is e toxicity that is unique

to Five FU chemotherapy; and that toxicity involves

the peeling and burning of the hands and can lead to

actually the full peeling of the skin off the hands and

feet, and that can happen periodically.

BY MR. DAWSON:

Q. Thank you. Did you observe that the treat-

ment you gave to Dr. Wright — Mr. Wright had effects

on him?

A. It did.

Q. Can you tell us what they were?

App. 19

A. Yes. May refer to my record?

Q. Yes.

A. Early into his treatment, he developed a very

unusual kind of pustular rash over his entire body

actually. He developed a rash over his genitals, his

torso, his arms; and it was a kind of rash that I had

not really typically encountered with this kind of

chemotherapy. It looked a lot like just bad acne. It

was pustular. It probably had to do with some of the

steroids he was getting, which are given to prevent

nausea. That waxed and waned.

About his sixth cycle in November, mid-

November, he began to develop some numbness in his

fingertips that would last about three to four days.

And then in December, late [22] December and Janu-

ary, he had some significant hand-foot Syndrome,

meaning that his — the skin on his hands and feet

literally began to peel off, and it was — I would clas-

sify it as a grade 3 or a grade 4 toxicity.

What does that mean? It means that when you

have a grade 3 or grade 4 toxicity, it impairs your

ability to perform your — what we call daily activities:

eating, combing, brushing, those sort of things.

@. And in addition to the physical impairments

that you described and the fatigue that you men-

tioned, is it also possible for undergoing chemother-

apy to impair mental function?

A. It is. And I didn’t — its difficult to assess that

and quantitate that, but it is very common. It’s

App. 20

clearly reported in the medical literature that pa-

tients undergoing chemotherapy lack the ability to

concentrate. They lack the ability to focus. It’s typi-

cally more noticeable in patients who have cognitive

professions: teachers, lawyers, engineers, who use

their — who function mentally and largely in a mental

capacity. And it happens while patients are receiving

chemotherapy and also for several months thereafter.

Q. Thank you very much, Doctor.

MR. DAWSON: Pass the witness.

CROSS-EXAMINATION BY MR. JACKSON:

Q. Good morning, Dr. Pippas.

ok * *

[24] A. Yes, sir.

Q. Okay. But nothing of note in January of this

year. Correct?

A. May I review my record?

Q. Sure.

A. Thank you. I don’t have anything in my

record that indicated he was having problems think-

ing. I do have much in my record indicating problems

with hand-foot syndrome and neuropathy.

Q. Okay. Thank you. Thank you. Doctor. And as

you know, you're here in reference — as we've talked

and I’m sure you've talked to Mr. Wright and possibly

defense counsel — we’re here on a motion for new trial

App. 21

about a case that Mr. Wright tried back in January of

this year. Correct? You’re familiar with that some-

what?

A. I’m very minimally familiar with that.

Q. Okay. And if — believing it was — taking my

word for it that some type of motion, amended motion

for new trial, was filed in November —

A. Okay.

Q. — 2006, taking that to be true, this in your

records Mr. Wright mentioning about mental incapac-

ity was September of 2006 would be just a couple of

months before, if taking what I say was true about

the motion being filed in November of 2006?

A. That’s correct.

[39] occurs as a result of the chemotherapy treat-

ment, is this more likely to occur at the time of the

chemotherapy treatment or shortly after or a period

of months or years after that?

THE WITNESS: It can occur in and

around the time you take your chemotherapy. So for

those few days thereafter, universally people become

fatigued. Don’t want to work. Can’t focus on work.

That period of what I would call immediate chemo-

therapy fatigue lasts anywhere from two to four days

after you’ve finished taking your treatments. That’s

one. And then patients recover from that and feel like

they can go back to work; they can focus.

App. 22

In addition to that, however, there is clearly at

the end of a series of chemotherapy treatments, be

that six treatments or 12 treatments or eight, what-

ever that number is, at the end of that series of

treatments and for a period thereafter that may last

for a year or two or may -— there are — there’s some-

thing called chemotherapy brain or chemobrain that

we talk about in the profession that has been sup-

ported in the literature that is a late effect of treat-

ment that again is a — is a— it’s a loss of what I would

* * *k

[42] THE WITNESS: ’04. It would’ve been

04.

BY MR. DAWSON:

Q. Okay. And how did you get Mario Navar-

rette’s case?

A. Iwas appointed.

Q. Okay. And when did you become ill with

cancer?

A. I was diagnosed, I believe, around July of

last year.

Q. Are you still being treated for cancer now?

A. No.

Q@. When did the treatments stop?

A. The last treatment was, as I recall, February

of last year. No, February of this year.

App. 23

Q. February of ’06?

A. Uh-huh.

Q. Did your illness and your treatment affect

your performance during Mario Navarrette’s trial?

A. . Yes, it did.

Q. How did it affect you?

A. Well, I had a problem with short-term mem-

ory. I had a problem concentrating. I recall not being

able to read my own notes. Counsel for one of the

other defendants made a remark once he —

MR. JACKSON: Object, Your Honor,

hearsay.

THE COURT: No response, the objection

[43] is sustained.

Do you want to pull that a little closer to you.

THE WITNESS: And that — but I had

trouble concentrating. Trouble reading my own notes,

and Mario told me about the witnesses after Wulff

had testified that Pruitt and Rodriguez were there on

the hill when Davis cut his own hand and I intended

to call those witnesses. And why I didn’t, I don’t know.

BY MR. DAWSON:

Q. Do you remember when Mario first told you

that Pruitt and Rodriguez had been there the night in

Iraq when Davis was assaulted?

App. 24

A. I looked back and saw some notes where he

had told me that, and they looked like it was at the

jail in an interview, and he said that they would be

character witnesses. And then I do recall during the

course of trial he indicated to me that they were there

when Davis cut his hand and they could testify to

that.

Q. Did you investigate Pruitt and Rodriguez’s

stories?

A. No, I did not.

Q. Did you call Pruitt and Rodriguez at Mario’s

trial?

A. No, I did not.

Q. What was your reason for not speaking to,

not calling [44] Pruitt and Rodriguez?

A. Ihave no explanation.

Q. Was it a strategic decision?

A. No, it wasn’t. I had intended to call those

witnesses and IJ just didn’t do it.

Q. Can you describe the symptoms you were

experiencing during the course of the trial?

THE COURT: The what?

BY MR. DAWSON:

Q. The symptoms, medical symptoms.

App. 25

A. Well, physically, my hands had burst open. I

had bandages on my fingers. Of course, I had trouble

concentrating. I had trouble actually following all the

evidence, and I was in very severe back pain. I was

just not myself.

Q. In comparison to other times during the

course of your chemotherapy treatment, was the way

you were feeling during Navarrette’s trial worse or

better than earlier in the treatment?

A. Well, I was told to expect certain things from

those treatments. What I didn’t realize was that

things could get progressively worse. As an example, I

had a trial in November of the following year [sic],

and I didn’t have that problem at all; but by the time

this trial came along — and, of course, I mentioned to

Dr. Pippas that I needed to bring my A game to [45]

this trial because it was that important, but he didn’t,

you know, really make any comment on that, but I

just wanted to know whether or not I could, perhaps,

maybe perform, but I guess maybe he really couldn’t

tell me that.

THE COURT: Im sorry. I’m having a little

trouble hearing you. Would you speak up. Did you say

you asked Dr. Pippas if you should — you would be

able to perform in this trial?

THE WITNESS: No, I didn’t ask him that.

I just -

THE COURT: Pull that a little closer to

you.

App. 26

THE WITNESS: I just made the statement

that I needed to have my A game for the trial.

BY MR. DAWSON:

Q. Do you feel like you did have your A game

during Mario Navarrette’s trial?

A. No, and the next time I saw Dr. Pippas, I

told him that I had a D game. I just did not perform

like I know I could have at that trial. ve, you know,

tried many, many cases; and I just know when I’m

performing to the level that I know I can perform.

And in this particular instance, I know I wasn’t.

Q. Thank you, Mr. Wright.

[74] court says I did. Now, but it also says that I could

do this and have this removed. And, yeah, that’s my

signature and I was considering doing that.

Q. All right.

MR. CONGER: Your Honor, we move to

admit State’s Exhibits 1, 2 and 3. On 3, could I get a

copy of this one.

THE COURT: And substitute a copy?

MR. CONGER: Yes, sir. Any objections?

THE COURT: Objection to relevancy again

on that?

MR. COLEMAN: Same objection, Your

Honor.

App. 27

THE COURT: Subject to that, it’s admit-

ted, and you may substitute a copy of it.

MR. CONGER: Yes, sir. Thank you very

much, Your Honor.

(STATE’S EXHIBIT 3 IS ADMITTED INTO EVI-

DENCE. |

MR. CONGER: That’s all we have on cross

at this time, Your Honor. Thank you.

THE COURT: Any redirect?

REDIRECT EXAMINATION BY MR. DAWSON:

Q. Mr. Wright, have you ever testified to being

ineffective as counsel other than in the Hodnett

case —

(75) A. Never.

@. -— and this case? Ana the Hodnett case was

when?

A. ’97.

Q. In the Hodnett case, did you fail to investi-

gate and call crucial witnesses?

A. No, not that I recall.

@. Can you read for us what it says at Page 11,

lines 14 to 18?

A. “Did you investigate any of the alibi wit-

nesses that he said that he had?”

App. 28

Answer: “I did.”

Question: “You did talk to them?”

“Uh-huh.”

Q. Thank you. And in the Georgia Supreme

Court opinion in the case it said, “Counsel personally

interviewed the many witnesses called and filed

numerous pretrial motions on behalf of Hodnett.

Additionally, counsel worked closely with the investi-

gator assigned to the case.” Did you personally inter-

view Pruitt and Rodriguez?

A. No.

Q@. Was your decision not to interview Pruitt

and Rodriguez a strategic decision?

A. I intended to.

Q. During the Hodnett trial were you sick with

cancer?

A. No.

- [76] Q. Were you undergoing chemotherapy at

that time?

A. No.

Q. Did Navarrette tell you prior to his trial that

Pruitt and Rodriguez were with him on the hill on the

night in Iraq when Davis was assaulted?

App. 29

A. He may heave. You know, we talked quite a

bit, but I’m certain he told me that during the course

of his trial.

Q. So you're not certain whether he told you

before trial, but he may have?

A. May have.

Q. Did he tell you during the trial?

A. He did.

@. And when was that?

A. It was after Wulff had testified, I believe,

because he was indicating something other than what

he knew about tise facts of him getting his hand cut.

@. And when he told you that, did you call

Pruitt or Rodriguez to testify?

A. No, I didn’t.

Q. Was that a strategic decision?

A. Im sorry.

@. Was tat [sic] a strategic decision?

A. No, it wasn’t.

@. Between the November trial in which you

won an acquittal, November of ’05, and January of

06, when Mario [77] Navarrette’s trial was, how did

you [sic] condition change mentally and physically?

App. 30

A. Well, it got progressively worse, and in

November I'd only had a few treatments at that point,

maybe three. I hadn’t — I didn’t exhibit the kind of

symptoms and the effect that it had on me as these

treatments progressed. You know, as an example,

during the trial in January, | didn’t have — I still had

feelings in my hands and feet. Now I don’t, you know.

So what I’m saying is it appears that as these treat-

ments progress and I guess more and more of the

stuff gets to build up in your system, it starts to affect

you differently. In November I didn’t have those

symptoms. I didn’t have any cuts on the hands. I was

feeling fine. I wasn’t tired. I didn’t have to go home

and lie down in the middle of the day. I was doing

fine.

But in January, [m afraid it was altogether

different, although I thought I was doing okay.

Q. But during the trial, did Mario tell you abou’

Pruitt and Rodriguez?

A. He did.

Q. And you decided not to call them?

A. I intended to.

Q. And that was not a strategic decision?

A. Ithink I just forgot.

Q. Thank you.

* + *

App. 31

[83] AFTERNOON PROCEEDINGS

THE COURT: All right. You have another

witness.

MR. COLEMAN: One more witness, Your

Honor. We’d like to call Sergeant Gregory Pruitt.

Whereupon,

GREGORY DWAINE PRUITT

is called as a witness and, having been first duly

sworn, is examined and testifies as follows:

DIRECT EXAMINATION BY MR. COLEMAN:

Q. Sergeant Pruitt, would you state for the

record your name.

A. Gregory Dwaine Pruitt.

And you are serving in the military?

Yes.

What is your position in the military?

I’m a squad leader.

How long have you been in the army?

PrP OP OD Pp &

Five years.

Q. Can you tell me where you have served in

the military?

A. Fort Benning, Kelly Hill, and we’ve been

deployed to Iraq. This is my third time in Iraq.

Q. Do you know Mario Navarrette?

App. 32

A. Yes.

[84] Q. Do you recognize him here today?

A. Yes.

Q. How do you know Mr. Navarrette?

A. He was in my same platoon in my company.

Q. And can you tell us when that was?

A. That was — he got there in 2002 when we

were deployed to Kuwait.

Q. Did you meet him before you went to Ku-

wait, or did you meet him in Kuwait?

A. In Kuwait.

Q. And after Kuwait, then you went into Iraq?

A. Yes.

Q. And you were in Iraq together?

A. Yes.

Q. Do you feel that you know Mr. Navarrette

pretty well?

A. Yes.

Q. How do you find him — how did you find him

to be as a soldier?

A. He was a good soldier.

Q. And as a person?

App. 33

A. He was a good person, good father. He al-

ways talked about his kids and being in the military.

Q. Ifyou had been called upon to give testimony

relating to Mr Navarrette’s character or propensity

for violence or anything else, would you have been

willing to give [85] testimony?

A. Yes.

Q. Were you called to give testimony at trial?

A. Iwas at first.

Q. Were you ever called to the witness stand?

A. No, not to the witness stand.

Q. If you had been called to give testimony

about Mr. Navarrette’s character or propensity io

violence, can you just very briefly summarize what

the nature of that testimony would’ve been.

A. He was a great soldier and he was good —

THE COURT: All he would’ve been able to

testify to was his character good; he’d believe him

under oath. I don’t think he’d’ve been able to elabo-

rate on it.

MR. JACKSON: Your Honor, I believe the

only question that Mr. Wright would’ve been asking —

THE COURT: I assume his character. I

don’t know about the other issues.

MR. JACKSON: Specific bad acts.

App. 34

MR. COLEMAN: If Mr. Jackson will allow

me to proceed, I believe I'll be answering those ques-

tions.

THE COURT: All right.

[86] BY MR. COLEMAN:

Q. Did you know Mr. Davis?

A. Yes, sir.

Q. How did you know Mr. Davis?

A. He was also in my platoon.

Q. Did you feel like you knew Mr. Davis rea-

sonably well?

A. Well, not really, I mean, he was a loner. He

was in my squad. I mean, I knew him as far as when

we were at war together.

Q. Okay. If there had been any trouble between

Mr. Navarrette and Mr. Davis would you have likely

known about it?

A. I would’ve known about it.

Q. Did you know about any?

A. No, not at all.

Q. Did you know the other defendants in this

case, Mr. Woodcoff, Burgoyne, Martinez?

A. Yes.

Q. You knew all of them?

App. 35

A. Yes.

Q. And how did you know all of them?

A. They were all in my platoon.

Q

And you served with them for some period of

A. Yes.

Q. During the time you were in Iraq?

A. During the RF One.

[87] Q. You met earlier today in the hall with

Mr. Wright.

A. Yes.

Q. Now, before today have you ever met him?

A. No.

Q. Did you ever talk to him?

A. No.

Q. Not in person, not on the phone?

A. Not at ail.

Q. Never contacted by him?

A. Never.

Q. Id like to visit with you very briefly about

an incident that happened in Iraq. I don’t want to

summarize a lot of trial testimony, but there was

App. 36

testimony about a night on a hill. Are you familiar

with what I’m talking about?

A. Yes.

Q. Do you remember when that was?

A. Ican’t recall the exact date.

Q. Were you there?

A. Yes, I was there.

Q. Were people drinking?

A. Yes. |

Q. Were you drinking?

A. Yes.

Q. During that period of time, did one of the

people there suggest doing a blood-brothers ritual?

[88] A. Yes, it was Specialist Davis.

Q. Mr. Davis suggested this?

A. Yeah, Mr. Davis. Yes.

Q. Okay. And that’s where you cut your hand

and mix your blood together and then shake or some-

thing like that?

A. Yes.

Q. Did you do that?

A. Yes, I did.

App. 37

Q@. Did Mr. Davis?

A. Yes.

Q. Did Mr. Navarrette?

A. Yes.

Q. Mr. Navarrette was there?

A. Yes.

Q. Did — who cut Mr. Davis’s hand?

A. He cut his own hand.

Q. You’re sure about that?

A. Positive.

Q. Let me ask you, was there any trouble on the

hill that night?

A. Yes. Martinez had got into a altercation with

Mr. Davis.

Q. It was Mr. Martinez?

A. Yes.

Q. Was Mr. Navarrette involved in that alterca-

tion?

[89] A. The only involvement he had was trying

to break it up.

Q. So Mr. Navarrette was there and he tried to

stop it?

A. Yes.

App. 38

Q. He didn’t hit Davis?

A. No.

Q. You saw that?

A. I saw that.

Q. With your own eyes?

A. Yes.

Q. Was Medic Wulff on the hill that night?

A. No.

Q. Did he see a blood-brothers ritual?

A. No.

Q: Did he see anything else related, anything

that happened on that hill?

A. No.

Q. After Mr. Davis was killed and charges were

brought against Mr. Martinez and Mr. Navarrette

and others, you’ve testified that Mr. Wright did not

contact you at all.

A. Atall.

Did the prosecution contact you?

Yes.

And did they speak to you at some length?

Yes.

Pr Oo Pp &

App. 39

[90] Q. And did they actually call you up here to

possibly testify at trial?

A. Yes.

Q. And if they had been interested in having

somebody who was on the hill testify about what

happened on the hill, would you have been willing to

tell the Court and the jury at that time what hap-

pened on the hill?

A. Yes.

Q. And would you have told them that Mr.

Navarrette attempted to stop an altercation between

or some movement by Mr. Martinez against Mr.

Davis?

A. Yes.

@. You saw and heard everything that hap-

pened on the hill that night?

A. Yes.

Q. And nothing was — you were here in this

courthouse and could've testified about what you saw

and heard. Is that right?

A. Yes.

@. But you were not asked to come into this

courtroom and give that testimony.

A. Correct.

Q. And you don’t know why.

App. 40

A. Idon’t know why.

Q. Did you — you knew about the murder after

the time it [91] came out. Right?

A. Yes.

Q. And you had your own memories of what had

happened on the hill. Did you think there was any

connection at the time between what happened on the

hill and what happened outside Fort Benning?

A. No.

Q. But if somebody had asked you about it, you

would’ve baldly have explained it?

A. Correct.

Q. And you would’ve testified.

A. Yes.

Q. The day that you came and were waiting to

possibly testify, do you recall what day of the trial

that was?

A. I think it was like the first day of the trial.

Q. Okay. You were in the waiting room?

A. Yes.

Q. Do you recall who else was there?

A. It was me, Sergeant Delisie. It was my

platoon sergeant at the time, he’s First Sergeant

Colter; and Davis’s parents.

App. 41

Q@. So Mr. Davis, the father, was in the witness

room that day?

A. Yes.

MR. COLEMAN: Pass the witness.

App. 42

IN THE SUPERIOR COURT

OF MUSCOGEE COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

4

: Case No. SU04CR-566

ALBERTO MARTINEZ and VOLUME 2

MARIO NAVARRETE,

Defendants.

VOLUME 2 of Five Volumes

Transcript of the proceedings heard in the above-

styled matter before THE HONORABLE WILLIAM

J. SMITH, Senior Judge, and a jury, commencing

at 9:00 a.m., January 24, 2006, at The Government

Center, Columbus, Georgia.

The Honorable Stephanie Liston, Deputy Clerk

Superior Court Of Muscogee County

x * *

[142] PROCEEDINGS

[9:00 a.m., Tuesday, January 24, 2006)

THE COURT: Are the jurors here?

DEPUTY SPIVEY: The jurors just got

here, Your Honor.

THE COURT: Very good. Is there anything

before we bring the jury in?

MR. WADKINS: No, sir, not from us.

App. 43

THE COURT: When they come out, just

have them remain seated and come to order.

MR. JACKSON: Your Honor, there may be

one issue. |

THE COURT: All right.

MR. JACKSON: Judge, on _ yesterday,

during my opening, I believe Attorney Wadkins had

the objection concerning the comment made with

respect to testimony from Medic Edward Wulff on the

hearsay objection. He would be the first witness by

the State.

THE COURT: Oh, well, y'all want to

address that then.

MR. JACKSON: I know the Court wanted

to address it.

THE COURT: Go in, if you would, and let

the jury know that we’re working, but we’re taking

[143] up a matter of law. So have them just make

themselves as comfortable as they can back there and

we'll be with them shortly.

DEPUTY SPIVEY: All right, sir.

MR. CONGER: Your Honor, we told the

Court up at the bench yesterday what we expected to

prove. But the gist of it is that on the night of - a

night in June or July of 03 in Kuwait, after they'd

returned — the soldiers had returned from Iraq,

Specialist Edward Wulff, a medic attached to the

company and the platoon that —

App. 44

THE COURT: Medic, did you say?

MR. CONGER: Medic, yes, sir — that all

these people were in will testify that he was a good

friend of Specialist Richard Davis; that he was basi-

cally Davis’s only friend over there; that they talked

regularly; that he was Davis’s best friend and had

known him for six months since they'd been in Ku-

wait and Iraq and knew him throughout the whole

time the soldiers were in Iraq. And during that time

they had established a relationship. They would talk

to each other regularly, tell each other important

matters. We expect the evidence to show that Davis

placed a lot of faith in Wulff - W-U-L-F-F is his name

— [144] and confide in him. And then on — we expect

on a date we believe in June of 03, could’ve been July,

before the troops came home, the — just like Mr.

Jackson said in his opening statement, the victim —

they were over there. It was after midnight and Wulff

was asleep and he was awakened by Davis And

Davis told him that he had been — that he needed

some help for a cut he had on his hand and that Wulff

looked at it and he had a nice — a neat cut several

centimeters long on his hand. So Wulff treated —

THE COURT: So Wulff is a medic, not a

doctor. Is that correct?

MR. CONGER: Yes, sir. Wulff’s a medic,

an enlisted person.

THE COURT: All right. Excuse me.

App. 45

MR. CONGER: And he treated the wound.

He did the treatment he described that, tried to close

it up. He said that Davis had been drinking and that

he asked Davis what happened to him and that Davis

made the statement that he was playing a game

called “Blood Brothers” with Navarrette and Marti-

nez and that he got cut in the process and that

Navarrette and Davis [sic] had choked him and

* ** *k

[153] it’s denying us the right to confront the witness

against us. Of course, Davis is dead; however, I think

there’s another prong that they have omitted from the

this. My reading of the necessity clause is that they

have to, one, show the witness is unavailable, which

they say he’s dead and, therefore, is unavailable in

this case. But they also have to show, I believe, that

there’s no comparable evidence available to the

proponent. And the comparable evidence in this case,

we would say there were other people that were

there. In his statements, as I’ve read them, Mr. Wulff

is going to say, or I would expect him to say, that

there were up on the hill and they were drinking. So

the person that should be coming to court is someone

who had a firsthand, eyewitness account of what

happened there, not Mr. Wulff, who’s being told

something later on after he’s been woken up from his

sleep.

Also, they’re correct. They have to show some

kind of circumstantial guarantees of trustworthiness.

App. 46

THE COURT: Let me go back and have

you elaborate somewhat more on what you've re-

ferred to as “no comparable evidence.” There were,

quote, [154] “people on the hill and they were drink-

ing.” Would be a little more — elaborate a little more

on that. I don’t understand what you're —

MR. FLOURNOY: Well, that’s something

we may need to voir-dire this witness before you rule

on this, because that’s simply what he said in his

- statement. We don’t know who those people are.

THE COURT: “People on the hill,” I don’t -

MR. FLOURNOY: Where it occurs is in

Iraq on a hill supposedly, according to what Davis

told Wulff, is that there were some people up on the

hill and he claims that my client and Mr. Navarrette

did some kind of blood-brother thing. Then they beat

him and choked him and — but then he went and got

treatment. But we don’t know who these other people

are or whatever. Mr. Wulff does; and if they’re people

that were in the unit or whatever, then they’re people

that the district attorney could’ve subpoenaed to be

here, or investigated and had those people who had a

firstiiand account of what happened come into court

and testify about it.

We're having basically a hearsay problem. We

can’t confront Davis about the circumstances. All

we're doing is confronting a statement he gave

* * *

App. 47

[156] MR. FLOURNOY: Well, we would

contend that there were other people on the hill and

that they would’ve been in the best position. And it’s

not our job to bring them to court. That’s the DA’s job

to bring those people to court; and if they’re the ones

who actually witnessed it, that’s the person who

should be testifying, not somebody who was woken up

in their sleep and told a story that they didn’t witness

firsthand.

But, also, regarding the circumstantial guaran-

tees of trustworthiness, there are several factors that

courts have looked at. One of them is the motive to lie

or mislead. And in this case, we would contend that

Davis may have been in some kind of blood-brother

ritual and he cut his own hand and had to explain to

the medic how he got this cut. Instead of taking credit

for it, he blamed some other people for it. So he had a

motive, reason to lie, so he wouldn’t get in trouble.

Also, another indication that the declarant may

not have been telling the truth and may not have

been telling the story correctly is whether or not he

was under the influence. And in this case Wulff is

going to say that Davis — or

* + *

[177] A. Yes.

Q. All right. And — okay. What did you do when

you saw this?

A. I cleaned it out the way it would be cleaned

out normally, and I closed it with Steristrips and just

App. 48

asked him how it happened. And he told me he was

going to be blood brothers and —

Q. Let me ask you something. Had he been

drinking at this time?

A. Yes, he was.

Q. All right. Now, tell us what happened, what

he stated to you, please, sir.

A. Excuse me.

Q. Tell us what he stated to you, please.

A. He said that he was up on the hill drinking

with Martinez and Navarrette, and they were just

hanging out drinking and said they wanted to become

blood brothers. And he stated that they had hit him

and they had choked him. And I think he said, you

know, he was pretty — you know, he was feared, you

know. He had a lot of fear. So I just told him, you

know, “You guys were just drunk, you know. Things

happen when you're drunk.”

And he said that he felt like, you know, that they

were going to kill him. And I was like, “Don’t

* * *

[179] Q. And you said that he said, Davis said

he was afraid they would kill him?

A. Yes, sir.

Q. All right, sir. And you tried to make him feel

better and told him that it was just —

App. 49

MR. WADKINS: Your Honor, I’m going to

object to the leading.

MR. CONGER: All right. I won't.

BY MR. CONGER:

Q. What did you tell him?

A. Ijust reassured him and let him know that it

was just the alcohol and I’m sure it was nothing

serious.

Q. All right. Now, did you report this to anybody

else in the United States Army over there?

A. No, I did not, sir.

@. Why not?

A. Because that’s a violation of the patient-

privacy act of 1974.

Q. All right. Did you ask Davis to report it or if

he was going to report it?

A. I told him to report it, but he just told me

that all he would say was he was sliding down the hill

and he got his hand caught in a thorn bush.

@. He said what?

[214] A. I had proceeded to get out of the front

seat and I believe everybody else got out at the same

time. And I heard an argument and some people were

App. 50

arguing in Spanish. I assume Martinez and Navar-

rette, and then I proceeded to walk off into the wood

line.

Q. All right. You heard some argument in

Spanish and you said —

A. Yes, sir.

Q. -— some people were arguing. Was there any

English being spoken?

A. No, sir, not that I heard.

Q. All right. Do you know what each individual

person was doing besides yourself? Do you know what

anybody — do you know what Davis was doing —

A. No, sir.

Q. -at that point?

A. No, sir.

Q. How about Navarrette and Martinez?

A. No, sir.

Q. How about Burgoyne?

A. No, sir.

Q. Now, what did you do?

A. I went over — | walked off into the woods.

The car ride had made me pretty queasy. I went over

to vomit.

App. 51

[264] and then I hit him again. At this point he wasn’t

fighting me, and I took as, you know, truce or walking

way. At that point I didn’t hit him, and he started

walking towards Martinez and Navarrette’s area, and

that’s when he got stabbed in the side by Martinez.

Q. Now, how did — describe to the jury how that

happened, as you say, Martinez stabbed him in the

side.

A. Well, Martinez stabbed him in the side. Well,

when Davis was walking this way, Martinez came

across right-handed and hit him in his left side, right

here, where the lung’s at, and that’s where he hit

him. And when he hit him, he fell.

Q. Who fell?

A. Davis.

Q. Fell to the ground?

A. Yes, sir.

Q. And after Davis fell to the ground, what

happened next?

A. Martinez — or Navarrette intervened said,

“No, no, no, you can’t do this.”

Q. Try to keep your voice up a little bit, if you

can.

A. Yes, sir. He said — Navarrette said he

couldn’t, tried to intervene. And at this point I saw

App. 52

[265] when Davis fell, and Navarrette was talking to

Martinez saying, “You can’t do it. You can’t do it.”

And I said — I was looking at Davis when I saw

him. I saw frothy blood. I saw his shirt torn a little

with a hole inside and there was some blood on it.

And I looked at Martinez and I knew, you know, he

just had — he had that knife in his hand, and I looked

at him. I was afraid at first because I didn’t know

what was going on. And I knew — | noticed once he hit

the ground and seen that knife, you know, he was

meaning business, more than what I wanted, but I

seen the blood in his eyes and knew —

Q@. Did Martinez say anything at that point?

A. No, sir. He was just — at that point, that was

real quick. He just stuck him but didn’t say nothing

at that point. But when we started — when Navar-

rette intervened, he started saying, you know, “He’s

going to tell. He’s going to tell, you know. I got kids.

He’s going to tell on me. He’s going to tell.” He kind of

like was trying to —

@. Who said “He’s going to tell”? Who’s making

those statements?

A. Martinez.

Q. Martinez, okay.

[266] A. I didn’t quite know what he was trying

to say at that point or what he was meaning by “he

was going to tell,” and there was some kind of confu-

sion going on because he had nothing to do with what

App. 53

I was doing with Davis, nothing at all. And he came

out of nowhere and hit him with the knife, you know.

He didn’t say nothing in the car or nothing. He just

came out and just stuck him like —

Q. Now, at that point, you say Navarrette tried

to intervene and said something to him. Did you try

to — |

A. Yeah, I was —

Q. -— say something to Martinez about what he

was doing at that point?

A. I was telling him, I said — well, at that point

I was kind of, you know, looking over Davis and

looking at, you know, Martinez and Navarrette.

Navarrette was — kind of had things under control,

but I kept my distance from where I was at about

three feet away, three or four feet away. And I was

looking at Davis, but I was saying to him at that

point, you know, we started discussing it, like, “You

don’t have to do this. You got kids,” you know, and

“We can leave him here or we can give him medical

attention but we don’t have to kill him over some-

thing like this,” you know. It was something small,

something simple, you know. He didn’t need to get

[267] stabbed over, you know. I started to come up

with any excuse that we could, even to leave him

there if we had to, you know wha I’m saying, so he

wouldn’t stab him any more, you know. But it started

escalating. He just — he had it in his eyes. He was

going — determined to do it. And, you know and —

App. 54

Q. Did you or Navarrette at some point in time

stand in — if Davis is here, did you or Navarrette at

some point in time stand in between Davis and

Martinez while Martinez had the knife in his hand

after Davis was first stabbed?

A. Yeah, Martinez had the knife and Navarrette

was next to him and I was kind of like in the front of,

you now — kind of back in front of — like, Navarrette

was on the left of me and Martinez was here. I was

kind of like right behind Navarrette to the right

looking at Martinez. But we intervened for just about

— a short amount of time, until about — you know — I

can’t guess, like five minutes, if that. Five or 10

minutes maybe. It’s hard to tell the time. You know, I

wasn’t really worried about the time, but it was about

around that range. And it got to a point where I

started getting real frustrated and he wasn’t letting

go of the knife. He wouldn’t let go one bit.

Q. Did anybody else have a knife in their

hands?

[268] A. No, sir.

Q. Martinez was the only one?

A. Yes, sir, at that time.

Q. Now, you’re — you say you and Navarrette

are pleading with him at that point?

A. Yes, we pleaded with him.

Q. What happened next?

App. 55

A. Me, I got angry and I stepped away and I

made a choice. I left him there. I dishonored him. I

left him and walked away. And I said to Navarrette,

you know, “It’s no use. He’s got to do what he’s got to

do,” and I walked away and went back to the car.

Q. And at that point when you walked away

and went over the car and kind of left the situation,

what did Navarrette do at that time?

A. Well, he-

Q. Did he walk away as well?

A. Yeah. I went first but he kind of followed

suit. He followed suit and we went back to the car

and that’s where we stood.

Q. And when you and Navarrette stood by the

car and walked away, what did Martinez do at that

time?

A. No later than two seconds later, he was on

him. He stabbed him first somewhere in the upper

abdomen, lower chest area; and as soon as he stabbed

him, Davis

OK M ok

([302] And from there, we started throwing blows

again and then out of nowhere, Martinez comes out

and just hits him in the side with his knife.

And, of course, I didn’t know or nobody else knew

he had a knife until I saw Navarrette trying to stop

him for some reason, and I saw Davis laying on the

App. 56

ground. You know, he had — I was trying to examine

him. I looked down at him and he was laying on the

ground like he’d been hit really hard in the stomach,

but I wasn’t sure. And Navarrette was over there

trying to calm him down, and then I realized — I

looked at his right hand and he had a knife in his

hand and he was acting like, you know, if Navarrette

wasn’t there, he was acting like he was going to keep

going, you know. But I saw blood in his eyes. I saw

what he was doing, and it kind of scared me. It scared

everybody there.

So Navarrette and me walked over to him. I

didn’t get too close to him. Navarrette was with him,

said some stuff in Spanish, that’s all I know, there.

And then he said something about his kid, yelled out,

Martinez did, you know, “I got a kid. I got a kid,” you

know. And from there, you know, I kind of saw where

he was coming from. But

* * *

[314] Q. You said he hit one of the dancers in

the face with a quarter?

A. Oh, no, that was before. We — that was like

about a year before. That was before we went to Iraq.

Q. How long had y’all been back in the States

when this thing happened?

A. About four days.

Q. So this happened prior to y’all going on your

two- or three-week leave?

App. 57

A. Roger that, sir. About three or four days,

three.

QUESTIONS BY DETECTIVE CULBERSON:

Q@. You mentioned that Navarrette tried to

make some attempt to keep Martinez from stabbing

or doing any more to Davis?

A. Yes, sir.

Q. And you mentioned that Woodcoff just stood

there?

A. Roger that, sir. He was just off — you know,

standing there.

Q. He never moved? He just stood there the

whole time?

A. Roger. Me and Navarrette actually were the

only ones trying to keep him from doing what he

* * *

(371} — you know, you kind of see. I didn’t see Wood-

coff but I, could kind of see Martinez and Navarrette

there, and Woodcoff was kind of over to the right

here

Q. Right. You got out on one side of the automo-

bile and they got out on the other side of the automo-

bile. Is that right?

A. Yes, sir.

Q. So there could’ve been some things going on

over there that you didn’t see?

App. 58

A. Yes, sir.

Q. Okay. Now, y’all had a discussion about this

thing. Did Navarrette tell you that he did get a knife

from him?

_ A. Navarrette, yeah, we had a discussion. He

did tell me he got a knife from him.

Q. And then y’all talked about how maybe he

got another knife.

A. Yeah, he might’ve got another knife. He said

that — Martinez said that, verbally, he said that to me

in the car when we drove back that next day looking —

smelled the aroma of the body, he said that the knife

was given to him by Woodcoff, that the knife was

given to him.

Q. That Woodcoff gave him the knife?

A. Yeah, that’s what he said.

[372] Q. Okay. Now, while you and Davis were

having altercations, I believe your testimony is that

that’s when out of nowhere Martinez comes and stabs

him in the side?

A. Yes, sir.

Q. And what did you do at that poini?

A. At that point when he stabbed him in the

side, he fell and right then Navarrette went to talk to

him and I kind of stepped in between Davis and

Martinez and was just talking.

App. 59

Q. Okay. And then you both at that point tried

to stop Martinez from doing any further harm?

!

A. Yes, sir.

Q. And, in fact, even tried to talk Martinez into

taking Davis to the hospital. Is that right?

A. Yes, sir.

Q. And Navarrette was involved in trying to get

him to do that?

A. Yes, sir.

Q. Of course, now, yall didn’t have any cell

phones or anything out there, did you?

A. No, sir. I don’t know if the other guys had the

other cell phones. I didn’t have a cell phone on me.

* * +

[384] THE COURT: Mr. Wright, would you

be more comfortable seated? I will allow you to ask

questions seated, given the circumstances, if you

wish.

MR. WRIGHT: Well, I appreciate that,

Judge. I'll hang on for a minute.

BY MR. WRIGHT:

Q. But nobody helped him do that, did they?

A. Can you repeat that?

Q. Nobody helped him kill Davis.

App. 60

A. No, sir.

Q. Okay. So it was your belief that because you

were there and a murder was committed that you

could’ve stopped from happening, although you tried,

that you were just as guilty as the killer?

A. In my eyes —

Q. In your eyes.

A. -— yes, sir. I killed him here, sir; I didn’t kill

him here [Gesturing]. You see. I’m not here to save

myself. I put myself out here, and I’m not trying to

lie. All I know is that if you’re there and you see

something like that happen, you’re just as good as

dead. You’re just as guilty as anyone else there.

Q. That’s in your mind?

A. In my mind, yes, sir.

* * *

[416] A. I was there but, I mean, I don’t recall

being in the ritual, you know, with the blood-brother

thing with — I remember who it was about. It was

about Davis and Navarrette. He says I was there, but

I don’t — I can’t remember. You know what I’m saying?

I can’t remember if I was there or not to say that for a

fact I was there, but I wasn’t, you know. I can’t even

tell you. 1 can’t remember that.

Q. You can’t remember whether or not you were

there or not?

App. 61

A. Yeah, I mean, back in Alpha, back in there,

you know, back in Iraq, I mean. I can’t remember if I

was there. I don’t remember doing a blood ritual with

Davis.

Q. And isn’t it true that Navarrette asked you

to help him stop Martinez from killing Davis?

A. Yes, sir.

Q. And also ask you to help him take him to the

hospital as well?

A.- Yes, sir.

MR. WRIGHT: That’s all I have.

THE COURT: Very well. You may step

down.

THE WITNESS: Yes, sir.

[WITNESS STEPS DOWN.]

[550] here to celebrate, and whatever your intentions,

whatever you're planning to do is not going to hap-

pen. So please give me the knife.”

Q. Okay. Were you at that point - well, what

happened then, after you talked to him about that?

A. Well, I can see in his eyes that he — he was

kind of upset, but he didn’t really want to give me the

knife. So I step — I took a step close to him and I

extended my hand. He pulled his hand backwards,

and I told him again. I repeated that he had a family;

App. 62

that we don’t need this right now; we don’t need to

get in trouble; that I’m going to let him do whatever

he thinks he’s going to do. And I extended my hand

again, and that’s when he — I met — as soon as I was

going to grab his hand, he — I can see his hand mov-

ing forward slowly, and I got the knife from him.

Q. Okay. So, in fact, he did give you the knife.

A. Yes, he did.

Q. Okay. Then what did you do next?

A. After I took his knife away, I turn around.

Burgoyne was sort of facing me, because when I turn

around and followed Martinez to see where he was

going, he was going back to the car, to the back of the

car where Mr. Burgoyne, was standing. I didn’t see at

the time where Mr. Davis is. I see —I follow Martinez,

and when he’s coming past Burgoyne, I see Burgoyne.

So I turn around and I’m

* * *

[555] A. But I did not see no knife.

Q. All right. What about Martinez?

A. Mr. Martinez, I could not see him because I

was directly behind him, and | was leaning towards

the window, but I had a clear shot at whatever Mr.

Burgoyne was doing with his hands and knees.

Q. Okay. Now, when y’all left there — well, prior

to going out there and the car stopped, was there any

App. 63

conversation that you heard about anybody doing any

harm to Mr. Davis?

A. The only thing I did hear was somebody

asking the other person, “Where do you want to do it,

homes?” That’s the only thing I heard. I didn’t say —

didn’t see who said it, and I didn’t know what they

were talking about.

Q. Okay. Now, you’re in the car. On the way

back was there any talk about burning Mr. Davis?

A. No, after everybody got in the car, nobody

had a discussion about burning the body or anything

like that. Everybody got in the car and we drove back.

I'm assuming we were going back home, but then

they stopped — they stopped in a gas station that was

kind of en a hill, because I remember the car being

slanted and the bright lights of the store hitting

inside the car and Burgoyne getting off.

Q. Okay. Then Burgoyne got out and you don’t

know if he bought, what he bought or anything. Is

that right?

* * *

[561] And I went back —- stepped back next to a

tree and I relieved myself, and | was just looking,

seeing what he was doing.

Q. Okay. Was there any talk about you being a

lookout?

App. 64

A. No, there was no such thing about him

telling me that for me to be a lookout or anything.

None of that.

Q. Okay. Now, let me take you back now to

when yall were in Iraq, and I believe there’s been

testimony about taking a blood oath.

A. Yes. In Irag one week when the war finished,

we were held outside the international airport,

probably like 10 miles away from the main entranice,

and were in like in a hangar-type of warehouse where

they put planes, because there was a runway there

for little airplanes. And there was a hill next to that —

we called it a hill. It was actually just a big sort of

mountain type of terrain, but with a road all around.

It was like an observation point. And next to it was a

reserve unit. They were National Guard that were

specialized in purifying the water for us to drink.

And one night we had — they were talking about

getting some alcohol. Now, alcohol is illegal and is

banned from Iraq. So we were actually not supposed

to be drinking. But the National Guard people, they

had some contacts that they can get alcohol. So we

buy alcohol and we get [562] together, some of us.

Myself, I remember we had two occasions that went

to that hill and drank alcohol. One was during the

day and one was during the night. And the first

occasion, Mr. Martinez, myself, PFC Rodriguez,

Sergeant Pruitt and that’s about it — and Woodcoff

were there. Now, we drank and we had a conversa-

tion.

App. 65

Now, on the second time we went around, which

was a night, Mr. Martinez wasn’t there. Mr. Woodcoff

wasn’t there. That’s when we made the blood oath.

Mr. Burgoyne was there, Sergeant Pruitt, PFC Rodri-

guez and myself and Mr. Davis. Mr. Davis was sit-

ting, the second time, was sitting in the middle. We

were passing the bottle around. He would pass it to

Burgoyne, Burgoyne would pass it to Pruitt, Pruitt to

Rodriguez and Rodriguez to me and so forth. We were

having a conversation and we come up — they had

come up with this “Let’s do a pact. Let’s cut our hands

and bleed and shake on it that we will take care of

each other.” So we did. And I cut my hand and Mr.

PFC Rodriguez did his. Pruitt did his. Burgoyne did

his. Davis, he was already had too much drink now.

He was jugging that bottle. He wasn’t sharing that

much, but he cut his hand but did not cut it in the

palm. He cut it on top and he made a big cut that he

asked me, “Do you want me to cut you?”

I’m like, “No, no, I already cut myself.”

* * *

[563] “Well, do you need blood?” and he grabbed

my hand and put his hand on top of mine and did this

motion, and I can feel all the blood. [’m like, “Man,

you're bleeding too much.”

And Rodriguez like, “What did you do?” And he

looks at the cut and remarked, “Let’s go.” So we get

up and we leave. I, on the way back to where every-

body was living at, I passed out behind a track, which

Mr. Burgoyne already specified is a tank. Has a ramp.

App. 66

So that’s where I vassed out. After I threw up, I

passed out. Did not — I was not aware where Mr.

Davis went, but I did see him next morning with a

bandage on. Now, Mister — our medic did not ask me

— he came and I asked him, “Hey, how bad is Davis

‘ eut?”

He said, “He’s got a pretty nasty cut.”

“Really? But did you clean it up?”

He said, “Yes, I did. It’s all taken care of.”

“Okay. Good.”

And he’s like, “How did he do it?”

I told him, “Well, we did a blood oath and he cut

himself too much.” And Rodriguez, I told him the

same thing, he’s like — he’s like, “Man, that’s silly. I

don’t know what you guys doing.” And that’s about it.

Q. Now, you also gave a statement to the police.

Is that correct?

A. Yes, I did.

ok 4 *

[593] A’ Yes, he was.

Q. Okay. Yall had been drinking?

A. Yes.

Q. Y'all were drunk?

A. Yes.

App. 67

You said Davis was real drunk.

Yes.

And y’all did this blood-oath thing?

Right.

Where you cut your hand?

rere *

Right. We cut our hand in the palm, right in

the palm.

@. But he cut the back of his hand?

A. Yes. He went ahead and cut the top of his

hand.

Q. This blood oath, is that to look after each

other?

A. Yes. The blood oath, we actually — I don’t

recall that movie we saw it, but I seen it; and it’s an

oath you take where you shake on blood and you

become brothers, blood brothers; and you promise to

each other you’re going to take care after each other

and no matter what happened, you're going to stick

together.

Q. So when Burgoyne called you “little brother”

the night y’all went back out there to the wooded area

by Milgen Road, that’s because of this?

A. Yes.

* * *

[658] did to determine whether he intended to be in

on this crime or not.

ver

App. 68

And, ladies and gentlemen, the Judge is going to

charge you one other or many other important princi-

ples of law, but one of them will be the law of conspir-

acy. And the Georgia law of conspiracy is that a

conspiracy is an agreement by two or more people to

do an unlawful act. And the existence of a conspiracy

may be proven by acts and conduct as well as by proof

of an express agreement.

When persons associate themselves in an unlaw-

ful enterprise, any act done by any party to the

conspiracy to further the unlawful enterprise is

considered to be the act of all the conspirators.

Now, ladies and gentlemen, the Court will also

tell you, the presence, companionship and conduct

before and after the commission of the alleged offense

may be considered by you in determining whether or

not such circumstances give rise to the inference of

the existence of a conspiracy.

Now, ladies and gentlemen, I submit to you that

in this case that we’ve got right here, that Navarrette

and Martinez both wanted Davis [659] dead; that the

evidence shows a conspiracy between these two early

on.

You know, Davis was mistreated, beaten up by

these two in Iraq. Wulff, unimpeached, no reason to

not tell the truth, came in this courtroom on two

occasions and said that — Medic Wulff, that Davis

came to him cut, described what had happened, the

blood-brother thing; said he was cut with a box cut-

ter; said that Martinez and Navarrette beat and

App. 69

choked him; and said that he was afraid they were

going to kill him.

And then some months later, Martinez and

Navarrette are both present when he is killed. That, I

submit to you, allows you to draw the inference of the

existence of a conspiracy. That didn’t happen out of

the blue. Wulff thought it was child’s play. He thought

it was drinking activity; but I submit to you, ladies

and gentlemen, a month later they’re there when he’s

killed. And we know Martinez did the killing. That’s

almost — that’s unrefuted and uncontradicted in this

courtroom. Nobody has testified anyone other than

Martinez killed Richard Davis.

Now, ladies and gentlemen, on July 12th or 13th

they all go out. In the club and before

* * *

[665] Navarrette in his testimony said he wasn’t

thinking straight. In his statement, he said the

statement — he implied the statement was not re-

corded properly. Detective Blackstock said that it was

taken down word for word.

Navarrette also said that Medic Wulff didn’t look

at his hands over in Iraq. But we put Wulff back up to

say that he did. He said Burgoyne was at the blood-

brother incident in Iraq. Wulff said Davis said he

wasn’t there, and nobody else said Burgoyne was

present at the blood-brother incident either. He said

that he found out he was charged with murder after

he gave his statement. Ladies and gentlemen, you

App. 70

know from the testimony of Detective Blackstock that

defendant Navarrette filled out this form and signed

it or at least signed it. And up here at the top it says

he was charged with murder. Detective Blackstock

said he told him he was charged with murder.

Now, ladies and gentlemen, Navarrette is not

telling us the truth about these smaller things. So I

submit to you, you are authorized to consider that he

ain’t telling the truth about the rest of it either. You

know, who’s going to help do a murder with three

people who can turn you in? [666} Would Martinez

kill Davis around people he couldn't trust, who

wouldn’t help him, that he was afraid of? And he was

right. He wasn’t turned in. He was only caught be-

cause Burgoyne ran his mouth about it. But not to

the police, to a fellow soldier.

This is not a case, as the Defense would have you

believe, where someone is in the presence of a crime

and is charged and caught up with the crime when

they didn’t do anything.

Under these facts and circumstances I submit to

you, because of what happened in Iraq, because of

what happened at the club, because of what hap-

pened in the car, because of what happened on Milgen

Road, across the street, you're authorized to consider,

based on these acts and circumstances of Navarrette

and what he did, that he was a party to this thing.

He’s not telling the truth about the little things. His

plan as he mentioned it, is absolute hogwash.

App. 71

Now, ladies and gentlemen, Martinez didn’t kill

Davis in front of somebody who was going to not help

him cover it up. Every one of them helped him cover

it up, including Woodcoff — everybody, everybody. All

jour of these men act like they’re guilty. The actions

of each one of

{672} But, ladies and gentlemen, we read the

statement by the police officer and he testified —

officer Blackstock said, as you will recall, “Davis was

being rude to a girl. We got in Martinez’s car. I got

into a fight with him. After I got into a fight, every-

body said that they were going to go home. Davis was

in the middle asleep. Martinez started driving. Bur-

goyne started hitting Davis. As we were pulling out, I

started hitting Davis.

“I remember pulling off the road in the tree line.”

And these are his words, not mine. “Burgoyne got

pissed off. And Martinez said at this point, ‘Do you

want to do it here, homes?” Now, obviously, he meant

do you want to kill him here. And we know that

Martinez and Navarrette are friends from Iraq. Davis

said they were beating on him and choking him in

Iraq. He thought they were going to kill him. And

Martinez says, “Do you want to do it here, homes?”

Burgoyne pulled Davis out of the car. Navarrette

said he saw Martinez with my knife, his knife. And he

asked, “What are you doing? And I asked, “‘What are

you doing?’” He, Martinez, said he fucked up, homes,

App. 72

speaking to me. “I asked, ‘What are you going to do.’

He said, I’m going

[674] out? He told the police he cleaned it out the next

day himself when he was arrested.

And also in his statement he said, talking about

going back to move the body, “So we drove to the wood

line. I was standing outside looking at the road. I

don’t know what B was doing, then B told me, ‘Let's

go. Let’s go.’ And then Martinez drove up’ we got on

and drove off. The next day I woke up in the bar-

racks.”

Now, ladies and gentlemen, Martinez, according

to Navarrette, Woodcoff and Burgoyne, is the one who

killed him. Navarrette, I submit to you, is guilty of

concealing a death. We understand he went back. He

was the lookout. He didn’t want to admit it. He

claimed he had a plan but he went with them. He

went. back. .

Ladies and gentlemen, I submit to you that

under this evidence, with the treatment of Navarrette

and Burgoyne of Davis, the way they had treated him

in Iraq, he and Burgoyne beating on him in the car,

that Navarrette was not surprised when Martinez

said, “Let’s do it here, homes.”

His actions before and after the crime, not what

he says, his actions in having animosity with Davis,

his actions after the crime in covering it up, in hiding

the body, I submit to

App. 73

* * *K

{676} worried about Davis. That Davis was squared

away. But he didn’t help Davis. He didn’t report as he

testified to. He didn’t teli his chain of command. He

left him in the woods. And we’ve got his word, his

word on all of that.

Navarrette is lying about the little stuff in his

statement, about Wulff, about what happened in Iraq,

about doing the cover-up. He’s lying because of his —

he knows he’s guilty and he’s got to explain his ac-

tions in some way that are not consistent with the

guilt that we — I submit to you, that he’s got. He’s

even saying he’s not guilty of concealing a death.

Ladies and gentlemen, in Georgia law that

simply means doing an act to conceal from law en-

forcement the cause of a person’s death. And when he

went along to move that body, I submit to you, he’s

guilty of that. Woodcoff’s pleading guilty to it, and he

did not go along to move the body. So that’s how broad

the law of concealing a death is.

Now, ladies and gentlemen, three witnesses say

Martinez did it. Using good common sense, recogniz-

ing the law in this case, the law of intent which says

that the State can show the criminal intent of a

person by acts and conduct of

[735] Martinez’s statement, let’s do it here,

homes. Martinez’s statement, he fucked up, homes.

Circumstantial evidence. Credibility. The Court will

App. 74

charge you that you are to decide the credibility of all

the witnesses, who's telling the truth, who’s not

telling the truth, including this defendant, Mario

Navarrette because he decided to take the stand. You

must judge his credibility as well.

You heard testimony from Mr. Davis, the crime

scene investigators that took the photographs, differ-

ent things like that. You heard from Medic Wulff, Mr.

Davis’ best friend. As heard time and time again, Mr.

Davis may have not had that many friends, he went

to his buddy. “They choked me, they cut my hand,

they punched me.” Why would Medic Wulff lie. Why

would he make up that story. He’s out of the Army,

even though he’s working on the base, he doesn’t have

any dealings with any of the people that were in-

volved. Why. Why would he make that story up.

But one thing that’s interesting about the defense

attorney's argument about Medic Wulff, there’s two

pieces of testimony that they left out in their argu-

ment. When Medic Wulff goes up to Martinez and ask

him, after they get back to Fort

[750] The body being found like that, that’s what

they have to remember. That’s their last image of

their son. They don’t never get to see him again. His

little girl can visit him while he’s been here the last

two years; can they visit their son? No. Will they ever

talk to him again? No. Can Mr. and Mrs. Davis have a

grandchild, because their daughter has Downs Syn-

drome? No. Think about the true victims in this case.

App. 75

Also this blood-brother oath. Where’s Pruitt?

Why didn’t they call Pruitt if Pruitt was there?

They’re in the same squad, same platoon. Why didn’t

they call Pruitt? He could have straightened the

whole matter up. Why didn’t they call him. Why

didn’t they call Rodriguez? He could’ve straightened

the whole matter up about the blood-brother oath.

Why? Third ID just got back; they started coming

back the end of December. Why didn’t they call him?

Why, because it wasn’t the truth. That’s why they

didn’t call him.

There has been no evidence that Navarrette

wanted to go to take that young man to the hospital.

That statement, well I didn’t know I was being

charged with murder. It was right there. It’s right

there. State’s Exhibit Number

Count 1

Count 2

Count 3

Count 4

Count 5

Count 6

App. 76

IN THE SUPERIOR COURT

OF MUSCOGEE COUNTY

STATE OF GEORGIA

State v. Mario Navarrette

Murder ___ Guilty V_Not Guilty

Felony Murder ¥_ Guilty __ Not Guilty

Aggravated Assault ¥ Guilty _ Not Guilty

Poss. of A Knife

During the Commis-

sion of a Crime ¥ Guilty _ Not Guilty

Armed Robbery ___ Guilty V_ Not Guilty

Concealing a Death “~ Guilty _ Not Guilty

Foreperson /s/ [Illegible]

Date 1-27-06

IN THE SUPERIOR COURT OF MUSCOGEE COUNTY, GEORGIA

FINAL DISPOSITION

STATE OF GEORGIA CRIMINAL ACTION NO SU 04 CR 566

Vs OFFENSE(S) Ct (1) — Murder; Ct (2) - Felony

Murder; Ct (3) - vated Assault; Ct (4) — Poss

Marlo Navarrete Murder, Ct (3) — Aggravated As at

Marlo Navarrete of a Firearm or Knife during the Commission of a

117901114 / 108623935 the Death of Another

SID NUMBER December TERM, 20 05

O PLEA VERDICT OC) OTHER DISPOSITION

0 NEGOTIATED JURY GUILTY ON CO NOLLE PROSEQUI ORDER

O NON-JURY COUNT\S) 2.3.4.6 ON COUNT\S)

O GUILTY ON NOTGUILTYON (0 DEAD DOCKET ON

COUNTS) __ | COUNTS) 1. 5 COUNT(S)

0) NOLO OC) GUILTY OF

CONTENDERE INCLUDED

ON COUNT\S) __ OFFENSE(S) OF _

0 TO LESSER ON COUNT(S) __

INCLUDED

OFFENSE(S)___

ON COUNT(S) __ (SEE SEPARATE ORDER)

O DEFENDANT WAS ADVISED OF HIS/HER RIGHT TO HAVE THIS SENTENCE

REVIEWED BY THE SUPERIOR COURTS SENTENCE REVIEW PANEL

& FELONY SENTENCE O MISDEMEANOR SENTENCE

WHEREAS, the above named defendant has been found guilty of the above stated offense,

WHEREUPON, it is ordered and adjudged by the Court that said defendant is hereby sentenced to

confinement for a period of Ct (2) - Life; Ct (3) - 20 years to run concurrent with Ct (2); Ct (4) — 5 vears

to run consecutive to Ct (2); Ct (6) - 10 years to run consecutive to Ct (2)

In the State Penal System or such other institution as the Commissioner of the Georgia

Department of Corrections may direct, to be computed as provided by law. HOWEVER, it is

further order by the Court

©) 1) THAT the above sentence may be served on probation

() 2) THAT upon service of the above sentence, the remainder of may be

served on probation PROVIDED that the said defendant complies with the following

general and other conditions herein imposed by the Court as a part of this sentence.

OQ GENERAL CONDITIONS OF PROBATION

The defendant, having been granted the privilege of serving all or part of the above-stated

sentence on probation, is hereby sentenced to the standard general conditions of probation:

QO 1) Do not violate the criminal laws of any governmental unit.

0 2) Avoid injurious and [illegible) habits - especially alcoholic intoxication and narcotics and

other dangerous drugs unless prescribed lawfully.

0 3) Avoid persons or places of disreputable or harmful character.

Q 4) Report to the Probation Officer as directed and permit such Officer to visit him (her) at

home or elsewhere.

LL ‘ddy

C) 5) Work faithfully at suitable employment [illegible] as may be possible.

C6) Do not change his (her) present place of abode, move outside the jurisdiction of the Court,

or leave the State for any period of time without prior permission of the Probation

Supervisor.

() 7) Support his (her) legal dependents to the best of his (her) ability.

QO 8) Defendant shall submit to urinalysis at the request of the Probation Officer for testing or

dangerous drugs, narcotics, or controlled substances. Defendant shall be liable for all

costs of urinalysis.

QO OTHER CONDITIONS OF PROBATION

IT IS FURTHER ORDERED that the defendant pay a fine in the amount of __ plus $60 or

10%, whichever is less pursuant to 0.C.G.A. § 18-29-70, and pay restitution in the amount of __

Probation Fee. + Court Cost__Ss—s- Attorney’sFees_ = - Crime Lab Fee ___

Payments are:

IT IS THE FURTHER ORDER of the Court, and the defendant is hereby advised that the Court

may, at any time, revoke any conditions of the probation and/or discharge the defendant from

probation. The probationer shall be subject to arrest for violation of any condition of probation

herein granted. If such probation is revoked, the Court may order the execution of the sentence

which was originally imposed or any portion thereof in the manner provided by law after

deducting from the amount of the time the defendant has served on probation.

The defendant was represented by the Honorable William Wright Attorney at Law,

MUSCOGEE County by [Employment] [Appointment]

By the Court /s/ .

So ordered this 30 Day of January, 2006 /s/ William J. Smith

Judge Superior Court

Certificate of Service - This is to certify and acknowledge that a true and correct copy of the

Final Disposition has been delivered in person and the defendant has been duly instructed

regarding the conditions set forth.

This Day of : oan

gi, “ddy