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Torres v. State

Supreme Court of Georgia

April 20, 2015


Murder. Newton Superior Court. Before Judge Johnson.

Long D. Vo, for appellant.

Layla H. Zon, District Attorney, Christopher D. Sperry, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.

HINES, Presiding Justice. All the Justices concur.


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Hines, Presiding Justice.

Following the denial of his motion for new trial, as amended, Abel Torres appeals his convictions of malice murder, aggravated assault, false imprisonment, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Fernando Gonzalez, and the assaults with a handgun and unlawful detentions of Hector Manuel Romero-Aguirre and Luis Ernesto Garcia-Cantun. [297 Ga. 33] Torres's sole challenge is that his trial counsel provided ineffective assistance by not pursuing a mental health defense. For the reasons that follow, the challenge is without merit, and we affirm.[1]

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The evidence construed in favor of the verdicts showed the following. On April 26, 2008, Gonzalez was sharing his Newton County home with Torres, Romero-Aguirre, and Garcia-Cantun. Gonzalez, Romero-Aguirre, and Garcia-Cantun had bedrooms on the first floor, and Torres's bedroom was on the second floor. Torres was staying at the house rent free. Torres always carried a chrome revolver tucked into his belt and kept a box of ammunition in his bedroom. None of the other men used handguns, and Torres's revolver was the only weapon in the house.

Gonzalez was known to always carry $500-$600 in his wallet. A couple of days before April 26, 2008, Torres asked Gonzalez for money because Torres wanted to return to his family and he was not working and had no money of his own. Gonzalez told Torres that he did not have any money to give him.

All four men were home on April 26, 2008, and around midnight very loud music was heard playing from a home theater in the living room; this was followed by a series of gunshots. Romero-Aguirre saw Torres leaving Gonzalez's bedroom; Torres had a pistol in his hand. Torres told Romero-Aguirre and Garcia-Cantun that they " shouldn't run," and at gunpoint ordered them to sit down on the couch in the [297 Ga. 34] living room. Romero-Aguirre asked Torres about Gonzalez, and Torres " coldly" responded that Gonzalez was dead because he had lied to him. Torres told the two men that they were going to go with him, and then ordered them to get into a truck in the garage. When Torres then went to the front of the house to shut the door, Romero-Aguirre and Garcia-Cantun escaped in the truck; however, they got lost in the subdivision and drove past the house again. Torres was in the front yard as they passed by and pointed the handgun at them. The two men drove to the interstate to try and find a police officer. They found an officer, reported the shooting, and gave the officer a black bag belonging to Torres that they found in the truck. The men were transported back to Newton County, where they directed officers to Gonzalez's home. Gonzalez's body was found on the floor of the master bedroom; there was a large amount of blood, and it appeared that Gonzalez had been shot in the head and shoulder. Next to the body were four spent shell casings and one live unfired round. There was also a " wadded up" five-dollar bill, some change, and a wallet strewn around the room. Gonzalez had sustained five gunshot wounds, to his head, arm, and back; the cause of death was two gunshot wounds to the head.

In the early morning hours after the shooting, Torres was picked up by a taxi cab driver and the driver's girlfriend, and Torres asked to be taken to the bus station in Atlanta. Torres agreed to pay the $65 fare, and on the way to the bus station, he asked the couple to stop at a store and get him a bottle of water and a pre-paid mobile phone card. During the drive, Torres instructed the couple not to turn around and look at him. Torres asked the girlfriend if he would be asked for identification in order to purchase the bus ticket. Once at the bus station, Torres requested that the driver buy him a bus ticket, explaining that he did not have any identification. Torres gave the driver money to purchase for him a ticket to California, which the driver did. The bus ticket cost about $300. Torres also paid for the cab ride and gave the driver a $260 tip. After law enforcement officials determined that Torres was on a particular bus, Torres was detained at the bus's layover in Birmingham, Alabama. Blood was found on the

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pants Torres was wearing when he was apprehended, and a subsequent DNA examination of the blood revealed that it ...

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