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Carcamo v. State

Court of Appeals of Georgia, First Division

January 14, 2019

CARCAMO
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          BARNES, PRESIDING JUDGE.

         Following a trial with a co-defendant, the jury found Andy Fabricio Carcamo Maradiaga guilty of rape and kidnapping. Carcamo[1] appeals from his conviction and sentence, as well as the denial of his motion for new trial, arguing that the trial court erred in denying his motion to sever his trial from that of his co-defendant and that his trial counsel rendered ineffective assistance. For the reasons discussed more fully below, we affirm.

         After a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer presumed innocent. Person v. State, 340 Ga.App. 252, 252-253 (797 S.E.2d 172) (2017). So viewed, the evidence showed that on the night of November 29, 2014, the victim and her twin sister were celebrating their twenty-first birthdays with friends in the downtown area of Savannah, Georgia. The celebration lasted into the early morning hours of November 30, 2014, and the victim became heavily intoxicated. Around 2:18 a.m., the victim and one of her friends were escorted out of a club after an employee discovered them sitting on a back stairwell that was not open to patrons. According to the employee, the victim and her friend were noticeably intoxicated, and he "had to hold them up while bringing them out" of the club. Once outside the club, the victim remained near the front door because she was unable to stand on her own and kept falling down. While outside, the victim became separated from her friend.

         Carcamo and his friend (co-defendant Eric Fernando Reyes Castro)[2] were at the same club that night. Carcamo was standing near the front door of the club when he saw the victim repeatedly fall to the ground after the employee escorted her outside. Carcamo and Reyes approached the victim, supported her on her feet, and "were trying to take her" when a club employee who believed the situation was a "little sketchy" began questioning them. Carcamo and Reyes assured the employee that the victim "was their good friend and they would take care of her," and the employee let them go. Carcamo and Reyes placed the victim's arms over their shoulders and supported her weight between them as they walked with her away from the club while her head hung toward the ground.

         After walking away from the club, Carcamo lifted up the victim and carried her down the street as Reyes followed behind them while talking on his cell phone. When they reached the parking lot where Reyes's car was parked, Reyes unlocked his vehicle and opened the door, and Carcamo placed the victim on the backseat, where he had sexual intercourse with her while she was unconscious. Reyes stayed on his cell phone and got in and out of the front seat of the car.

         A military serviceman who was walking in the area saw Carcamo carrying the unconscious victim down the street followed by Reyes on his cell phone. According to the serviceman, Carcamo kept looking back at Reyes and nodding for him to hurry up. Because something "did not seem right," the serviceman followed them until they arrived at Reyes's car. The serviceman could not see what then occurred in the backseat because the windows were fogged from the inside, but he saw Reyes on his phone getting in and out of the car.

         The serviceman left the scene and located two police officers about a half a block away from the parking lot, and he told them what he had observed. The two officers immediately proceeded to the parking lot on foot and were joined by another officer and a detective who were already in the area. The officers and detective approached the parked car and saw Reyes in the front seat and Carcamo in the backseat having sexual intercourse with the unconscious victim. Reyes got out of the car and claimed not to know Carcamo or the victim. Carcamo pulled up his pants and got out of the car, but the victim remained motionless in the backseat with her genitals exposed. According to one officer, the victim "appeared lifeless, was not moving, and at that point I couldn't even tell if she was breathing or not." The detective described the victim as "exposed, unconscious, [and] not moving" and testified that he "didn't know if she was . . . dead or alive at that point." After several minutes, the detective was able to get the victim to sit up, but she vomited several times, drifted in and out of consciousness, spoke incoherently, and could not stand up. The detective used the victim's cell phone to call her sister, and the victim's sister and friends then came to the scene and told the detective that they did not know Carcamo and Reyes and did not know why the victim would have been with them.

         Carcamo and Reyes were detained and taken to police headquarters, while the victim was transported by ambulance to the hospital. The detective went to the hospital and interviewed the victim, who was still heavily intoxicated at that point and did not remember what had happened. The interview was audio-recorded and was later played for the jury, and the victim testified at trial that she did not know Carcamo and Reyes and had no memory of what had occurred with them that night.

         A nurse at the hospital performed a sexual assault examination on the victim and noted that she was heavily intoxicated, was in and out of consciousness, was disoriented, and had vomit in her hair, a red mark on her shoulder, bruising on her knee, and dirt on her leg. The nurse took vaginal and other swabs from the victim as well as blood and urine samples. A blood toxicology test showed that the victim had a blood alcohol level of .197 grams per 100 milliliters, which, according to a forensic toxicology expert who testified at trial, would have been between .242 and .272 grams per 100 milliliters approximately three hours before the victim's blood was drawn. The toxicologist opined that at that blood alcohol level, the average social drinker would experience mental confusion, double or blurred vision, heavily slurred speech, and lack of muscle coordination.

         After interviewing the victim at the hospital, the detective went to police headquarters, where Reyes agreed to an interview. Reyes told the detective that he and Carcamo were friends but had arrived separately at the club; that Carcamo introduced the victim as his girlfriend; that Carcamo asked him for a ride home; and that he had agreed to provide Carcamo a ride. Reyes said that he did not know the victim's name, and at one point during the interview, according to the detective, Reyes "shook his head and mentioned something about being stupid or doing something stupid, something to that effect." Although Reyes initially claimed that all three of them had walked to the car, Reyes later admitted that the victim had not walked. Reyes also said that when they were in the car, he had been talking to his girlfriend and texting on his cell phone, and he had heard Carcamo and the victim talking and having sex in the backseat.

         The detective seized Reyes's cell phone, and a digital forensic examination of the phone was conducted after a search warrant was obtained. During the approximate time period when the victim was inside Reyes's car, Reyes's phone contained incoming and outgoing calls to a "Carlos Gomez," as well as a text message written in Spanish to "Carlos" using the WhatsApp Chat application. The text message, when translated into English by an expert translator at trial, read: "Carlos, a drunken broad landed here. Bring the sweater and we're going to mount her." The translator testified that "sweater" in this context could be slang for "condom."

         Reyes agreed to a second interview with the detective, who confronted him with the text message. Reyes admitted that one of the Spanish phrases in the text message referred to "a girl who was really drunk" and that another phrase meant "to fuck." Reyes initially denied that he had planned to have sex with the victim, but then admitted, when the detective confronted him with the specific wording of the text message, that he and Carcamo "were going to have sex with the girl."

         The detective obtained a search warrant for swabs from Carcamo for the purpose of a DNA comparison. When the detective was collecting the swabs, Carcamo made the unprompted statement, "I'm sorry for last night." Subsequent DNA testing showed Carcamo's DNA present on swabs taken from the victim's vagina and the victim's DNA on swabs taken from Carcamo's penis, and the DNA results were introduced at trial through the forensic biologist who performed the testing at the crime lab.

         As part of his investigation, the detective also obtained video camera footage from several locations in the downtown Savannah area, including footage from the club, a nearby restaurant, and the city's street cameras. The detective compiled a single video of the relevant time periods from the video camera footage, which was introduced as an exhibit at trial by stipulation of the parties and played for the jury.[3]Among other things, the video footage showed Carcamo and Reyes walking away from the club with the victim between them with her arms over their shoulders as her head hung toward the ground, and Carcamo then carrying the motionless victim down the street as Reyes followed him.

         Carcamo and Reyes were indicted on charges of rape and kidnapping. Carcamo filed a motion to sever his trial from that of Reyes, and the trial court denied the motion. At the ensuing joint trial, after the State presented its case-in-chief, Reyes elected not to testify. Carcamo took the stand and testified that he and Reyes had come to the club in Reyes's car and that they had been at the club with another friend named Carlos Gomez. Carcamo testified that he approached the victim after she fell outside the club and her friend left, and he admitted that the victim had been drunk, that she had trouble walking, that he had picked up the victim and carried her, that he put her in the car, and that he had sex with her. However, Carcamo claimed that the victim was "[d]runk, but not unconscious," that he had initiated the sexual encounter after they briefly talked in the backseat of the car, and that he did not force the victim to have sex with him. Carcamo testified that the reason he told the detective he was "sorry for last night" was because he was afraid that the victim was a minor.

         The jury found Carcamo guilty of the charged offenses.[4] The trial court conducted a sentencing hearing, and on the rape count, the court sentenced Carcamo to 25 years in prison without the possibility of parole, followed by life on probation. On the kidnapping count, the trial court sentenced Carcamo to 15 years in prison without the possibility of parole, consecutive to the rape count. Carcamo filed a motion for new trial, as amended, in which he contended, among other things, that his trial counsel had rendered ineffective assistance. Following a hearing on the motion for new trial in which Carcamo's trial counsel testified, the trial court denied the motion, resulting in the present appeal.

         1. Carcamo contends that the trial court erred by failing to sever his trial from that of Reyes.

         "When two or more defendants are jointly indicted . . . for a felony less than capital, . . . such defendants may be tried jointly or separately in the discretion of the trial court." OCGA § 17-8-4 (a). "Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion." Baker v. State, 238 Ga. 389, 391 (2) (233 S.E.2d 347) (1977).

It is incumbent upon the defendant who seeks a severance to show clearly that the defendant will be prejudiced by a joint trial, and in the absence of such a showing, the trial court's denial of a severance motion will not be disturbed. Factors to be considered by the trial court are: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses. The burden is on the defendant requesting the severance to do more than raise the ...

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