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Vasquez v. State

Supreme Court of Georgia

June 24, 2019


          BETHEL, JUSTICE.

         Christian Vasquez appeals from the denial of his motion for new trial after a jury found him guilty of malice murder, two counts of felony murder, aggravated assault, two counts of cruelty to children in the first degree, and concealing the death of another in connection with the death of his two-year old daughter, Prisi Vasquez.[1] He argues that the State failed to present sufficient evidence to support his conviction for cruelty to children in the first degree predicated on his failure to seek timely medical care for the victim. He also argues that there was insufficient evidence to support his conviction for concealing the death of another because the State did not prove that the applicable statute of limitation was tolled. Vasquez also argues that the trial court committed plain error by giving erroneous jury instructions regarding the statute of limitation applicable to the offense of concealing the death of another and the manner in which the statute of limitation could be tolled. He further argues that the trial court committed plain error when it failed to instruct the jury regarding corroboration of accomplice testimony. Additionally, Vasquez argues that he received ineffective assistance from his trial counsel based on his counsel's failure to object to the admission of evidence regarding prior acts of child abuse committed by Vasquez and because his counsel did not object to the trial court's instruction regarding the statute of limitation for concealing the death of another. Finally, Vasquez argues that his convictions for cruelty to children in the first degree should have merged with his conviction for malice murder. Finding no reversible error, we affirm.

         1. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial shows as follows. In February 2007, Christian Vasquez and Amy Ruiz were married[2] and lived in a rented house in Gwinnett County with their two-year-old daughter, Prisi, and Ruiz's three-year-old son, J.E. In October 2006, Prisi and J.E. had been removed from the custody of Vasquez and Ruiz and placed in the custody of Ruiz's father pursuant to a juvenile court order following allegations that Vasquez and Ruiz abused J.E.[3]Ruiz's father had facilitated opportunities for Ruiz to be with the children, including allowing Vasquez, Ruiz, and the children to live with him before they began renting the house in Gwinnett County. The children were still in the legal custody of Ruiz's father in February 2007.

         Ruiz left their home at 7:30 a.m. on the morning of February 3 to babysit the daughter of her sister, Erica Arroyo.[4] Vasquez stayed home with J.E. and Prisi. Ruiz testified that Prisi was "completely okay" and in good health when Ruiz left home that morning.

         At 9:36 a.m., Vasquez called Ruiz at Arroyo's house and asked her to come home because Prisi was sick.[5] Ruiz told Arroyo, "I've got to go," and took Arroyo's daughter with her. Ruiz did not return to her house immediately, and she would later testify that Vasquez called her several times that morning.[6] Ruiz ran several errands before returning home between 5:00 p.m. and 6:30 p.m. that evening.[7]

         When Ruiz arrived home, Prisi was laying on the couch next to Vasquez and J.E. Vasquez was telling Prisi to wake up, but she did not respond. Ruiz went over to try to talk to Prisi and observed that she could make noises with her mouth but was unable to form words, did not respond to Ruiz, and did not move. Prisi then stopped breathing.

         Ruiz asked Vasquez, "What did [you] do to my daughter?" Vasquez told her to "shut up" and that "he needed time." Vasquez took Ruiz's keys and phone and then took Prisi away from Ruiz and went into the bedroom, barring Ruiz from coming into the room. He then stuffed Prisi's unclothed body into a trash bag and hid her in the attic through an entrance in the bedroom closet. Around 11:00 p.m. that night, Ruiz called Arroyo and left a voicemail in which she said, "Call me back. Something happened. Call me back." Arroyo called Ruiz back later that night, but Ruiz did not answer.

         The next morning, Sunday, February 4, Arroyo again called Ruiz. This time, Ruiz answered and asked for $100 in cash from Arroyo. Ruiz told Arroyo she needed the money to pay her electric bill, but she would later testify that she sought the money so that Vasquez could flee. Arroyo gave Ruiz the money she requested. That day, Ruiz also obtained a check from Vasquez's employer (Ruiz's uncle) for $110 and cashed it. Ruiz testified that Vasquez threatened to kill J.E. if she did not get money for him. Vasquez used the money to purchase bus tickets to Mexico. Ruiz, Vasquez, and J.E. then took a bus to Mexico that day.

         Ruiz did not inform Arroyo or any other members of her family that she and Vasquez were leaving, and her family became concerned when they were unable to contact her. Arroyo and other members of Ruiz's family went to her house on Tuesday, February 6. Upon entering the house, they observed food on the table, Prisi's car seat sitting in the living room, clothing strewn about the house, and a series of black bags left out in the house, which they found unusual because Ruiz normally kept a clean house. They also noticed an article of Prisi's clothing with a wet stain on it. Ruiz's family filed a missing person report that day concerning Vasquez, Ruiz, and the children, and Gwinnett County police responded to the home to investigate. Police entered the home, interviewed Ruiz's family members who were present, and took photographs of the home's living area and bedrooms. They also noticed a bottle of hydrogen peroxide and a bottle of children's Tylenol on the living room coffee table and an open bottle of rubbing alcohol in one of the bedrooms. A detective would later testify that it appeared someone had left the house "in a hurry." At that time, the police were not aware there was an access point to the attic in the home, and the police never attempted to enter the attic. Prisi's body was not discovered by the police that day.

         On February 5, 2007, the owner of the home came to collect rent. No one answered the door at the house. Two weeks later, having had no correspondence with Ruiz after trying to contact her, he went inside the house. He noticed that numerous items of clothing, furniture, and other personal belongings were in the house. At the end of February 2007, still having had no contact with Ruiz, the landlord cleaned out the house and rented it to new tenants. During this process, he did not go into the attic.

         The new tenants later moved out, and the landlord decided to move into the house himself while making some upgrades and repairs. While living there, he noticed a foul odor in the house that he could not remove. He hired someone to help him with the smell, and that person thought the smell might be coming from a dead rodent. He also noticed a small stain on the ceiling between the living room and the kitchen.

         In June 2007, Ruiz called Arroyo. She told Arroyo that she was in Mexico with Vasquez, J.E., and Prisi. Ruiz told Arroyo that she had cancer and that she had gone to Mexico for treatment. Arroyo questioned this, but offered to send a box of Prisi's clothes to Ruiz. Ruiz declined the offer, telling Arroyo that Vasquez's mother bought Prisi "anything she wants." Ruiz told Arroyo that the kids were doing well, that they were at the beach, and that everyone was having a great time.

         Arroyo also spoke to Ruiz by telephone in July 2007. During that call, Ruiz told Arroyo that she needed a passport and that she planned to leave Prisi in Mexico and return to the United States with J.E. Ruiz explained that she was not bringing Prisi because she would not listen to Ruiz.

         Some time in mid-2008, Ruiz admitted to her father during a phone call that Prisi was dead and that her body was hidden in the attic of the Gwinnett County house.[8] On June 20, 2008, her father and Arroyo went to the Gwinnett County police department to report what Ruiz had told him to a detective. Arroyo told the detective about her contact with Ruiz the day Prisi was killed, her efforts to contact Ruiz the following week, and the call she had with Ruiz in the summer of 2007.

         After this discussion, the detective went to the house and spoke with the landlord, informing him that he had reason to believe a homicide had occurred in the house. The landlord allowed the detective to enter the house, and, upon entering, the detective immediately recognized the smell of decaying flesh. Upon a search of the attic, the detective found Prisi's remains. Her body had been wrapped in four black garbage bags, hidden behind a joist in the attic, and covered by insulation. The detective contacted employees from the Gwinnett County Medical Examiner's Office, who came to the house. The detective and personnel from the medical examiner's office removed the body from the attic.

         That day, Prisi's body was transported to the medical examiner's office for autopsy. The medical examiner established that the body was that of a young child between two and three years old. In addition to noting that the body was partially skeletonized and markedly decomposed, the medical examiner determined that the skull was fractured. The fracture, to the back left side of the skull, was a radiating fracture caused by a blunt impact. The fracture also included a displaced piece of bone, which the examiner determined would take "a significant force to break." The medical examiner testified that skull trauma could result from a household accident but that the characteristics of the fracture as well as the fact that the body was concealed in plastic bags and hidden in the attic argued against a finding of accidental death. The examiner determined that the impact likely resulted in injury to the brain and trauma to the spinal cord and brain stem. The medical examiner testified that these injuries could be consistent with non-responsiveness in the extremities and an inability to respond when called by name. The medical examiner determined that the cause of death was blunt-force head trauma and that the manner of death was homicide.

         On June 20, 2008, after the detective found Prisi's remains in the attic of the house, Ruiz's father called Ruiz. The call was recorded by law enforcement, and, in that call, Ruiz stated again that Prisi had been left in the attic on February 3, 2007. Ruiz told her father that she wanted to call 911 when she discovered that Prisi was injured but that "[t]hey weren't going to believe me. They were going to put me in jail. And they were going to take [J.E.] away from me. And also, I was going to get you guys into worse problems, and I didn't want my siblings to suffer."

         On June 23, 2008, the detective spoke to Ruiz by phone. In that call, Ruiz stated that Vasquez had wrapped Prisi's body in garbage bags and placed her in the attic. She also indicated that she was in Mexico with J.E., but not Vasquez. Ruiz told the detective that she and Vasquez had borrowed money from her sister and taken a bus to Mexico. Following the call, the detective took out charges against Vasquez and Ruiz for the death of Prisi. The detective was not aware of Vasquez's whereabouts at that time. On June 25, 2008, Ruiz's father contacted the detective to report that Ruiz had relayed to him that J.E. had told her that Vasquez hit Prisi in the head with a tube.

         In the summer of 2008, Arroyo traveled to Mexico so that she could bring J.E. back to the United States. Arroyo did not speak with Ruiz while she was in Mexico, and she picked up J.E. from other family members. J.E. returned to Gwinnett County with Arroyo and lived with her following a placement by the Gwinnett County Division of Family and Children Services (DFCS). On three occasions, J.E. told Arroyo that "he hit her-he hit her in the head" with "a tube." Arroyo described J.E. as being "upset" when he told her this and that he told Arroyo that he was "scared and really afraid." Arroyo testified that J.E. also acted scared around male members of her family. Arroyo began taking J.E. to therapy after these outbursts.

         On August 29, 2008, J.E. underwent psychological testing requested by Gwinnett County DFCS. The psychologist administered a "children perception test," in which photographs are shown to the subject and the subject is prompted to express feelings and thoughts about what is shown in the photos. The psychologist testified that such photos might include, for example, a "typical family scene," a child riding a bike down a street, or an adult reading a book to a child. In that interview, J.E. responded spontaneously to one photograph by saying "this is the daughter, these are her parents, and the man kill [sic] the daughter with a pipe." As to a different photograph, J.E. stated, "He kill [sic] her, she's dead." The psychologist who performed the interview testified that J.E. became "super stressed and anxious" as he gave these responses and that these manifestations were triggered by every photograph which showed a male figure. J.E. then began pacing around the interview room, curled into a fetal position on the floor, and asked to stop. The psychologist was unable to finish the interview. The psychologist testified at trial that there was no evidence J.E. had been coached.

         J.E. was also treated by a therapist eight to ten times between February and August 2009. Arroyo told the therapist that J.E. had witnessed the murder of his little sister. As part of the therapy, the therapist introduced J.E. to a playhouse that had figurines of a generic father, mother, and three children. During one session, J.E. was playing with the figurines and knocked the father figure off the roof of the playhouse. While playing, he told the therapist that "his daddy had hurt his little sister." In another instance, J.E. described himself and his sister as "crying and screaming." He then said that his sister's crying and screaming "suddenly stopped."

         Ruiz returned to the United States on September 9, 2009. She turned herself in to law enforcement at the Texas-Mexico border on charges relating to Prisi's death. She was transferred to Gwinnett County on October 5, 2009, where she was booked in to jail. While there, she executed an affidavit in support of Vasquez's extradition from Mexico. The parties stipulated that Vasquez was extradited from Mexico and booked into jail in Gwinnett County on January 17, 2013.

         (a) Sufficiency of Evidence as to Child Cruelty Count.

         Vasquez contends that the evidence presented by the State was insufficient to support his conviction for child cruelty in the first degree predicated on his failure to seek timely medical care for Prisi. We disagree.

         OCGA § 16-5-70 (b) provides that a "person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." In this case, Count 6 of the indictment alleged that Vasquez committed this offense by failing to seek medical care for Prisi in a timely manner despite her being in obvious need of such aid.

         As we have previously discussed,

For purposes of this Code section, malice in the legal sense[] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and [willful] doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Citations and punctuation omitted.) Brewton v. State, 266 Ga. 160, 161 (2) (465 S.E.2d 668) (1996). We have further noted that "[m]alice, as an element of the crime of cruelty to children, can be shown by intentionally and unjustifiably delaying necessary medical attention for a child, as that delay may cause the child to suffer from cruel and excessive physical pain." Delacruz v. State, 280 Ga. 392, 396 (3) (627 S.E.2d 579) (2006). With regard to the crime of cruelty to children, "criminal intent may be inferred from conduct before, during and after the commission of the crime." Johnson v. State, 269 Ga. 632, 634 (501 S.E.2d 815) (1998).

         Here, the State presented evidence that Prisi was two years old at the time of this incident. The testimony established that Vasquez hit Prisi over the head with a "tube." This blow caused a fracture to Prisi's skull, ultimately resulting in her death. Ruiz testified that Vasquez then told her over a phone call that Prisi was "sick." When Ruiz returned to the couple's home, she found Prisi alive but unresponsive, and Prisi later stopped breathing. Instead of seeking medical care or reporting Prisi's injury to any authority, Vasquez moved Prisi to the bedroom, placed her body in the attic, pressured Ruiz to obtain money for bus tickets, ...

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