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Reyes-Castro v. State

Court of Appeals of Georgia, Second Division

September 25, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          REESE, JUDGE.

         Following a joint trial, a jury found Castro Eric Reyes, a/k/a Eric Fernando Reyes-Castro (hereinafter, "Reyes"), and Andy Carcamo Maradiaga ("Carcamo") guilty of the kidnapping and rape of an unconscious 21-year-old woman ("the victim").[1] On appeal from the denial of his motion for new trial, Reyes contends that he received ineffective assistance of counsel. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the evidence showed that, in November 2014, Reyes and Carcamo jointly kidnapped the extremely intoxicated and unconscious victim, whom they did not know, from a Savannah nightclub and that Carcamo raped her in the back seat of Reyes's car while Reyes sat in the driver's seat. While Carcamo was raping the victim, Reyes texted a friend, stating that he was planning to rape the victim, also, and inviting the recipient of the text to join him and Carcamo. However, police officers (who had been alerted after a bystander saw the men carrying the unconscious victim to the car) arrived at the scene while Carcamo was still raping the victim. Carcamo and Reyes were arrested and charged with kidnapping and raping the victim. Following their convictions on the charges and the denial of their motions for new trial, both men appealed to this Court.

         On January 14, 2019, this Court issued an opinion in the appeal filed by Carcamo, affirming the denial of his motion for new trial.[3] The opinion recited the following facts, which provide specific, material details of the crimes and were supported by evidence presented during Reyes's and Carcamo's joint trial.[4]

[O]n 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[, Reyes, ] 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 back seat, 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 back seat 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 the detective approached the parked car and saw Reyes in the front seat and Carcamo in the back seat 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 back seat 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 0.197 grams per 100 milliliters, which, according to a forensic toxicology expert who testified at trial, would have been between 0.242 and 0.272 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 back seat.
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 [another] 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."
. . .
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. 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 [jointly] indicted on charges of rape[5] and kidnapping. . . . 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 back seat of the car, and that he did not force the victim to have sex with him.[6]

         After the jury found Reyes and Carcamo guilty of rape[7] and kidnapping, Reyes filed a motion for new trial, asserting that he received ineffective assistance of counsel in several respects. The trial court conducted a hearing, then denied the motion. In its order, the trial court found no merit to many of Reyes's claims that his trial counsel's performance was deficient. The court also found that, regardless whether any of the alleged performance issues had merit, given the overwhelming evidence of Reyes's guilt, Reyes had failed to meet his burden of showing that, but for such deficient performance, there was a reasonable probability that the outcome of the trial would have been different.

         On appeal from the trial court's order, Reyes contends that the trial court erred in rejecting his claims of ineffective assistance of counsel. We disagree.

In order to establish ineffectiveness of trial counsel, [the] appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo.[8]

         With these guiding principles in mind, we turn now to Reyes's specific claims of error.

         1. Reyes contends that his trial counsel "[f]ailed to litigate properly the motion to suppress [the contents of his cell phone] by not raising all reasonable arguments for exclusion of the evidence." Specifically, Reyes argues that his counsel was deficient for failing to argue that the contents of the cell phone had to be suppressed because (a) the detective's seizure of Reyes's cell phone prior to Reyes's arrest was illegal; and (b) the search warrant obtained by the detective was "impermissibly overbroad[.]"

         The record shows that the detective first interviewed Reyes at 6:14 a.m. on November 30, 2014, a few hours after the detective and the other officers had appeared at Reyes's car and interrupted Carcamo's rape of the victim. According to the detective, Reyes was "sober and coherent[ ]" at the time he was transported to police headquarters, where the interview was conducted. During the interview, Reyes admitted, inter alia, that he had been sitting in the front seat of his car, texting messages and talking to his girlfriend on his cell phone, while Carcamo was having sex with the victim in the back seat. Based on that information, the detective believed that the text messages Reyes sent during the rape might contain evidence critical to the investigation of the rape, such as establishing a timeline for the night's events. Further, given his extensive experience as a sexual assault investigator, the detective believed that Reyes might have video recorded or photographed the rape. Thus, although Reyes was not placed under arrest following the first interview, the detective seized Reyes's cell phone and obtained a search warrant for the contents of the phone.

         The detective's search warrant affidavit provided a comprehensive statement of facts the detective had gleaned from his investigation between the date of the rape, November 30, and the date he obtained the search warrant, December 2. The affidavit also stated that "[t]he affiant believes that the requested search of [Reyes's] cell phone will reveal evidence critical to this investigation. In addition, the call and text content on the phone will assist in establishing a timeline for the incident." Based on the detective's affidavit, the judge of the recorder's court issued the search warrant, which authorized a search of Reyes's cell phone for "[a]ny and all content [of the phone]; [a]ny and all digital content; [a]ny and all data, to include deleted or recoverable data; [a]ny and all text message content; [c]all logs; [a]ny and all media content, to include videos and photographs, which are being possessed in violation of Georgia Law(s): OCGA § 16-6-1 Rape[.]"

         On December 9, the detective took Reyes's cell phone to Armstrong Atlantic State University's Cyber Forensics Division ("AASU"), which conducted a "digital forensics download[ ]" of the phone's content, including all texts, call logs, photographs, and video recordings. According to an AASU analyst, once she downloaded the phone's content into a file, "[t]he information that [she] looked at for [the detective] was [limited to] the events of November 29th into the early morning hours of November 30th." The analyst testified that she "bookmarked [items] as being possibly important [to] the investigation[.] . . . [She] chose the items that fell in the timeline of the alleged [crime] for the [detective] to then take to a translator."[9]

         On December 17, the detective picked up Reyes's cell phone and the file containing the downloaded digital content obtained by AASU. After reviewing the data marked by the AASU analyst, the detective obtained an arrest warrant for Reyes for being a party to the crime of rape, and Reyes was arrested on December 19, 2014. Once Reyes was in custody, the detective interviewed him again and confronted him with the text message that stated (after being translated to English): "Carlos, a drunken broad landed here. Bring the sweater and we're going to mount her."[10] Forty-seven seconds after Reyes sent the text, he received a single-word response, "Donde?" or, in English, "Where?" After being confronted with the messages, Reyes admitted that he had intended to have sex with the victim on the night of the rape. It is undisputed that Reyes's text message, and the brief response, were the only messages from Reyes's cell phone that the State presented as evidence of the crimes charged at trial.[11]

         (a) Reyes argues that, when the detective seized Reyes's cell phone prior to arresting him, the detective had no basis to believe that the phone contained evidence regarding the rape. He contends that, instead, the detective seized the phone in the mere hope of finding evidence that would provide probable cause to arrest Reyes, and argues that such hope was comparable to a "hunch[ ]" that would be insufficient to permit the seizure and search of the phone. Thus, Reyes contends that his counsel's representation was deficient for failing to challenge the allegedly illegal seizure of the cell phone in the trial court.

         Pretermitting whether Reyes's trial counsel failed to raise and argue this issue in the trial court, [12] the mere failure to present an argument in a motion to suppress does not constitute per se ineffective assistance of counsel.[13] Instead, the appellant bears the burden of making a strong showing that, if his counsel had presented the argument, the trial court would have suppressed the evidence.[14]

         It is axiomatic that, in ordinary cases, "seizures of personal property are unreasonable within the meaning of the Fourth Amendment, without more, unless accomplished pursuant to a judicial warrant, issued by a neutral magistrate after finding probable cause."[15] However,

[w]here law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a [search] warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.[16]

         "Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases[.]"[17] According to the Supreme Court of the United States, "[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, . . . certain general, or individual, circumstances may render a warrantless search or seizure reasonable."[18]

         In Riley v. California, [19] the Supreme Court addressed such "special law enforcement needs"[20] when considering whether police officers were authorized to conduct a warrantless seizure and search of a person's cell phone incident to his or her arrest absent the presence of another exception to the warrant requirement. The Court concluded that, in such circumstances, a warrant was required before the phone could be searched.[21] However, in addressing the government's concerns that, under such rule, an arrestee might delete incriminating data from the phone while the officer is obtaining the warrant, the Court acknowledged that the officer who arrested the person "could have seized and secured [the arrestee's] cell phone[ ] to prevent destruction of evidence while seeking a warrant. . . . And once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone."[22]

         In so ruling, [23] the Supreme Court cited to Illinois v. McArthur, [24] which considered four principles in balancing an individual's privacy-related concerns with law enforcement-related concerns to determine if a police officer's seizure of a person's property until a search warrant could be obtained was reasonable when that person was not under arrest.[25] And, applying those principles in the instant case, we hold that the record supports the following conclusions. First, given Reyes's statements during the first interview regarding his use of the cell phone during the rape, as well as the detective's experience in investigating sexual assaults of this nature, the detective had "probable cause to believe that [Reyes's cell phone] contained evidence of a crime[.]"[26] Second, the detective had a reasonable basis to be concerned that, unless he seized the phone during the first interview with Reyes, Reyes would be able to destroy any incriminating data on his phone – or the phone itself – before the detective could obtain a search warrant.[27] Third, the detective "made reasonable efforts to reconcile [his] law enforcement needs with the demands of [Reyes's] personal privacy[, i.e., the detective] neither searched the [phone] nor arrested [Reyes] before obtaining a warrant."[28] And, fourth, the detective seized the phone for a "time period [that] was no longer than reasonably necessary for the [detective], acting with diligence, [29] to obtain the warrant[ ]"[30] and institute the search.[31]

         Thus, under the particular circumstances presented in this case and the law enforcement interests at stake, we conclude that the detective was authorized to seize Reyes's cell phone in order to prevent the destruction of evidence and to retain it until the detective could obtain a search warrant and have the search conducted.[32] It necessarily follows that Reyes's trial counsel was not deficient for failing to challenge the detective's seizure of the cell phone prior to Reyes's arrest.[33] Moreover, Reyes has failed to make a strong showing that, if his trial counsel had challenged the detective's seizure of Reyes's cell phone, the trial court would have suppressed the evidence obtained from the phone.[34]

         (b) Reyes also contends that the search warrant was "impermissibly overbroad[, ]" because it authorized a search of all of the phone's digital content, instead of strictly limiting the search to obtaining data from the date and time of the alleged rape. According to Reyes, because the search warrant authorized a "general exploratory search[ ]" or "forensic examination" of all of his phone's content, his constitutional right to privacy was violated, and the contents of the cell phone, and all evidence derived therefrom, should have been suppressed. Reyes argues, therefore, that his counsel's failure to raise this issue in the motion to suppress filed and argued in the trial court constituted ineffective assistance.[35] We disagree.

[W]here the basis for the issuance of a search warrant has been challenged, [the Supreme Court of Georgia] has stated that doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.[36]

         In this case, although the search warrant authorized the search of "[a]ny and all [of the phone's] content[, ]" the warrant also specifically stated that the issuing judge had concluded that there was probable cause[37] to believe that a crime had been committed based on the detective's affidavit's detailed summary of the crimes at issue and that evidence of such crimes was "presently located on the . . . property described above[, ]" i.e., Reyes's cell phone. In addition, the warrant stated that the digital content to be acquired from the phone was related to a "violation of Georgia Law(s): OCGA § 16-6-1 Rape[.]"

[A]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved. Specifically, the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty.[38]

         Here, given the warrant's reference to the specific crime at issue and to the specific dates on which the crime was allegedly committed, as shown in the affidavit, we conclude that the warrant was sufficiently particular to notify the detective, the analyst, and/or any other executing officer of what evidence he or she was authorized to obtain from Reyes's phone and to prevent a general exploratory search of the other downloaded content for evidence of unrelated crimes or other unauthorized purposes.[39] And, as the Supreme Court of Georgia has ruled,

[w]e do not believe that it was the intention of the Supreme Court of the United States to lay down a rule that the searching and seizing officer be left no room to make a judgment as to what particular documents or things are subject to seizure under the warrant which he is executing. It is difficult to imagine that a case could arise where an officer executing a valid search warrant would not at some stage in the matter be required in the very nature of things to exercise his judgment as to what thing or things or person or persons were to be seized under the warrant. We conclude that[, ] so long as the determination which he ...

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