FINAL COPY
295 Ga. 380

                     S14A0043. RIVERA v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Orville Francisco Cotto Rivera a/k/a Anderson Jurkewicz was

convicted of malice murder, felony murder, and aggravated assault in

connection with the October 16, 2011 stabbing death of Neriton Souza Do

Amaral. Rivera appeals the denial of his amended motion for new trial,

asserting that the trial court erred in admitting evidence of two previous

incidents and trial counsel was ineffective. Finding no error, we affirm.1

      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. In the early morning hours of Sunday,

October 16, 2011, Rivera was at Los Bravos Restaurant, which was operating

      1
        On January 19, 2012, a Cobb County grand jury indicted Rivera for malice
murder, felony murder, and two counts of aggravated assault. During August 6-10,
2012, Rivera was tried before a jury. On August 10, 2012, the jury returned a verdict
of guilty on all counts except one count of aggravated assault. On the same day, the
court sentenced Rivera to life imprisonment for malice murder, with the remaining
counts merging or vacated as a matter of law. Rivera filed a motion for new trial on
August 13, 2012, which was amended on January 3, 2013. The trial court held a
hearing on Rivera’s motion for new trial on February 14, 2013, and denied the motion
in an order filed February 18, 2013. Rivera filed a notice of appeal on February 27,
2013. The appeal was docketed to the January 2014 term of this Court and orally
argued on January 7, 2014.
as a Brazilian dance club. When Rivera asked a woman to dance, Amaral

yanked her arm. Rivera moved the woman aside and threw a punch at Amaral;

a fight ensued with both men punching each other. Both men were intoxicated.

      A security officer escorted Amaral out the front door. A security officer

planned to escort Rivera out the back door but learned that Amaral was trying

to reenter the club through the back door. Therefore, a security officer took

Rivera out through the front door.

      Meanwhile, Amaral had made his way back to the front of the restaurant.

Amaral approached Rivera, and the fight continued. Friends of Amaral and

Rivera tried to break up the fight and keep the two men separated. At one point

when the men were separated, the fight appeared to be over. Rivera went to his

car and retrieved a knife. One of Amaral’s friends yelled, “He’s got a knife in

his hand. He’s going to kill him.” Rivera ran up to Amaral, and Amaral

punched him. Rivera stabbed Amaral three times very quickly. One of Amaral’s

friends pushed Rivera off of Amaral. As Rivera turned around and ran back to

his car, one of Amaral’s friends heard him say, “I stuck him.” Amaral started

to fall, and as his friends tried to lift him up, they noticed that he was wet and

there was blood on his shirt. Rivera got in his car, backed up, opened the door,

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yelled at one of Amaral’s friends that he would “get [him] too,” and then drove

away.

        Witnesses called the police, who later performed CPR on Amaral until an

ambulance arrived. Amaral showed no signs of life at the scene and was

pronounced dead later that morning. Based on witness statements, police

searched Rivera’s apartment and issued a BOLO for his car. The next day,

police stopped Rivera in Delaware for speeding and arrested him. Rivera

admitted to police that he stabbed Amaral and threw the knife out of his car

window.

        At trial, the Chief Medical Examiner for Cobb County testified that

Amaral suffered three stab wounds in his chest, two of which were lethal. The

examiner testified that Amaral died as a result of the stab wounds to his chest,

and he could not determine which wound Amaral received first.

        Also at trial, Rivera admitted to stabbing Amaral. Security camera footage

from the restaurant did not capture the fight outside. However, footage showed

Rivera going to his car and then running from his car. Rivera admitted at trial

that at this point he was running with the knife from his car towards Amaral.

        1. Though Rivera has not enumerated the general grounds, we find that the

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evidence as summarized above was sufficient to enable a rational trier of fact to

conclude beyond a reasonable doubt that Rivera was guilty of the crimes of

which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61

LE2d 560) (1979). Rivera relied on a justification defense, contending that he

was on the ground and acting in self-defense when he grabbed the knife from

his car. However, the evidence presented at trial included four eyewitnesses

who testified that Rivera walked to his car to retrieve a knife, and security

footage showing Rivera walking to his car and then running from his car toward

the fight with Amaral, rather than Rivera being on the ground or surrounded by

other people when he grabbed the knife from his car. See Vega v. State, 285 Ga.

32, 33 (1) (673 SE2d 223) (2009) (“‘It was for the jury to determine the

credibility of the witnesses and to resolve any conflicts or inconsistencies in the

evidence.’”) (citation omitted).

      2. Rivera argues that the trial court erred by admitting improper character

evidence involving previous independent acts committed by Rivera. Generally,

evidence of an independent offense committed by a defendant is inadmissible

and irrelevant in a trial for a different crime, unless the evidence is “substantially

relevant for some purpose other than to show a probability that the defendant

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committed the crime on trial because he has a criminal character.” Peoples v.

State, 295 Ga. 44, 53 (757 SE2d 646) (2014) (citation and punctuation

omitted).2

      First, Rivera contends that the court erred by admitting evidence that

Rivera had been previously banned from the restaurant and had talked the owner

into letting him stay at the establishment on October 16 before the fighting with

Amaral began. Even assuming arguendo that the trial court erred in admitting

evidence of this prior act, reversal is not required because any error was

harmless. “The test for determining nonconstitutional harmless error is whether

it is highly probable that the error did not contribute to the verdict.” Peoples,

295 Ga. at 55 (citation and punctuation omitted). In determining whether the

error was harmless, we review the record de novo and weigh the evidence as we

would expect reasonable jurors to have done so. Id. Here, it is highly probable

that any error in admitting the evidence about Rivera’s previous ejection from

the restaurant did not contribute to the jury’s verdict because of the

overwhelming evidence of Rivera’s guilt, including Rivera’s admissions both

      2
       Under the new Evidence Code, the admission of evidence of “other crimes,
wrongs, or acts” at trials conducted after January 1, 2013, is governed by OCGA §
24-4-404 (b).
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at trial and to detectives during initial questioning that he stabbed Amaral, and

the testimony of multiple eyewitnesses and security footage contradicting

Rivera’s self-defense claim. See Billings v. State, 293 Ga. 99 (3) (745 SE2d

583) (2013) (admission of evidence of prior shooting incident was harmless

where the evidence of the defendant’s guilt, including his admissions to the

police, was overwhelming).

      Second, Rivera asserts that the court erred by allowing evidence that

several months prior to the murder, Rivera was in an argument with another

man, approached the man, walked back to his car and retrieved a knife, and then

chased the man with the knife. “[P]roof of a distinct, independent, and separate

offense is admissible if there is some logical connection between the separate

offense and the crimes charged from which it can be said that proof of the one

tends to establish the other.”      Peoples, 295 Ga. at 53-54 (citation and

punctuation omitted).

      Before evidence of prior crimes is admissible, the trial court must
      determine that the State has affirmatively shown that: (1) the State
      seeks to admit evidence of the independent offenses or acts for an
      appropriate purpose; (2) there is sufficient evidence that the accused
      committed the independent offenses or acts; and (3) there is
      sufficient connection or similarity between the independent offenses
      or acts and the crimes charged so that proof of the former tends to

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      prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409
      SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B).

Davis v. State, 279 Ga. 786, 787 (3) (621 SE2d 446) (2005) (punctuation

omitted).

      The State gave proper notice of intent to admit this act as a similar

transaction, and the trial court held a hearing. See USCR 31.1, 31.3 (B) At the

hearing, the State offered this previous act for the proper purpose of showing

Rivera’s bent of mind and course of conduct, explained that at least three

witnesses would testify at trial about Rivera’s involvement in this previous

incident, and noted the similarity between this incident and the altercation with

Amaral. The trial court determined that the State’s evidence met the standard

of proof necessary for the admission of this act as a similar transaction. Based

on our review of the record, the trial court properly admitted this previous act

as a similar transaction.

      3. Rivera argues that trial counsel provided ineffective assistance by not

submitting evidence to the jury, through the testimony of the medical examiner,

of Amaral’s toxicology report, which indicated that he had cocaine in his blood

at the time of his death. Rivera asserts that this evidence was part of Rivera’s


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justification defense because it showed that Amaral was on drugs, had an

inflated sense of self, and was a “greater opponent.”

      To establish ineffective assistance of counsel, a defendant must show that

his trial counsel’s performance was professionally deficient and that but for such

deficient performance there is a reasonable probability that the result of the trial

would have been different. Strickland v. Washington, 466 U. S. 668, 695 (104

SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d

280) (2010). To prove deficient performance, one must show that his attorney

“performed at trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.” Romer v.

State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013).              Courts reviewing

ineffectiveness claims must apply a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional performance. Id. Thus,

decisions regarding trial tactics and strategy may form the basis for an

ineffectiveness claim only if they were so patently unreasonable that no

competent attorney would have followed such a course. Id. If the defendant

fails to satisfy either the “deficient performance” or the “prejudice” prong of the

Strickland test, this Court is not required to examine the other. See Green v.

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State, 291 Ga. 579 (2) (731 SE2d 359) (2012).

      At the motion for new trial hearing, the medical examiner testified that the

toxicology reports he received indicated that Amaral had both cocaine and

alcohol in his blood. Although the examiner admitted that cocaine could make

a person more violent, he explained that he did not know how cocaine affected

Amaral in particular. Because there was no evidence regarding when Amaral

had consumed cocaine or what, if any, effect it had on him at the time of the

altercation, evidence regarding the toxicology report would likely have been

excluded as irrelevant to Rivera’s justification defense. See James v. State, 270

Ga. 675 (2) (513 SE2d 207) (1999) (exclusion of marijuana found in victim’s

blood was proper because the defense could not demonstrate how the use of

drugs contributed to the victim’s behavior or that it would have been relevant

to the defendant’s justification defense). Accordingly, counsel did not act

deficiently by failing to present such evidence. See Barrett v. State, 292 Ga. 160

(3) (C) (1) (733 SE2d 304) (2012) (trial counsel did not act deficiently, where

the evidence about the victim’s drug use was irrelevant and inadmissible

because it failed to show that the victim had used drugs at such a time as to have

influenced his behavior).

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      Moreover, at the motion for new trial hearing, trial counsel offered a

reasonable strategic reason for not introducing the toxicology report through the

testimony of the medical examiner, including the following circumstances: (1)

based on his legal research, counsel did not reasonably believe the toxicology

report was admissible; (2) ample evidence had already been presented that

Amaral was intoxicated and counsel believed that introducing additional

evidence of cocaine would not have added to his theory of the defense; and (3)

he tried to limit the medical examiner’s testimony to the cause of death and the

order of stab wounds because, based on past experience, he believed the

examiner tended to be an advocate for the State. See Powell v. State, 291 Ga.

743 (2) (b) (733 SE2d 294) (2012) (finding no deficient performance because

under the circumstances a defense lawyer might have reasonably concluded that

little would have been gained by an objection); Ford v. State, 290 Ga. 45 (5) (c)

(717 SE2d 464) (2011) (“as a general rule, matters of reasonable trial tactics do

not amount to ineffective assistance of counsel”).

      Judgment affirmed. All the Justices concur.




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                          Decided June 30, 2014.

      Murder. Cobb Superior Court. Before Judge Grubbs.

      Ashleigh B. Merchant, for appellant.

      D. Victor Reynolds, District Attorney, John R. Edwards, Jason D.

Marbutt, Assistant District Attorneys, Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for

appellee.




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