NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 1, 2024
S24A0616. NAJARRO v. THE STATE.
BETHEL, Justice.
Following a jury trial, Sylvia Marie Najarro was convicted of
felony murder and related crimes in connection with the shooting
death of Jamun El Winslow during a drug deal. 1 The trial court
denied Najarro’s motion for new trial, and Najarro appeals,
1 The crimes occurred on February 5, 2020. In October 2022, a Gwinnett
County grand jury indicted Najarro and co-indictees Jaime Manuel Jimenez
and Jayce Thayleen Villafana-Diaz for felony murder predicated on aggravated
assault (Count 1), felony murder predicated on criminal attempt to commit
robbery (Count 2), felony murder predicated on criminal attempt to purchase
marijuana (Count 3), aggravated assault (Count 4), criminal attempt to
commit robbery (Count 5), and criminal attempt to purchase marijuana (Count
6). Najarro was tried alone before a jury from November 7 to 15, 2022. The jury
returned verdicts of not guilty on Counts 2 and 5 but guilty on all remaining
counts. The trial court sentenced Najarro to serve life in prison on Count 3 and
a consecutive term of five years in prison on Count 4. The remaining counts
merged or were vacated by operation of law. Najarro filed a timely motion for
new trial, which she amended twice through new counsel. Following a hearing,
the trial court denied Najarro’s motion, as amended, on December 26, 2023.
Najarro filed a timely notice of appeal, and the case was docketed to this
Court’s April 2024 term and submitted for a decision on the briefs.
contending that her trial counsel rendered constitutionally
ineffective assistance. For the reasons that follow, we affirm.
1. The evidence presented at trial showed as follows. On the
night of the crimes, El Winslow drove to a Gwinnett County gas
station, where he met Najarro and her co-indictees Jaime Manuel
Jimenez and Jayce Thayleen Villafana-Diaz to sell them marijuana.
Surveillance video that was introduced into evidence at trial showed
Najarro and Villafana-Diaz enter El Winslow’s vehicle after he
parked outside the gas station. A short time later, Najarro exited
the vehicle and entered the gas station where a Spanish-speaking
eyewitness overheard Najarro tell Jimenez in Spanish, “Hurry up,
he’s about to leave.” While Najarro waited inside, Jimenez exited the
gas station, approached and attempted to enter El Winslow’s
vehicle, and then brandished a gun. El Winslow attempted to drive
away, and Jimenez fired his gun at El Winslow, striking him in the
upper back. Responding officers found El Winslow deceased in his
vehicle, along with a bag of marijuana.
Investigators identified Najarro and her co-indictees after
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reviewing the surveillance footage from the gas station. Najarro was
identified from distinctive tattoos on her face and neck, which are
visible on the surveillance video. Fingerprints lifted from the
passenger-side door of El Winslow’s vehicle were matched to
Najarro. And a text message sent from Najarro’s phone after the
crimes stated, “We shot her homeboy. We need to go.”
2. Najarro’s sole contention on appeal is that her trial counsel
rendered constitutionally ineffective assistance in four respects. To
prevail on this claim, Najarro bears the burden of demonstrating
both that trial counsel’s performance was deficient and that she was
prejudiced as a result. See Strickland v. Washington, 466 U. S. 668,
687 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). To show deficient
performance, Najarro “must demonstrate that [her] attorney
performed at trial in an objectively unreasonable way considering
all the circumstances and in light of prevailing professional norms.”
Butler v. State, 313 Ga. 675, 683 (4) (872 SE2d 722) (2022) (citation
and punctuation omitted). To show prejudice, Najarro must
demonstrate “a reasonable probability that, in the absence of
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counsel’s deficient performance, the result of the trial would have
been different.” Id. “The failure to demonstrate either deficient
performance or resulting prejudice is fatal to a claim of ineffective
assistance of counsel and obviates the need even to consider the
other.” Bradley v. State, 318 Ga. 142, 144 (2) (897 SE2d 428) (2024).
We address Najarro’s claims in turn.
(a) Najarro’s first claim of ineffective assistance concerns the
admission of body camera footage showing a police officer’s
interview with the Spanish-speaking eyewitness who overheard
Najarro speak to Jimenez just before the shooting, as well as the
admission of a transcript of the interpretation of that interview from
Spanish to English, which was prepared by a court-certified
interpreter. During the interview, which took place shortly after the
crimes, the eyewitness communicated with the assistance of his son,
who acted as an interpreter. The eyewitness and the police officer to
whom the eyewitness made his statement both testified at trial, and
their testimony was, in some respects, inconsistent with the
eyewitness’s prior statement. Thereafter, the State sought to
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impeach both the eyewitness’s and the police officer’s trial testimony
by introducing the body camera footage and transcript of the
interpreted interview. Trial counsel objected to the admission of the
body camera footage on the basis that the eyewitness’s son, who did
not testify at trial, inaccurately interpreted portions of the
conversation, but the trial court admitted the footage over counsel’s
objection. The transcript of the interview was admitted without
objection.
Now, on appeal, Najarro argues that trial counsel was deficient
in failing to raise a hearsay objection to the admission of the body
camera footage. She further asserts that the eyewitness’s statement
amounted to a prior consistent statement, that the State improperly
bolstered the eyewitness’s trial testimony with that prior consistent
statement by introducing the body camera footage into evidence, and
that trial counsel was deficient in failing to object on that basis.
Najarro also contends that trial counsel was deficient in failing to
raise a hearsay objection to the admission of the transcript. Our
review of the record, however, reflects that counsel’s decision not to
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raise further objections was part of a reasonable trial strategy. See
Williams v. State, 302 Ga. 474, 486 (807 SE2d 350) (2017)
(“[R]easonable decisions as to whether to raise a specific objection
are ordinarily matters of trial strategy and provide no ground for
reversal.”). And “[a] defendant who contends a strategic decision
constitutes deficient performance must show that no competent
attorney, under similar circumstances, would have made it.” Gittens
v. State, 307 Ga. 841, 847 (2) (e) (838 SE2d 888) (2020) (citation and
punctuation omitted). Najarro has not made that showing.
At the motion for new trial hearing, trial counsel emphasized
that he does not make objections simply because such objections are
available, explaining that he does not “just say, oh, that’s hearsay,
objection” because his practice is not to object “to those things that
don’t go directly to inculpatory or exculpatory evidence as to [his]
client’s guilt[.]”Trial counsel elaborated that he may decide to forgo
an objection because the evidence at issue “may create an
opportunity . . . in the trial later on to make an argument about
something that is not necessarily obvious,” especially if the evidence
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does not speak directly to his client’s guilt or innocence. And the
record reflects that counsel employed this strategic approach here.
When the trial court overruled trial counsel’s objection to the
admissibility of the body camera footage, counsel shifted his
attention to mitigating the impact of the son’s inaccurate
interpretation and, with input from the trial court, reached an
agreement with the prosecutor as to how the body camera footage
and the transcript of the interview’s interpretation would be
admitted into evidence and presented to the jury. Later, when the
transcript was admitted during the testimony of the interpreter who
prepared the transcript, trial counsel extensively cross-examined
the interpreter regarding the inaccuracy of the son’s interpretation,
with the interpreter agreeing that the son’s interpretation was
“terrible.” And during closing argument, trial counsel argued at
length that the State’s shifting accounts of the crimes — as
evidenced by the testimony of the eyewitness and the police officer,
the body camera footage, and the transcript of the interview —
undermined the credibility of the eyewitness and the soundness of
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the State’s investigation and theory of the case. In light of these
circumstances, we cannot say that, by failing to raise hearsay or
bolstering objections to the body camera footage and transcript of
the interview’s interpretation, trial counsel pursued an objectively
unreasonable strategy, and Najarro makes no effort to demonstrate
otherwise. See Harrison v. State, 309 Ga. 747, 751-752 (2) (848 SE2d
84) (2020) (no deficient performance where trial counsel’s failure to
raise hearsay and bolstering objections arose from trial counsel’s
strategic decision to forego objection in favor of using testimony to
support theory of defense); Sawyer v. State, 308 Ga. 375, 386 (2) (c)
(839 SE2d 582) (2020) (“In light of trial counsel’s testimony, trial
counsel’s decision to use the detective’s testimony in support of a
defense strategy — and not to object to it on hearsay grounds — was
not so patently unreasonable that no competent attorney would have
chosen to forgo an objection to this testimony.” (citation and
punctuation omitted)); Mitchell v. State, 290 Ga. 490, 492 (722 SE2d
705) (2012) (“The decision not to object to certain hearsay or to
leading questions is often the result of reasonable trial strategy.
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Because Appellant has not made a contrary showing, he has failed
to show deficient performance.” (citation and punctuation omitted)).
Najarro therefore has failed to carry her burden of proving that she
was denied the effective assistance of counsel.
(b) Najarro also asserts that trial counsel was ineffective by
failing to raise two additional hearsay objections. Specifically, she
complains that two officers who were not present during her arrest
were permitted to testify without objection that she was arrested in
a hotel room where weapons, drugs, and her cell phone were also
found. 2 She also argues that a hearsay objection was warranted
when the State moved to admit body camera footage showing an
interview with a witness who was on the phone with El Winslow
during the shooting and stated that he heard El Winslow’s car crash
and El Winslow yell at him to call 911.
At the motion for new trial hearing, trial counsel was asked
about his decision not to object to the admission of this particular
2 One officer obtained the arrest warrant for Najarro, though he was not
present for her arrest. The other officer obtained and executed a search
warrant for the hotel room in which Najarro was arrested.
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evidence. And again trial counsel’s testimony demonstrates that
counsel made the strategic decision not to object. To that end,
counsel explained that he did not view this particular evidence,
which in no way connected Najarro to the crimes, as prejudicial to
Najarro’s defense because the evidence did not go to the ultimate
issue of Najarro’s guilt. Though trial counsel agreed that the
evidence at issue constituted hearsay, he emphasized that, if
evidence is not “in some way[,] shape[,] or form going to circle back
and burn [his] client as to the ultimate issue . . . , [he is] not just
objecting just to be objecting.” Trial counsel’s decision not to object
to evidence that did not speak directly to Najarro’s guilt “was a
legitimate trial strategy that falls within the range of reasonable
professional conduct.” Durham v. State, 292 Ga. 239, 242 (4) (a) (734
SE2d 377) (2012); see also Gittens, 307 Ga. at 847 (2) (e) (failure to
object to evidence not prejudicial to defendant does not support
finding of deficient performance); Anthony v. State, 303 Ga. 399, 410
(9) (811 SE2d 399) (2018) (same). Accordingly, this claim fails.
(c) Finally, Najarro argues that trial counsel was ineffective by
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failing to move for sanctions under OCGA § 17-16-6 after the State
sought to admit a transcript of the English interpretation of the
eyewitness interview discussed above on the basis that the
transcript was not produced before trial. In particular, Najarro
argues that trial counsel should have moved to exclude the
transcript, one of the remedies specified by OCGA § 17-16-6 (to
remedy a discovery violation, “the court may order the [S]tate to
permit the discovery or inspection, interview of the witness, grant a
continuance, or, upon a showing of prejudice and bad faith, prohibit
the state from introducing the evidence not disclosed or presenting
the witness not disclosed, or may enter such other order as it deems
just under the circumstances”). To demonstrate that trial counsel
performed deficiently by failing to move to exclude the transcript
pursuant to OCGA § 17-16-6, Najarro must establish not only that
a discovery violation actually occurred but also that the trial court
would have granted a motion to exclude the evidence under OCGA
§ 17-16-6 had counsel actually made the motion. See Mims v. State,
304 Ga. 851, 858-859 (2) (c) (823 SE2d 325) (2019) (“[T]rial counsel
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cannot be deficient for failing to file a meritless motion[.]”).
Here, assuming that a discovery violation occurred such that
the trial court would have been authorized under OCGA § 17-16-6
to fashion a remedy for that violation, it is not at all clear that
exclusion of the transcript necessarily would have been warranted.
As we have explained, “[e]xclusion of evidence pursuant to OCGA §
17-16-6 is a particularly harsh sanction that should be imposed only
where there is a showing of bad faith by the party that has failed to
comply with its discovery obligation and prejudice to the other
party.” Parker v. State, 309 Ga. 736, 742-743 (4) (848 SE2d 117)
(2020) (citation and punctuation omitted). Najarro’s conclusory
argument on this point, unsupported by citation of authority, falls
far short of demonstrating either the requisite bad faith or resulting
prejudice to support the transcript’s exclusion under OCGA § 17-16-6. Moreover, the record reflects that trial counsel requested and was
given time to review the transcript of the interview’s interpretation
before it was introduced at trial. Though trial counsel did not ground
his request for time to review the transcript in the provisions of
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OCGA § 17-16-6, a continuance is one of the remedies contemplated
by that statute. And trial counsel effectively obtained the benefit of
a continuance here. In short, Najarro has wholly failed to establish
that trial counsel performed deficiently by failing to seek to exclude
the transcript under OCGA § 17-16-6. See Mims, 304 Ga. at 858-859
(2) (c). As such, this claim, like the others, fails. 3
Judgment affirmed. All the Justices concur.
3 Najarro argues in passing that the cumulative effect of trial counsel’s
deficiencies should be considered. We have neither assumed nor identified any
instance of deficient performance, however, so there are no errors to aggregate,
and Najarro’s claim of cumulative error also fails. See Blocker v. State, 316 Ga.
568, 583 (5) (889 SE2d 824) (2023).
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