CourtListener 10680382

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official text of the opinion.

In the Supreme Court of Georgia

Decided: February 20, 2024

S23A1165. LOPEZ v. THE STATE.

WARREN, Justice.

Appellant Belinda Lopez (“Belinda”) was convicted of malice

murder and possession of a firearm during the commission of a

felony in connection with the shooting death of her husband, Noel

Lopez (“Noel”).1 In this appeal, Belinda contends that the evidence

1 Noel was killed on March 1, 2020. In January 2022, a Catoosa County
grand jury indicted Belinda for malice murder, felony murder based on
aggravated assault, two counts of aggravated assault (one based on shooting
Noel and the other based on striking him on the head with a firearm), and
possession of a firearm during the commission of a felony. At a trial from
March 28 to 31, 2022, a jury found Belinda guilty of all counts. The trial court
sentenced her to serve life in prison for malice murder and five consecutive
years for possession of a firearm during the commission of a felony. The felony
murder count was vacated by operation of law, and the aggravated assault
counts merged with the malice murder conviction. See Dixon v. State, 302 Ga.
691, 698 (808 SE2d 696) (2017). Through new counsel, Belinda filed a timely
motion for new trial in April 2022, which she amended once. After an
evidentiary hearing, the trial court denied the motion on April 20, 2023.
Belinda then filed a timely notice of appeal, and the case was docketed to the
August 2023 term of this Court and submitted for a decision on the briefs.
presented at her trial was legally insufficient to support her

convictions and that her trial counsel provided constitutionally

ineffective assistance. For the reasons explained below, we affirm.

1. The evidence presented at Belinda’s trial, viewed in the light

most favorable to the jury’s verdicts, showed the following. On the

night of February 29, 2020, Belinda, Noel, and Belinda’s friend

Angelica Juarez went to a nightclub in Chattanooga, Tennessee,

where they drank several beers and shots of liquor. They left the

nightclub sometime after 2:00 a.m., and Noel drove them in his

pickup truck on Interstate 75 South toward their homes in Dalton,

Georgia. Belinda sat in the front passenger seat, and Juarez sat

behind her in the rear passenger seat. At 2:55 a.m., Belinda called

911 and reported that Noel had been shot in the head.

Responding investigators found the pickup truck stopped in

the middle southbound lane of Interstate 75. Noel was dead; there

was a gunshot wound on the right, back side of his head; and his

body was “slumped” over the center console. Belinda, who was

crying in the passenger seat, had blood on her hands, pants, and

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feet, but investigators did not see any injuries on her. Juarez was

not in the truck. Investigators observed a hole in the driver-side

window and blood on the steering wheel, front passenger seat, and

back seat. Investigators located a handgun holster on the

passenger-side floorboard, and after they moved Noel’s body, they

found a 9mm semiautomatic pistol in the center console. The slide

of the pistol was not locked, and there was a spent shell casing inside

the gun chamber that failed to eject from the gun. 2

A detective interviewed Belinda around 5:00 a.m. and 12:00

p.m. that day; she was interviewed again on March 2 and May 29.

The interviews were video-recorded, and at trial, the recordings

were admitted into evidence and played for the jury. During the

first interview, Belinda told the following story. Noel was “very

jealous,” “abusive,” and “aggressive.” As he drove Belinda and

Juarez, who was “drunk,” home from the nightclub, he and Belinda

began to argue about her socializing with friends there. Noel

2 A firearms expert later testified at trial that semiautomatic pistols
usually “automatically extract and eject” shell casings.
3
grabbed the pistol from the center console and waved it in her face,

saying “I’m going to kill you.” While the truck was still in motion,

Belinda pushed the pistol away, it discharged, and Noel slumped

over the console. She then got out of the truck, grabbed her cell

phone, and called 911. She discovered that Juarez had left the truck,

and she did not know what happened to the pistol. When the

detective and an investigator interviewed Belinda again around

12:00 p.m., she told a somewhat different story. As she and Noel

were arguing, she hit him with her hands, and he was “coming at

her.” She then heard a gunshot and Noel slumped over, but she did

not remember him grabbing the pistol or her touching the pistol.

The detective and the investigator interviewed Belinda a third

time on the next day, March 2, and she changed her story again. She

said that Noel hit her in the chest and forehead while he was driving,

and she was hitting him and “trying to defend [her]self with [her]

hands.” 3 He stopped the truck as they continued to fight, and she

3 Although Belinda said during the interview that her chest and forehead

were hurt, when the investigator asked if she had any bruising, she said, “No.”
4
then heard a “bang.” She did not see Noel grab the pistol, but she

was “sure” that she did not shoot Noel because she never saw or

touched the pistol. She then suggested that Noel likely grabbed the

pistol from the center console at some point, and that when “they

were struggling or whatever, maybe the gun dropped and shot.”

When the detective interviewed Belinda again on May 29, she

reiterated that she did not touch the gun and that she “believe[d]

that the gun fell out of [Noel’s] hand and that’s how he accidentally

got shot.” Belinda also told the detective that she often scratched

Noel during their fights and that Noel would choke her and leave

bruises on her. At the end of the interview, the detective arrested

Belinda for the charged crimes. The detective and the investigator

testified at trial that they did not observe any injuries on Belinda

during any of her interviews.

Juarez testified as follows. During the ride home from the

nightclub, she was “very drunk” and was sleeping in the backseat of

the truck when she woke up to hear Noel and Belinda fighting. Noel

repeatedly hit Belinda and called her a “whore,” and Belinda told

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him to “stop.” Belinda hit Noel on the side of the head, Juarez heard

a “deafening sound,” and she saw blood come from Noel’s head as he

slumped over. Juarez asked, “[W]hat did you do, Belinda, what

happened”? Juarez then got out of the truck and fled because she

was an undocumented immigrant. When the prosecutor asked if

Juarez was involved in the shooting, she denied any involvement.

The medical examiner who performed Noel’s autopsy

concluded that the gun was fired between six inches and three feet

from Noel’s head and that the manner of his death was homicide.

The examiner testified that “given the range of fire as well as the

location[,] it would be very difficult, perhaps impossible, for [Noel]

to have had this gun in his hand when this gun went off.” The

examiner also identified “fresh” abrasions on Noel’s face and body,

which were consistent with scratches, as well as a laceration on his

face that the examiner testified was likely caused by his being struck

with a small, blunt object, such as a gun.

A firearms expert examined the pistol and testified that it

functioned properly and that she was unable to cause an accidental

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discharge by dropping or jarring it. The expert also testified that

this type of pistol has three safety mechanisms: a trigger safety that

prevents the pistol from discharging unless the trigger is pressed; a

firing-pin safety that blocks the firing pin from moving unless the

trigger is pulled; and a drop safety that prevents the pistol from

discharging if dropped. The expert further testified that having a

“weak hold” on the pistol or holding the top of the pistol when it is

fired may cause a shell casing not to eject but would not cause the

firearm to discharge.

A gunshot primer residue (“GSR”) test showed that Belinda

had more than five particles of GSR on her hands, which according

to an expert witness in microanalysis, indicated that Belinda

discharged a gun, was in close proximity to a gun when it was

discharged, or came in contact with an item that contained GSR.

Juarez had one particle of GSR on her hands.

Belinda did not testify at trial. Opening statements and

closing arguments were not transcribed, but it appears from trial

counsel’s cross-examination of witnesses and his testimony at the

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motion for new trial hearing that Belinda’s primary defense was

that she was defending herself from Noel’s attack when the pistol

accidentally discharged. The jury was instructed on self-defense

and accident.

2. Belinda contends that the evidence presented at her trial

was insufficient—as a matter of constitutional due process and

under OCGA § 24-14-6—to support her convictions for malice

murder and possession of a firearm during the commission of a

felony. Specifically, Belinda asserts that the State failed to disprove

beyond a reasonable doubt her theories of self-defense and accident

and alternatively, that the evidence indicated that Juarez shot Noel.

This claim fails.

In evaluating a challenge to the sufficiency of the evidence as

a matter of constitutional due process, we view the evidence

presented at trial in the light most favorable to the verdicts and ask

whether any rational trier of fact could have found the defendant

guilty beyond a reasonable doubt of the crimes of which she was

convicted. See Jones v. State, 314 Ga. 400, 406 (877 SE2d 232)

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(2022). See also Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,

61 LE2d 560) (1979). And under OCGA § 24-14-6, “[t]o warrant a

conviction on circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every

other reasonable hypothesis save that of the guilt of the accused.”

The evidence, when properly viewed in the light most favorable

to the jury’s verdicts, showed that Belinda and Juarez were the only

people in the truck with Noel when he was shot; Belinda admitted

during her interviews with investigators that she and Noel typically

fought, she often scratched him, and they fought in the truck just

before the shooting; and Noel’s autopsy showed “fresh” scratches on

his face and body. Belinda also gave investigators shifting accounts

of how the shooting occurred: she initially said that the pistol

discharged after Noel waved it in her face and she pushed it away,

and she later claimed that she never saw or touched the gun, which

somehow fell out of Noel’s hand during their struggle and

accidentally discharged. The State presented evidence to rebut

these accounts, including the medical examiner’s testimony that it

9
would have been nearly “impossible” for Noel to have been holding

the gun when it discharged; the firearms expert’s testimony that she

was unable to cause an accidental discharge by dropping or jarring

the pistol; and evidence that the pistol had been placed in the center

console after the shooting, which authorized an inference that

Belinda concealed it there because she was guilty. As to Belinda’s

claims that Juarez was the shooter, the evidence presented at trial

suggested otherwise: Juarez heard a gunshot after Belinda hit Noel

on the head and then fled out of fear because she was an

undocumented immigrant. Moreover, Juarez expressly denied

shooting Noel, and she had only one particle of GSR on her hands,

while Belinda’s hands contained more than five particles of GSR.

This evidence authorized the jury to conclude that Belinda was

guilty beyond a reasonable doubt of malice murder and the related

firearm possession count. Thus, the evidence was sufficient as a

matter of constitutional due process. See Jackson, 443 U.S. at 319.

See also Jones, 314 Ga. at 406-407 (holding that the evidence—

which showed that the gun used in a shooting was functional and

10
had several safety features and the appellant had been violent

toward the victim in the past and had lied to investigators about

how the shooting occurred—authorized the jury to disbelieve the

appellant’s defense that the shooting was an accident and

concluding that the evidence was constitutionally sufficient to

support his conviction for malice murder); Bennett v. State, 304 Ga.

795, 797 (822 SE2d 254) (2018) (explaining that “[i]t was for the jury

to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence” and that the evidence

authorized the jury to reject the appellant’s “contrived and changing

stories” and his claim that he was defending himself from his ex-

wife when his gun accidentally discharged, killing her) (citation and

punctuation omitted).

And although the evidence was circumstantial, it authorized

the jury to reject as unreasonable Belinda’s hypotheses that she

acted in self-defense, that the shooting was an accident, and that

Juarez was the shooter. The evidence was therefore also sufficient

as a matter of Georgia statutory law. See OCGA § 24-14-6. See also

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Smith v. State, 315 Ga. 357, 358, 361 (882 SE2d 289) (2022)

(explaining that “‘where the jury is authorized to find that the

evidence, though circumstantial, was sufficient to exclude every

reasonable hypothesis save that of the guilt of the accused, we will

not disturb that finding unless it is insupportable as a matter of

law’” and concluding that the evidence, which included expert

testimony rebutting the appellant’s claim that the gun used to shoot

the victim accidentally discharged, was sufficient under OCGA § 24-

14-6) (citation omitted); Peacock v. State, 314 Ga. 709, 714 (878 SE2d

247 (2022) (holding that the circumstantial evidence presented at

the appellant’s trial was sufficient under OCGA § 24-14-6, as it

authorized the jury to reject his alternative hypothesis that someone

else killed the victims, given his “shifting stories that conflicted with

other evidence”).

3. Belinda also argues that her trial counsel provided

constitutionally ineffective assistance by failing to pursue requests

for certain jury instructions and by failing to object to the

prosecutor’s closing argument. To prevail on these claims, Belinda

12
must establish that her trial counsel’s performance was deficient

and that she suffered prejudice as a result. See Strickland v.

Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984);

Gardner v. State, 310 Ga. 515, 518 (852 SE2d 574) (2020). To prove

deficient performance, Belinda must show that her counsel

performed at trial “‘in an objectively unreasonable way, considering

all the circumstances and in the light of prevailing professional

norms.’” Gardner, 310 Ga. at 518 (citation omitted). Belinda bears

the burden of overcoming the “‘strong presumption’ that counsel

performed reasonably.” Id. (citation omitted). To carry this burden,

she must demonstrate that no reasonable lawyer would have done

what her lawyer did or would have failed to do what her lawyer did

not. See id. To prove prejudice, Belinda must show that there is a

reasonable probability that, but for counsel’s deficiency, the result

of the trial would have been different. See Strickland, 466 U.S. at

694. We need not address both prongs of the Strickland test if

Belinda makes an insufficient showing on one. See id. at 697.

(a) Belinda claims first that her trial counsel was ineffective for

13
withdrawing a requested jury instruction on voluntary

manslaughter, see OCGA § 16-5-2, 4 and by failing to request jury

instructions on unlawful-act involuntary manslaughter (based on

reckless conduct), see OCGA § 16-5-3 (a), and unlawful-manner

involuntary manslaughter, see OCGA § 16-5-3 (b).5 Because Belinda

4 OCGA § 16-5-2 says:

(a) A person commits the offense of voluntary manslaughter when
he causes the death of another human being under circumstances
which would otherwise be murder and if he acts solely as the result
of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable
person; however, if there should have been an interval between the
provocation and the killing sufficient for the voice of reason and
humanity to be heard, of which the jury in all cases shall be the
judge, the killing shall be attributed to deliberate revenge and be
punished as murder.
(b) A person who commits the offense of voluntary manslaughter,
upon conviction thereof, shall be punished by imprisonment for not
less than one nor more than 20 years.

5 OCGA § 16-5-3 says:

(a) A person commits the offense of involuntary manslaughter in
the commission of an unlawful act when he causes the death of
another human being without any intention to do so by the
commission of an unlawful act other than a felony. A person who
commits the offense of involuntary manslaughter in the
commission of an unlawful act, upon conviction thereof, shall be
punished by imprisonment for not less than one year nor more
than ten years.
(b) A person commits the offense of involuntary manslaughter in
the commission of a lawful act in an unlawful manner when he
causes the death of another human being without any intention to

14
has not shown that trial counsel performed deficiently in these

respects, she cannot succeed on these claims.

At the motion for new trial hearing, trial counsel testified that

he consulted with Belinda several times about the weaknesses in

her case and the possibility of pursuing the lesser offenses of

voluntary and involuntary manslaughter; he advised her of the

potential sentences for those crimes, including that unlawful-

manner involuntary manslaughter is punishable only as a

misdemeanor, see OCGA § 16-5-3 (b); she did not want to pursue the

lesser offenses; he “didn’t disagree with her”; and his decision to

pursue an all-or-nothing defense based on the theory that Belinda

was defending herself from Noel when the gun “went off,” was “fact

dependent” and “dependent upon the client’s wishes.” Belinda

testified at the hearing that counsel did not explain the weaknesses

in her case; he only briefly discussed the possibility of pursuing the

do so, by the commission of a lawful act in an unlawful manner
likely to cause death or great bodily harm. A person who commits
the offense of involuntary manslaughter in the commission of a
lawful act in an unlawful manner, upon conviction thereof, shall
be punished as for a misdemeanor.
15
offenses of voluntary and involuntary manslaughter; he informed

her that there were lesser punishments for those crimes but did not

tell her that unlawful-manner involuntary manslaughter was a

misdemeanor; she did not want to pursue those lesser offenses at

the time of trial because she believed she was “innocent”; and if she

had known about the weaknesses in her case and the potential

misdemeanor sentence, she would have wanted the jury to consider

the lesser offenses.

Even assuming (without deciding) that the evidence presented

at trial would have authorized instructions on voluntary and

involuntary manslaughter, trial counsel’s decision not to pursue

those instructions was not so unreasonable that no competent

attorney would have made it under the circumstances. As we have

explained, “‘[d]ecisions about which defenses to present and which

jury charges to request are classic matters of trial strategy, and

pursuit of an all-or-nothing defense is generally a permissible

strategy.’” Gardner, 310 Ga. at 519 (citation omitted). Belinda

maintained throughout her interviews with investigators that she

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was defending herself from Noel’s attack when the gun accidentally

discharged, although she also provided shifting accounts of how the

shooting occurred. Trial counsel’s decision to pursue an all-or-

nothing defense that was consistent with Belinda’s interview

statements was not patently unreasonable. See, e.g., Velasco v.

State, 306 Ga. 888, 893 (834 SE2d 21) (2019) (holding that trial

counsel did not perform deficiently by failing to request a voluntary

manslaughter instruction, because the appellant maintained during

consultations with counsel and at trial that he acted in self-defense,

a theory that is generally inconsistent with a claim of voluntary

manslaughter); Smith v. State, 301 Ga. 348, 353-354 (801 SE2d 18)

(2017) (concluding that trial counsel did not perform deficiently by

deciding not to request jury instructions on involuntary

manslaughter and reckless conduct and by instead pursuing an all-

or-nothing defense of accident, which was “based on his client’s

account of the events”).

And although Belinda claims that counsel did not adequately

advise her about the weaknesses in her case or the lesser offenses

17
and that he improperly “ceded” to her the decision about whether to

request instructions on those offenses, the trial court was authorized

to credit counsel’s testimony that after thoroughly consulting with

Belinda, they both agreed to pursue an all-or-nothing strategy. See

Anthony v. State, 311 Ga. 293, 297 (857 SE2d 682) (2021)

(explaining, in the context of an ineffective assistance claim, that the

trial court was authorized to implicitly credit trial counsel’s

testimony at the motion for new trial hearing over the appellant’s

contradictory testimony). See also Goodson v. State, 305 Ga. 246,

250 (824 SE2d 371) (2019) (rejecting the appellant’s claim that his

trial counsel was ineffective for failing “to insist on the inclusion of

a voluntary manslaughter instruction” after the appellant asked

counsel to withdraw his request for the instruction, because

counsel’s decision to pursue an all-or-nothing strategy of self-

defense, after consulting with the appellant, was not unreasonable).

In sum, Belinda has not shown that her trial counsel performed

deficiently by failing to pursue requests for the jury instructions she

now asserts should have been given, so she has not established that

18
counsel was constitutionally ineffective. See, e.g., Velasco, 306 Ga.

at 893; Smith, 301 Ga. at 353-354.

(b) Belinda also asserts that trial counsel was ineffective for

failing to object on the ground that the prosecutor violated the

continuing witness rule by re-playing about 20 to 30 minutes of a

recording of one of Belinda’s interviews with investigators during

closing argument. 6 But such an objection would have been

meritless. As we have explained, the continuing witness rule

“regulates which documents or recordings go into the jury room with

the jury during deliberations and which ones do not. The rule has

no application to the replaying of recorded statements . . . during

closing arguments.” Clark v. State, 296 Ga. 543, 549 (769 SE2d 376)

(2015) (rejecting the appellant’s argument that the trial court

violated the continuing witness rule by allowing his video-recorded

statement to the police, which had been admitted into evidence, to

6 We note that the continuing witness rule was unaffected by the
enactment of the current Evidence Code. See Moore v. State, 311 Ga. 506, 512
(858 SE2d 676) (2021).

19
be re-played during the State’s closing argument, because the rule

did not apply in those circumstances) (citation omitted). See also

Lyons v. State, 309 Ga. 15, 19 (843 SE2d 825) (2020) (explaining that

the continuing witness rule “applies to recordings that go back with

the jury into the jury room” and holding that the rule did not prevent

the re-playing of video- and audio-recorded police interviews in the

courtroom at the jury’s request during its deliberations).

Trial counsel did not perform deficiently by failing to make a

meritless objection, so this claim of ineffective assistance fails, too.

See Lee v. State, Case No. S23A1097, 2023 WL 8721108, at *6

(decided Dec. 19, 2023) (explaining that “‘the failure to make a

meritless objection is not deficient performance’”) (citation omitted).7

Judgment affirmed. All the Justices concur.

7 Belinda also argues that the cumulative prejudicial effect of her trial

counsel’s alleged deficiencies deprived her of a fair trial. See Schofield v.
Holsey, 281 Ga. 809, 811 n.1 (642 SE2d 56) (2007). But she has not carried her
burden of proving that counsel performed deficiently in the ways she alleged,
so we need not assess cumulative prejudice. See Scott v. State, 309 Ga. 764,
771 (848 SE2d 448) (2020).
20

318 Ga. 664
FINAL COPY

S23A1165. LOPEZ v. THE STATE.

WARREN, Justice.

Appellant Belinda Lopez (“Belinda”) was convicted of malice

murder and possession of a firearm during the commission of a

felony in connection with the shooting death of her husband, Noel

Lopez (“Noel”).1 In this appeal, Belinda contends that the evidence

presented at her trial was legally insufficient to support her

convictions and that her trial counsel provided constitutionally

1 Noel was killed on March 1, 2020. In January 2022, a Catoosa County

grand jury indicted Belinda for malice murder, felony murder based on
aggravated assault, two counts of aggravated assault (one based on shooting
Noel and the other based on striking him on the head with a firearm), and
possession of a firearm during the commission of a felony. At a trial from March
28 to 31, 2022, a jury found Belinda guilty of all counts. The trial court
sentenced her to serve life in prison for malice murder and five consecutive
years for possession of a firearm during the commission of a felony. The felony
murder count was vacated by operation of law, and the aggravated assault
counts merged with the malice murder conviction. See Dixon v. State, 302 Ga.
691, 698 (808 SE2d 696) (2017). Through new counsel, Belinda filed a timely
motion for new trial in April 2022, which she amended once. After an
evidentiary hearing, the trial court denied the motion on April 20, 2023.
Belinda then filed a timely notice of appeal, and the case was docketed to the
August 2023 term of this Court and submitted for a decision on the briefs.
ineffective assistance. For the reasons explained below, we affirm.