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Gordillo v. State

The trial court properly excluded evidence of the victim's alleged propensity for violence since no attempt was made to assert a defense of justification.

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A Cobb County jury found Guillermo Gordillo guilty as a party to the crime of aggravated battery for Guillermo’s and co-defendant Omar Gonzalez’s joint attack on a fellow inmate at the Cobb County Adult Detention Center, wherein Guillermo forced the victim into his cell by beating him with his fists, thereby enabling Gonzalez to beat the victim with a broom handle “until he was almost dead”; the attack left the victim partially paralyzed and brain damaged. Without challenging the sufficiency of the evidence against him, Gordillo appeals and argues that the trial court improperly sustained a State’s objection to Gordillo’s opening statement; that the trial court erred by abridging his right to cross-examine two State’s witnesses; and that he received ineffective assistance of counsel at trial. Upon review of these claims, we find each meritless and affirm Gordillo’s conviction.

1. We reject the claim that the trial court erred in sustaining objection to Gordillo’s opening statement when Gordillo attempted to, as he puts it by brief, “state, illustrate, and demonstrate” to the jury that he was guilty of no more than the lesser included offense of simple battery. “Defense counsel’s statement shall be restricted to expected proof by legally admissible evidence, or the lack of evidence.”1 The trial court had neither instructed the jury on the offense of simple battery nor decided that the evidence warranted such instruction. Accordingly, Gordillo’s attempt to argue the law during opening statement was improper, and the trial court’s ruling prohibiting such argument was not error.

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