in the supreme court state of georgia state of georgia...
TRANSCRIPT
IN THE SUPREME COURT
STATE OF GEORGIA
STATE OF GEORGIA, )
) CASE NO. S16A0122
Appellant, )
)
v. )
)
MALCOLM BROWN )
DEMETRE EDWARD MASON )
FRANKLAND HENDERSON )
MICHAEL HASKER JENKINS )
JAIMEE E. HARRELL )
KATRINA A. SHARDOW )
TRAON JOSHUA TURK, )
)
Appellees. )
_____________________________
BRIEF OF APPELLEE MASON
DARYL QUEEN
ASSISTANT PUBLIC DEFENDER
STONE MOUNTAIN JUDICIAL CIRCUIT
ATTORNEY FOR DEFENDANT MASON
STATE BAR NO. 590813
BRYAN HENDERSON
ASSISTANT PUBLIC DEFENDER
STONE MOUNTAIN JUDICIAL CIRCUIT
ATTORNEY FOR DEFENDANT MASON
STATE BAR NO. 821624
Please serve:
Bryan Henderson
Law Offices of the DeKalb County Public Defender
320 Church Street
Decatur, GA 30030 / (404) 371-2222
TABLE OF CONTENTS
SUMMARY OF THE ARGUMENT ........................................................................ 4
STATEMENT OF THE CASE .................................................................................. 9
STANDARD OF REVIEW .....................................................................................10
ARGUMENT AND CITATION OF AUTHORITY ...............................................11
I. The Virginia Indictment is Not Admissible under O.C.G.A. § 16-15-9. .......11
A. The Preamble to the Virginia Indictment is Not Evidence. ........................14
i. The Preamble is Surplusage. .....................................................................14
ii. The Virginia Indictment is inadmissible hearsay under O.C.G.A. § 24-8-
802 and O.C.G.A. § 24-8-803(22) ............................................................16
B. The Assertions in Paragraphs One through Thirteen of the Preamble to the
Virginia Indictment are Not Connected to the Defendants Charged in that
Indictment. ...................................................................................................18
C. The Defendants in the Virginia Indictment are Not Associated in Fact with
the Defendants. ............................................................................................20
II. The Virginia Indictment is Not Admissible Under O.C.G.A. § 24-4-404(b).
25
A. The Virginia Indictment is Inadmissible to Show Motive. .........................26
B. The Virginia Indictment is Inadmissible as Proof of Gang Activity. .........28
C. The Virginia Indictment is Inadmissible as an Action of the Defendant. ...28
D. The Virginia Indictment is Inadmissible as the Danger of Unfair Prejudice
its Introduction Poses Substantially Outweighs its Probative Value. .........29
III. The Virginia Indictment is Not Intrinsic Evidence. .......................................30
IV. The Virginia Indictment is Not Admissible Under O.C.G.A. § 24-4-403. ....34
A. Admission of the Virginia Indictment Poses a Substantial Danger of Unfair
Prejudice Because it Denies the Defense Cross Examination. ...................34
B. Admission of the Virginia Indictment Poses a Substantial Danger of Unfair
Prejudice Because it offers Expert Testimony without the Safeguard of
Expert Qualification. ...................................................................................41
CONCLUSION ........................................................................................................44
4
BRIEF OF THE APPELLEE
PART I.
SUMMARY OF THE ARGUMENT
The State is attempting to admit the preamble to Federal Indictment
Number 13-CR-350 [Hereafter: the Virginia Indictment], a document which is by
its very nature not evidence, the concoction of a lone out of state prosecutor,
representing nothing more than that prosecutor’s unsubstantiated opinions.1 The
Virginia Indictment is inadmissible hearsay under O.C.G.A. § 24-8-802 and does
not fall under the exception for prior judgment of conviction provided in O.C.G.A.
§ 24-8-803(22). The State offers no alternative vehicle through which to admit this
evidence, save an argument that O.C.G.A. § 16-15-9 nevertheless requires
admission. The State would thus set O.C.G.A. § 16-15-9 outside of and apart from
the rules under O.C.G.A. §§ 24-8-802 and 24-4-403.
Moreover, the factual findings of the court make the Virginia Indictment
inadmissible under O.C.G.A. § 16-15-9. The State wants to admit the preamble as
evidence in the murder trial of the Appellees, men and women unrelated in any
discernable way to the defendants named in the Virginia Indictment.
1 United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986) (“Insofar as the
language of an indictment goes beyond alleging elements of the crime, it is mere
surplusage that need not be proved”).
5
Despite the fact that the State argues throughout its Amended Brief that it
sought to “use a Virginia federal indictment and the resulting convictions,”
Amended Brief of the Appellant, pp. 4, 8, 9, 15, 23, 24, 26, 27 (emphasis added),
the record below clearly demonstrates that the State has little interest in admitting
the convictions of the defendants in the Virginia Indictment or even the charges
against those defendants, focusing instead on the preamble to the indictment.
Explaining this purpose further, the State offered that, “we’re not talking about the
offense or the offenses themselves,” but rather, “about this federal indictment that
[the State] would like to tender…that [the State] would like to tender and make
admissible during trial.” (T. 104, lines 8-12).2
The State’s main focus is the preamble to the indictment, specifically
paragraphs one through thirteen which lay out a Virginia prosecutor’s claims about
the characteristics of Bloods-style gangs generally and make no specific reference
to any behaviors of the charged Virginia set.3 The State further makes this clear in
a chart included in its brief to this Court which purports to show eleven
“similarities” between the evidence it expects to prove in the pending case and the
“facts proven in Federal Indictment 13-CR-350.” Amended Brief of the Appellant,
p. 19.
2 “T.” refers to the digital record document Transcript2, a transcript of the March
17, 2015 motions hearing on the State’s Motion to Admit. 3 The term “set” refers to a group of gang members.
6
All eleven of these supposed facts are drawn from paragraphs one through
thirteen of the preamble to the federal indictment. (R. 360-66). The selections
included in the chart are taken from paragraphs 2, 4, 5, 6, 8, 9, and 12 of the
preamble.4
Paragraphs one through five discuss the formation of Bloods-style gangs
generally in the 1970s and their rise to power through the 1990s. These gangs
include the “Nine Trey Gangster Bloods” but also “Mad Stone Villains,” “Hit
Squad Brims,” and “Sex-Money-Murder.” Paragraphs six through thirteen discuss
the organization of Bloods-style gangs generally including ranks, tattoos, and rules.
The above-mentioned paragraphs contain the alleged “similarities” to the
Defendants on trial as listed in the State’s chart, but additionally contain numerous
allegations which are either contradictory to the facts in the present case,5 or are
unrelated to the present case.6
None of these facts are evidenced by any of the actual allegations against the
particular defendants in the Virginia Indictment. All of the facts discuss Bloods-
style gangs generally. For example, the State alleges similarity because the
4 The sixth selection, “Use of 1993 or 93 to show gang affiliation” is not an
allegation contained in the Virginia Indictment. The origin of this allegation is
unknown. 5 All members of the “original sets” were African American but Defendant
Harrell is Caucasian. (R. 361). 6 For example, there is no allegation in the present case that any members
were beat in for 31 seconds. (R. 365).
7
Defendants replace Cs with Bs in text messages. Amended Brief of the Appellant,
p.19. However, the Virginia Indictment never alleges that any defendants charged
therein actually replaced Cs with Bs in any message, only that this behavior can be
ascribed to Bloods-style gangs generally. (R. 363-64). None of these alleged facts
are elements of the crimes with which those Virginia defendants were charged.
None of those facts are necessary admissions made by those defendants in entering
their pleas to the various counts or necessary facts found by a jury in convicting
other defendants. None of these “facts” are facts. The preamble to the indictment is
“surplusage.”
The preamble does not tie any of its claims to the actions of the charged
defendants in the Virginia case, and as such the State cannot use the preamble for
the State’s alleged purpose of showing the “striking similarities between the Nine
Trey Gangster set that was there in Virginia and the Nine Trey Gangster set that we
have here in Georgia.” (T. 102, lines 19-21). See also (T. 103, lines 15-18) (“a lot
of the similarities from that case are also available in this case”). Because the
claims in the preamble do not connect to the defendants in Virginia (without a
witness presenting actual evidence), those defendants likewise cannot be connected
to the Defendants in the present case.
Although the record below demonstrates that the State has only a feigned
interest in the actual charges or offenses of the Virginia defendants, were its focus
8
different the offenses and charges would remain inadmissible. Without a witness to
tie the claims in the preamble of the Virginia indictment to the defendants in that
case there is nothing to connect the defendants in that case to the Defendants in the
present case. The State admits there is no such connection: “[t]his federal
indictment is not involving the Defendants in this case”; “the Defendants in the
currently pending indictment are not directly connected to the Defendants in
federal indictment number 13-CR-350.” (T. 101, lines 23-24); (R. 260).
At the hearing before the trial court the State asked an excellent question: “I
know at first blush, your Honor may be thinking, these people [in the Virginia
Indictment] don’t even know the individuals in this case, so why should we allow
this in?” (T. 102, lines 22-24). The State has never answered this question with any
clarity.
The exclusion of the Virginia Indictment was proper because the evidence is
inadmissible under O.C.G.A. § 16-15-9, inadmissible as hearsay under O.C.G.A. §
24-8-802 and O.C.G.A. § 24-4-803(22), inadmissible under O.C.G.A. § 24-4-
404(b), inadmissible as intrinsic evidence, and inadmissible under O.C.G.A. § 24-
4-403. For all of the forgoing reasons the trial court’s judgment should be
sustained.
9
STATEMENT OF THE CASE
On August 26, 2014, Malcolm Brown, Demetre Edward Mason, Frankland
Henderson, Michael Hasker Jenkins, Jaimee E. Harrell, and Katrina A. Shardow
were indicted by a DeKalb County grand jury for, in relevant part, counts of
Violation of the Street Gang Terrorism and Prevention Act codified at O.C.G.A. §
§ 16-15-1 et seq. (R. 5).
On February 27, 2015 the State filed its Motion to Admit Evidence of
Unindicted Criminal Gang Activity and in the Alternative Notice of Intent to
Admit Evidence Pursuant to 24-4-404(b) (Hereafter: Motion to Admit). In that
motion the State requested that the trial court “allow evidence of unindicted
criminal gang activity during the trial of the above referenced case.” Specifically,
the State sought to introduce the allegations in Virginia Indictment.
The State’s Motion to Admit was heard on March 17, 2015. Evidence and
argument was confined to the admissibility of the Virginia Indictment. No other
specific instance of unindicted criminal gang activity was offered by the State as
evidence, and therefore no argument was offered by the State or Defense as to the
admissibility of any other unindicted criminal gang activity. All evidence presented
was given through proffer.
At the conclusion of the hearing, and after expressing various concerns with
the proffered evidence, the trial court orally denied the State’s Motion. (T. 127-31).
10
The trial court issued a brief order denying the State’s Motion to Admit on March
23, 2015. (R. 313).
On March 26, the State filed a Notice of Appeal. The case was docketed on
September 30, 2015.
STANDARD OF REVIEW
The question before this Court is: Did the trial court abuse its discretion in
ruling the Virginia Indictment inadmissible under O.C.G.A. § 16-15-9, O.C.G.A. §
404(b) and O.C.G.A. § 403? See Smith v. State, 284 Ga. 304, 306(3) (667 S.E.2d
65) (2008) (“We review a trial court’s evidentiary rulings under an abuse of
discretion standard of review”); State v. Brown, 333 Ga. App. 643, 654(3) (777
S.E.2d 27) (2015).
11
PART II.
ARGUMENT AND CITATION OF AUTHORITY
I. The Virginia Indictment is Not Admissible under O.C.G.A. § 16-15-
9.
While the State contends in its brief before the Court that “[t]he trial court
clearly abused its discretion in refusing to consider O.C.G.A. § 16-15-9 in its
order,” the fact is that the trial court addressed the issue at length at the hearing and
explained in detail why O.C.G.A. § 16-15-9 does not allow the admission of the
Virginia Indictment. (T. 21, first full paragraph). Far from the “errant conclusion of
law” based on “the wrong legal standard” suggested by the State, the trial court
applied the proper standard outlined in O.C.G.A. § 16-15-9 and found the State’s
presentation of evidence lacking. Id. (emphasis in the original) (citing Williams v.
State, 328 Ga. App. 876 (763 S.E.2d 261) (2014)). See also (T. 109, lines 18-19; T.
111, lines 3-6; T. 113, lines 3-4; T. 113, lines 24-25; and T. 114, lines 1-2).
To the extent that the State’s Motion to Admit relies only on the authority
provided by O.C.G.A. § 16-15-9, the controlling language is found within. “The
commission of any offense enumerated in paragraph (1) of Code Section 16-15-3
by any member or associate of a criminal street gang shall be admissible in any
trial or proceeding for the purpose of proving the existence of the criminal street
12
gang and criminal gang activity.” (emphasis added). The State argues that this is
its purpose in admitting the Virginia Indictment. (R. 258).
The charges in the Virginia Indictment are enumerated offenses within
O.C.G.A. § 16-15-3 as required. However, they do not serve the stated purpose:
“proving the existence of the criminal street gang.” The state may prove the
existence of a criminal street gang by introducing proof of the commission of any
enumerated offence “by any member or associate of a criminal street gang.”
O.C.G.A. § 16-15-9. In order to understand who is a “member or associate of a
criminal street gang,” we must look to O.C.G.A. § 16-15-3(2). Under O.C.G.A. §
16-15-3(2), a gang is an “organization, association, or group of three or more
persons associated in fact, whether formal or informal, which engages in criminal
gang activity.” (emphasis added). Therefore, a criminal street gang has three
required characteristics: (a) at least three persons; (b) those three or more persons
are associated in fact; and (c) those three or more persons engage in criminal gang
activity. In order for an individual to be considered a “member or associate of a
criminal street gang,” they must be associated in fact with the three or more other
persons engaged in criminal gang activity.
The State can prove the existence of a criminal street gang by, “evidence of
a common name or common identifying signs, symbols, tattoos, graffiti, or attire or
other distinguishing characteristics, including, but not limited to, common
13
activities, customs, or behaviors.” Brief of the Appellant, p. 14 (citing O.C.G.A. §
16-15-3) (emphasis added). The Virginia Indictment was included as an attachment
to the State’s Motion to Admit. The State called this indictment “the crux” of the
extrinsic gang evidence the State hoped to introduce. (T. 101, lines 17-20).
The State’s theory is focused on a single word in a single section of the
statute without any regard for context. The State then presents as many arguments
as possible, some contradictory, for admissibility based upon this single word. The
State’s argument hinges exclusively on the use of the word “shall” in O.C.G.A. §
16-15-9:
The commission of any offense enumerated in paragraph (1) of
Code Section 16-15-3 by any member or associate of a criminal
street gang shall be admissible in any trial or proceeding for the
purpose of proving the existence of the criminal street gang and
criminal gang activity. (emphasis added).
In the State’s reading, this section of the statue exists in a vacuum and is the
answer to any and all questions of admissibility. If the State offers it, it SHALL be
admissible. Factual findings, burdens of proof, questions of relevance and concerns
of unfair prejudice are meaningless under the State’s interpretation. To the State
shall means shall, and all other words are meaningless and superfluous. If the State
says the evidence proves gang activity, the trial court is divested of even the
slightest discretion in the admission of such evidence and it is in fact an abuse of
discretion to refuse the admission of such evidence. See Amended Brief of the
14
Appellant, p. 13 (“The trial court was required to admit the federal indictment for
the purpose of allowing the state to meet its burden of proof in showing the
existence of a criminal street gang and criminal gang activity.”) (emphasis added).
This is an “unreasonable” and “absurd result,” of the type this Court cautioned
against when previously interpreting the application of this same statue in
Rodriguez v. State, 284 Ga. 803 at 805(1) (671 S.E.2d 497) (2009). Just as in
Rodriguez, the Appellants “parse words in a tortuous manner” and propose a
construction which makes a portion of the statue “meaningless.” Id.
Thankfully, the Court gave guidance in Rodriguez, that, “[t]he various
provisions of a statute ‘should be viewed in harmony and in a manner which will
not produce an unreasonable or absurd result.’” Id.
A. The Preamble to the Virginia Indictment is Not Evidence.
i. The Preamble is Surplusage.
The State seeks to introduce far more than crimes committed by the Virginia
defendants. The focus of the State, as discussed above, is plainly on the facts
alleged within the preamble. Neither the preamble nor the facts contained within
are evidence. In United States v. Jordan, 626 F.2d 928, 931 (D.C. Cir. 1980), the
court noted that “[t]he language of an indictment that goes beyond alleging the
elements of the statute is mere surplusage which need not be proven.” None of the
15
facts from paragraphs one through thirteen of the preamble are elements that were
necessary to be proven in the Virginia Indictment. These allegations are
surplusage.
Moreover, the court in United States v. Cooper, 384 F. Supp. 2d 958, 960
(W.D. Va. 2005), explained further that
Rule 7(c) of the Federal Rules of Criminal Procedure
provides that “the indictment ... must be a plain, concise,
and definite written statement of the essential facts
constituting the offense charged.” This provision
contemplates an indictment that merely pleads each of
the factual elements of the offense charged. It does not
contemplate the inclusion of every piece of evidence that
ultimately may be relevant to building a case against the
defendant.
(internal citations and punctuation omitted, ellipsis and emphasis in original).
The preamble is not evidence in part because a defendant need not admit to
all the language of an indictment in order to enter a plea to that indictment. See
United States v. Montoya-Echeverria, 991 F. Supp. 2d 1048, 1050 (N.D. Iowa
2013) (“Defendant need not admit his prior conviction was an aggravated felony in
order to enter a plea of guilty to the charged offense. In other words, the
indictment’s “aggravated felony” allegation is surplusage and should be stricken so
defendant may enter a plea of guilty without admitting that allegation”).
16
ii. The Virginia Indictment is inadmissible hearsay under O.C.G.A.
§ 24-8-802 and O.C.G.A. § 24-8-803(22)
This Court considered a similar issue in Brown v. State, 274 Ga. 31 (549
S.E.2d 107) (2001), where the State sought to introduce proof of a similar
transaction through the narrative portion of a police report. In Brown, this Court
held that the police narrative may “may meet the technical requirements of the
statute,” O.C.G.A. § 24-8-803(6), but that it “does not have the reliability inherent
in other documents that courts have traditionally considered to be business
records.” Id. at 33(1). This Court excluded the admission of the narrative portion of
the police report. Id.
Like the police narrative in Brown, the preamble to the Virginia Indictment,
as surplusage, lacks the indicia of reliability inherent in judgments of previous
conviction. Unlike the police narrative in Brown, this document does not even
meet the technical requirements for admissibility under O.C.G.A. § 24-8-803(22).
O.C.G.A. § 24-8-803(22), the hearsay exception which allows admission of prior
judgments of conviction provides:
Evidence of a final judgment, entered after a trial or upon
a plea of guilty but not upon a plea of nolo contendere,
adjudging a person guilty of a crime punishable by death
or imprisonment in excess of one year to prove any fact
essential to sustain the judgment, but not including,
when offered by the state in a criminal prosecution for
purposes other than impeachment, judgments against persons other than the accused.
17
The final clauses of O.C.G.A. § 24-8-803(22), by their plain language,
preclude the very use intended by the State. While the convictions of third parties
may be used to prove any fact essential to sustain a judgment in most scenarios, the
legislature has specifically prohibited this use by the state in a criminal case where
the judgments are against parties other than the accused.
Therefore, O.C.G.A. § 24-8-802 precludes the admission of the preamble of
to the Virginia Indictment in the instant case as hearsay. O.C.G.A. § 24-8-803, the
vehicle under which the State might seek an exception to the hearsay rule,
specifically precludes the State’s intended use. The preamble is the artificial
construct of a foreign prosecutor, it has no evidentiary value.
Moreover, here, as in Brown, “serious public policy implications would
result” from the decision to admit the introduction to the Virginia Indictment as
substantive evidence of the existence of a criminal gang. 274 Ga. at 35. Like the
decision faced by this Court in Brown, if this type of evidence is ruled to be
admissible, “it is reasonable to expect that in the future it might be the rare case
in which the witnesses actually come to court and testify.” Id. at 35-36
(emphasis added). That same concern must surely exist here. If this Court rules the
“evidence” in the preamble to the Virginia Indictment is admissible in the instant
case, the State will no longer call gang experts to the stand. It will instead rely on
language of its own creation, preambles to indictments, which lacks both
18
credibility and reliability, and which deny defendants their essential right to cross
examination. This attempt to deny the Defendants their opportunity for and right
to cross examination is what this case is all about.
B. The Assertions in Paragraphs One through Thirteen of the
Preamble to the Virginia Indictment are Not Connected to the
Defendants Charged in that Indictment.
The preamble to the indictment does not tie any of the affectations it alleges
to the particular defendants in Virginia; as such those defendants and that
indictment cannot be used to show a criminal street gang exists or that the
Defendants are members of any such gang.
The State alleges that the Defendants here and in the Virginia Indictment are
“similar” because the Defendants here use forms of “Billy Bad Ass” as nicknames.
Amended Brief of the Appellant, p.19. The State specifically references
“billyfooflame93.” Id. None of the defendants in the Virginia Indictment use any
form of “Billy Bad Ass,” as the indictment lists the nickname of each defendant.
(R. 267-68).7
The State alleges the men in Virginia are similar to the Defendants because
of the use of the term “floors” to describe rank, attributing the rank of “5th
floor” to
7 The Virginia Indictment lists the nicknames of the defendants indicted therein as:
“Storm,” “Curtis Dodd,” “Red Rum,” “Black,” “Champ,” “LTK,” “Alizia,” “D-Boy,” “Ill
Will,” “Black Kat,” “Briss,” “Merlot,” “Bloody Tweed,” “J Mo,” “Blitz,” “Lady
Dynasty,” “Trey,” and “Mook.”
19
Defendant Brown. Amended Brief of the Appellant, p.19. However, none of the
Defendants in the Virginia indictment are ever referred to with a rank denoted by
“floor.” Rather, Thaddaeus Snow and Curtis Martino, two of the Virginia
defendants, are said to carry the rank of “5-Star General.” (R. 399).
As noted above, the State alleges similarity because the Defendants replace
Cs with Bs in text messages. Amended Brief of the Appellant, p.19. However, the
Virginia Indictment never alleges that any defendants charged therein actually
replace Cs with Bs in any message, only that this behavior can be ascribed to
Bloods-style gangs generally. (R. 363-64).
The State alleges similarity because of the use of the term “OG” to show
respect, specifically use of the name “Billy Gangster P Og” by a man named Frank
Rosenau. Amended Brief of the Appellant, p.19. Frank Rosenau is not a defendant
in the instant case and no evidence has ever been produced as to who Mr. Rosenau
is or if he is even connected to this case. Moreover, the Virginia Indictment does
not ascribe the use of the term “OG” to any defendant therein.
The State alleges similarity because Defendant Mason has a tattoo that reads
“MOB.” Amended Brief of the Appellant, p.19. Comparatively, the Virginia
Indictment never alleges that any defendants charged therein have MOB tattoos,
only that this behavior can be ascribed to Bloods-style gangs generally. (R. 365).
20
The State alleges similarity between the Defendants and the men in the
Virginia indictment because of the common use of “93” or “1993” tattoos between
the groups. Amended Brief of the Appellant, p.19. The State specifically notes that
Defendant Brown has tattoo reading “1993” and Defendant Jenkins “93.” Id. Not
only does the Virginia Indictment not list a single defendant as having a “1993” or
“93” tattoo, the indictment never alleges that any Bloods-style gang member ever
used such a tattoo to designate gang affiliation.
This pattern continues with the remaining five allegations of similarity: five
pointed star tattoos, use of hand signals, wearing of red, use of 31 UBN rules, and
use of coded language. Amended Brief of the Appellant, p.19. All of the
affectations are taken from paragraphs one through thirteen, and none are related to
any specific alleged behavior of any of the Virginia defendants.
Since the evidence the State seeks to introduce through the preamble does
not relate directly to any of the defendants charged in the Virginia Indictment, it
cannot be considered evidence linking those defendants to the Defendants in this
case.
C. The Defendants in the Virginia Indictment are Not Associated in
Fact with the Defendants.
The State claims that it is entitled to introduce The Virginia Indictment to
show that the alleged gang is an “organization, association, or group of three or
21
more people associated in fact, whether formal or informal, which engages in
criminal gang activity.” (R. 258). The State cannot be entitled to introduce this
evidence while simultaneously admitting that, “this federal indictment is not
involving the Defendants in this case,” and that “the Defendants in the currently
pending indictment are not directly connected to the Defendants in federal
indictment number 13-CR-350.” (T. 101, lines 23-24); (R. 260).
The State’s real purpose is, as the State noted in the motions hearing, “in
order to dispense with our proof, we are asking to have this be allowed because
of the connection that it shows.” (T. 108, lines 19-21) (emphasis added). The State
is trying to enter through the backdoor irrelevant and prejudicial evidence,
avoiding qualifying an expert to offer such testimony or allowing the Defense an
opportunity for cross examination.
The men in the Virginia set are not in the same gang as the Defendants. This
is true whether you look to the statutory definitions provided in O.C.G.A. § 16-15-
9, a plain use of the English language, or the trial court’s findings of fact. The trial
court heard all of the evidence and argument from the State and made a clear
finding that “[t]here’s absolutely nothing to show that these Defendants were
involved whatsoever with that blood set in Virginia.”(T. 130, lines 8-10)
(emphasis added).
22
The State concedes that, “[t]his federal indictment is not involving the
Defendants in this case.” (T. 101, lines 23-24). The defendants in the Virginia
Indictment are members of a “Nine Trey Gangster set in Virginia” and the State
argues that there are “similarities between the Nine Trey Gangster set that was in
Virginia and the set that we have here in Georgia.” (T. 102, lines 19-21; T. 103,
lines 17-18). The State thereby admits that the defendants in the Virginia
Indictment are members of a different “set” of three or more persons engaged in
criminal gang activity than the Defendants. For the purposes of O.C.G.A. § 16-15-
9 different “sets” are different gangs, unless the State can provide evidence that
the two sets are composed of individuals “associated in fact.” Because the State
failed to make a showing at the hearing that the Virginia gang and the alleged
Georgia gang were associated in fact, the trial court properly found as a fact that,
“[t]here’s absolutely nothing to show that these Defendants were involved
whatsoever with that blood set in Virginia.” (T. 130, lines 8-10).
Moreover, the State admits that “the Defendants in the currently pending
indictment are not directly connected to the Defendants in federal indictment
number 13-CR-350.” (R. 260). The Defendants are not associated in fact with any
of the defendants in the Virginia Indictment. Thus this evidence is wholly
irrelevant to the existence of the criminal street gang alleged in the pending
indictment or to show that the Defendants are members of the aforementioned
23
gang. The Defendants do not know these individuals, they have not met them, and
they are not and cannot be construed to be associated with them in fact.
The trial court recognized and noted multiple times during the hearing that
the actions of the “Virginia set” of Nine Trey Gangster Bloods were the actions of
a separate gang from the gang in which the Defendants are alleged to be members
and were therefore inadmissible under a plain reading of 16-15-9. The trial court
explained that it could find no reason to introduce “evidence of some other gang
in some other state.” (T. 113, lines 3-4) (emphasis added). The trial court directly
asked the State if it had “any case where evidence of other gang members in other
states and that was admitted into evidence against a separate group of gang
defendants.” (T. 111, lines 3-6) (emphasis added). The State conceded that there is
no such case. Id. at line 7. When distinguishing the pending case from this Court’s
decision in Morris v. State, 294 Ga. 45 (751 S.E.2d 74) (2013), the trial court noted
that Morris “doesn’t involve evidence of another gang’s activity outside the
state.” (T. 109, lines 18-19). Going further the trial court explained that there must
be some “less constitutionally offensive way” of proving the existence of a
criminal street gang, than by “bringing in evidence of what some other gang has
done in some other state.” (T. 113, lines 24-25, T. 114, lines 1-2).
There is a less constitutionally offensive method available to the State, one
which protects the rights of the Defendants and contributes to the “evidentiary
24
richness and narrative integrity” the State asks for in its brief. Amended Brief of
the Appellant, p. 13. This method is also supported by the holdings of each and
every gang act case this Court has decided. Calling a witness to actually testify at
trial, whether that witness is a gang member, law enforcement personnel, or an
independent gang expert is the accepted method of introduction for unindicted
gang evidence. The problem for the State with calling a live witness is that the
defense will be able to cross examine that witness. If a live witness were to testify
then a simple fact would become apparent: the men charged in the Virginia
indictment are utterly and completely unrelated to the Defendants in this case.8
8 In its brief, the State asserts in conclusory fashion that “Blood gang sets are known
to work with each other to achieve common goals. As a result, the Blood gang,
irrespective of the specific set, is an ‘enterprise’ because it is a group of people associated
in fact, who have common goals, similar intents, and consistent methods of committing
crimes,” but provides zero citations for any of the “facts” it presents concerning Bloods-
style gangs. Amended Brief of the Appellant, pp. 9-11. Most appear to come directly
from the Virginia Indictment, which also does not provide any citations or mechanism for
us to verify the veracity of the claims. According to the 2008 Bloods Street Gang
Intelligence Report prepared by the Commonwealth Of Virginia Department Of State
Police,
Blood sets that share set names with the larger West Coast
and East Coast Bloods [including the Nine Trey Gangsters]
may not be directly connected to the larger gangs ... [and]
[m]any Blood gangs operate as independent sets although
members may know or be related to Bloods in other areas ....
Many small local gangs’ ties to the larger Bloods sets may be
tenuous at best.
Commonwealth Of Virginia Department Of State Police, Bloods Street Gang Intelligence
Report, November 2008,
https://info.publicintelligence.net/BloodsStreetGangIntelligenceReport.pdf.
25
Because the gang whose members were charged in the Virginia Indictment
was found to factually be a different gang than that of which the Defendants are
allegedly members, the actions of this other gang are inadmissible under 16-15-9,
and the trial court properly excluded the Virginia Indictment on that basis.
II. The Virginia Indictment is Not Admissible Under O.C.G.A. § 24-4-
404(b).
The State argued in the alternative that if the Virginia Indictment was not
admissible under O.C.G.A. § 16-15-9, then it was admissible as evidence under
O.C.G.A. § 24-4-404(b). (R. 264). The trial court’s order does address this part of
the State’s argument noting, “Furthermore such evidence [The Virginia
Indictment] is not admissible under a plain reading of O.C.G.A. § 24-4-404(b).”
(R. 314) (emphasis added). However, as a full reading of the text shows, this
finding is in addition to the court’s other reasons for exclusion. The trial court uses
“[f]urthermore” as a notation that this holding is in addition to exclusion under 16-
15-9 because the Virginia Indictment had “little if any relevance.” Id. The Virginia
Indictment is irrelevant because it involved a different gang, as the court
specifically found.
404(b) evidence must meet a 3 part test: 1) the evidence is offered for a
permissible purpose, 2) there is a finding of sufficient likelihood that Defendant
committed the alleged act, and 3) that the probative value of the evidence is not
26
outweighed by a danger of unfair prejudice or a danger of confusion of the issues.
See Amey v. State, 331 Ga. App. 244, 248(1) (770 S.E.2d 321) (2015). The
evidence contained in the Virginia Indictment fails on all three prongs.
Under the first prong, there is no permissible purpose to offer this type of
evidence at trial.
A. The Virginia Indictment is Inadmissible to Show Motive.
The State’s Motion to Admit argued that the Virginia Indictment was
admissible under the first prong to show motive. The State did not elaborate on
this theory of admissibility in either its Motion to Admit or during the hearing. As
noted above, the State concedes that “[t]his federal indictment is not involving the
Defendants in this case,” and that, “the Defendants in the currently pending
indictment are not directly connected to the Defendants in federal indictment
number 13-CR-350.” (T. 101, lines 23-24); (R. 260).
The Defendants do not know the men in Virginia. They do not know who
they are and they do not know what acts they may have committed. How crimes
these Defendants don’t know about, committed by men these Defendants don’t
know, could have motivated them to commit the acts of which they stand accused
is baffling. The State offers two cases in support of this theory of admissibility,
Wolfe v. State, 273 Ga. 670 (544 S.E.2d 148) (2001) and Lingo v. State, 329 Ga.
27
App. 528 (765 S.E.2d 696) (2014) (physical precedent only, citing Wolfe). Both
cases address direct evidence that the accused defendant was a member of a gang,
and committed the acts in the indictment to further the purpose of the same gang of
which he was a member.
In Wolfe, evidence of the defendant’s gang tattoos, gang colors, and use of
gang handshakes was admitted to prove he was a member of the FOLKS gang, and
that, because he was a member, he followed the orders of one of his co-defendants
in conducting the firebombing which lead to the indictment. 273 Ga. at 671, 674.
In Lingo, the Court of Appeals held that evidence of prior gang affiliation was
inadmissible to show identity, and further noted in citing the Wolfe standard that it
would have been likewise inadmissible to show motive. 329 Ga. App. at 532.
Neither citation (nor any case cited in either opinion) addresses any of the issues in
the instant case: use of the indictment a different gang to prove these same
elements.
Here the evidence offered in the Virginia Indictment neither serves to prove
that the Defendants are in fact gang members nor that their actions were motivated
by their gang affiliation. It is merely, as the trial court noted, “evidence of what
some other gang has done in some other state.” (T. 114, lines 1-2) (emphasis
added).
28
B. The Virginia Indictment is Inadmissible as Proof of Gang
Activity.
While not an argument adopted by the State in the motions hearing, a court
could conclude that 16-15-9 creates a permissible purpose under 404(b), to satisfy
the first prong of the analysis under the standard in Amey: the purpose of showing
the existence of a criminal street gang. The trial court properly concluded that the
actions of the Virginia set of Nine Trey Gangster Bloods were the actions of a
separate gang from the gang in which Defendant Mason is alleged to be a member
and were therefore inadmissible to meet the requirements of a prosecution under
16-15-1 et seq. (T. 113, lines 3-4) (“evidence of some other gang in some other
state”) (emphasis added); (T. 111, lines 3-6) (“evidence of other gang members in
other states was admitted into evidence against a separate group of gang
defendants”) (emphasis added); (T. 109, lines 18-19) (“evidence of another
gang’s activity outside the state”) (emphasis added); (T. 113, lines 24-25, T. 114,
lines 1-2) (“bringing in evidence of what some other gang has done in some other
state.”) (emphasis added).
C. The Virginia Indictment is Inadmissible as an Action of the
Defendant.
Assuming arguendo that the first prong of 404(b) analysis is met, the
admissibility of the Virginia Indictment still plainly fails on the second prong,
29
sufficient likelihood that the Defendant committed the alleged acts. There is no
dispute that the Defendants in this case did not commit any of the acts alleged in
the Virginia Indictment. The State conceded that, “This federal indictment is not
involving the Defendants in this case.” (T. 101, lines 23-24). The trial court
explicitly found that “[t]here’s absolutely nothing to show that these
Defendants were involved whatsoever with that blood set in Virginia.”(T. 130,
lines 8-11) (emphasis added).
D. The Virginia Indictment is Inadmissible as the Danger of Unfair
Prejudice its Introduction Poses Substantially Outweighs its
Probative Value.
The third prong, weighing the probative value of the evidence against the
danger of unfair prejudice would also bar admission of the Virginia Indictment as
the danger of unfair prejudice and confusion of the issues posed by the introduction
of this evidence substantially outweighs the probative value of the Virginia
Indictment. The trial court held in its order that, “this evidence would be highly
prejudicial and has little if any relevance as to the crimes charged in this bill of
indictment, said evidence shall not be admitted as its probative value is clearly
outweighed by a danger of unfair prejudice.” (R. 314) (emphasis added).
30
III. The Virginia Indictment is Not Intrinsic Evidence.
The State argues that rather than being extrinsic evidence made admissible
by O.C.G.A. § 24-4-404(b), the Virginia Indictment and specifically paragraphs
one through thirteen of the preamble to that indictment, are “more closely intrinsic
evidence … because the evidence proves acts that are closely related to the charged
offenses.” (R. 265). The State in essence argues that the evidence is intrinsic
because it is admissible under O.C.G.A. § 16-15-9. Amended Brief of the
Appellant, pp. 23-24. However, the trial court found that this evidence
inadmissible under O.C.G.A. § 16-15-9.
The State explains that evidence is not extrinsic, but rather intrinsic when it
is, “(1) an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, (2) necessary to a complete story of the crime,
or (3) inextricably intertwined with the evidence regarding the charged offense.”
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). The State offers a
number of cases to support this proposition, each of which is explored below.
In Edouard, where the defendant was charged with conspiracy to import
cocaine, the court properly admitted as intrinsic evidence: 1) Defendant’s prior
cocaine smuggling activities under 404(b) and 2) Defendant’s threats to a key
state’s witness during the time of the ongoing conspiracy. 485 F.3d at 1343-46.
31
The facts of Edouard are utterly unrelated to the present case and it was perhaps
cited only for its clear delineation of the existing standard.
The State cites United States v. Carboni, 204 F.3d 39 (2d Cir. 2000), for the
proposition that when proving the existence of an enterprise uncharged acts may be
admissible as inextricably intertwined with proof of the enterprise. The court in
Carboni admitted as intrinsic the defendants own alterations to a ledger referred to
as “the perpetual inventory”; these alterations served to mask the actual finances of
the company and to further the conspiracy to defraud the defendant’s business
associates for which the defendant was on trial. Id. at 43. While a defendant’s own
actions furthering the conspiracy for which he is charged are undoubtedly intrinsic,
the allegations of a prosecutor in the preamble to an indictment of unrelated
defendants who cannot through competent evidence be connected to the
Defendants in the instant case is, equally obviously, extrinsic.
The State cites, United States v. Basciano, 599 F.3d 184 (2d Cir. 2010), for
the proposition that the actions of “racketeering confederates” are admissible to
prove the existence of the enterprise. Brief of the Appellant, pp. 24-25. The
unusual “racketeering confederates” language is actually drawn from United States
v. DiNome, 954 F.2d 839 (2d Cir. 1992) which like Basciano addresses the
admissibility of actions charged against co-defendants also charged with
racketeering in the separate trials of the other co-defendants. Neither case supports
32
the State’s position that the actions of uncharged and unrelated individuals can be
admitted against the Defendants in this case.
In DiNome as in this case there were two co-defendants who were not
charged as beings parties to the racketeering; here see Defendant Traon Turk who
is not accused of violating the Street Gang Terrorism and Prevention Act. The
court in DiNome held that those co-defendants who the evidence was not
admissible against were so prejudiced by its introduction that their motions for
mistrial should have been granted and their cases should have been retried
separately. Id. at 844. Accordingly the convictions of those co-defendants were
reversed. Id. The State advances no theory under which O.C.G.A. § 16-14-1 et seq.
would allow admission of the preamble to the Virginia Indictment, instead arguing
its admissibility only under O.C.G.A. § 16-15-9. There is no pending motion to
sever Defendant Turk by the State or Defense and no order severing him has been
issued by the court. As such, the State asks this Court to leave the trial court in the
same position as the court in DiNome: if this evidence were admitted it would so
prejudice Defendant Turk as to require reversal should he be convicted.
The State cites another inapplicable holding: United State v. Matera, 489
F.3d 115 (2d Cir. 2007)9. In Matera, the actions of other members of the same
9 The holding in Matera relies on the holdings in United States v. Miller, 116 F.3d
641 (2d Cir. 1997), and United States v. Thai, 29 F.3d 785 (2d Cir 1994), which also
involve actions of individuals who are actually associated with one another: co-
33
crime family, the Gambinos, including other murders committed by these
members, were admitted against the members on trial to show the existence and
nature of the RICO enterprise. Id. at 120. The key difference between Matera and
the instant case is that the defendants on trial were associated in fact with the men
whose actions were admitted against them. Id. (the court noted that the murders
admitted were committed by John Gotti, younger brother of Matera’s co-defendant
Peter Gotti).
Matera, while finding that the court did not abuse its discretion in admitting
these other intrinsic acts, specifically cautioned about the importance of conducting
an analysis which weighs the prejudice of such intrinsic evidence against its
probative value under Rule 403, “the mere fact that evidence is relevant to an issue
in dispute does not ensure its admissibility.” Id. at 121.
defendants. These cases are unlike the present case where the State seeks to introduce a
prosecutor’s assertions about gang structure in a separate indictment (which cannot even
be tied to the individuals in the Virginia indictment) against unrelated defendants and as
such a more lengthy discussion of those cases has been omitted for brevity.
34
IV. The Virginia Indictment is Not Admissible Under O.C.G.A. § 24-4-
403.
A. Admission of the Virginia Indictment Poses a Substantial Danger
of Unfair Prejudice Because it Denies the Defense Cross
Examination.
The trial court ultimately excluded the Virginia Indictment, not under
O.C.G.A. § 24-4-404(b), but under 24-4-403. The trial court’s order makes clear
that the court found that, “this evidence would be highly prejudicial and has little if
any relevance as to the crimes charged in this bill of indictment”; “its probative
value is clearly outweighed by its prejudice.” (R. 314). See also (T. 119, line 5) (“It
is highly prejudicial”) (emphasis added); (T. 122, lines 12-13) (“It is highly
prejducial”) (emphasis added); id. at line 15, (“It is highly prejudicial”)
(emphasis added); (T. 125 lines 3-4) (“I feel that the sole purpose is to prejudice
the Defendants”) (emphasis added); (T. 126 , lines 2-3) (“I just don’t see how
you’d get it past the prejudice”) (emphasis added).
More than once the trial court expressed frustration with the inability of the
State to provide a single citation, a single example, a single good reason to
introduce this evidence. (T. 111, lines 3-7) (“So do you have a single case where
evidence of other gang members in another state committed crimes and that was
admitted into evidence against a separate group of gang defendants?”) (emphasis
added); (T. 112, line 11) (“well do you have one case on it?”) (emphasis added);
(T. 119, lines 4-5) (“you haven’t given me a legitimate reason why you need it.”)
35
(emphasis added); (T. 125, lines 2-3) (“you haven’t given me any legitimate
argument as to why you can’t get it in in other ways. I feel that the sole purpose
is to prejudice these defendants.”) (emphasis added). The trial court was left with
the inevitable conclusion that the State was trying to, “get in the back door what
you can’t get in the front door”. (T. 119, line 25, T. 120 line 1).
Even worse, as the trial court correctly noted, the State hinges this evidence
on the preamble to an indictment with the specific purpose of denying the
Defendants their essential right to cross examination. “The Defense would never
have a chance to cross examine those Defendants,” the trial court noted. (T. 121
lines 14-15) (emphasis added). “How is that fair? How is that fair?” Id. at 18. “You
just put in a certified copy of an indictment,” the trial court continued, “just to put
in a certified copy of the conviction of some other gang in some other state …
How is that fair? They can’t cross examine a certified copy.”10
Id. at lines 24-25;
(T. 122 lines 4-5) (emphasis added). The State’s superficial response to the trial
10
On cross examination the Defense would elicit the information contained in
footnote 3:
Blood sets that share set names with the larger West Coast
and East Coast Bloods [including the Nine Trey Gangsters]
may not be directly connected to the larger gangs . . . [and]
[m]any Blood gangs operate as independent sets although
they may know or be related to Bloods in other areas . . .
many small local gangs’ ties to the larger Bloods sets may be
tenuous at best.
Commonwealth Of Virginia Department Of State Police, Bloods Street Gang Intelligence
Report, November 2008,
https://info.publicintelligence.net/BloodsStreetGangIntelligenceReport.pdf.
36
court only highlights the State’s true motivation, “They can never cross-examine
… a certified copy. The certified copy of conviction speaks for itself.” Id. at lines 6
and 8-9. Again, the trial court asked the State, “Well, how is it fair? How is it fair?
They cannot cross examine, you know, those individuals and why they entered
their plea of guilty. It’s highly prejudicial.” Id. at lines 10-13.
The State never answers the question, because the answer is so obvious. The
State makes its request to admit the Virginia Indictment recognizing full well the
benefit it provides its case: “They [the Defendants] can never cross examine.” (T.
122, line 6).
It is not fair to allow the preamble to an indictment, the baseless claims of a
partisan, into evidence against anyone, much less unrelated Defendants. The
introduction of this evidence is such an obvious violation of the standard outlined
in O.C.G.A. § 24-4-403 that its exclusion cannot possibly rise to the level of abuse
of discretion.
Addressing the question of prejudice, the State relies on United States v.
Livoti, 196 F.3d 322, 326 (2d Cir. 1999), for the proposition that other acts
evidence is admissible if the conduct involved is not any more inflammatory than
the conduct charged. Livoti in turn cites to United State v. Pitre, 960 F.2d 1112,
1120 (2d Cir. 1992). However, both Livoti and Pitre involve actions actually
undertaken by the defendants in those cases and in both cases other acts were
37
admitted to rebut specific claims by the defense that their actions were either
accidental (Livoti) or unknowing (Pitre). Livoti, 196 F.3d at 326; Pitre, 960 F.2d at
1120. In the instant case, rather than attempting to admit the actions of the charged
Defendants or other members of the same gang, a use clearly intended by the
statue, the State seeks to introduce the claims of a federal prosecutor about gang
members generally; claims the State cannot connect to the defendants in Virginia
indictment must less to the Defendants in the instant case. The State’s reliance on
Livoti and Pitre for guidance is a misapplication of the legal standard to unrelated
facts.
The State also cites United States v. Coonan, 938 F.2d 1553 (2d Cir. 1991),
for the proposition that, “when the defendant engages in a criminal enterprise
which involves very serious crimes, there is a likelihood that evidence proving the
existence of the enterprise through its acts will involve a considerable degree of
prejudice. None the less, the evidence may be of important probative value in
proving the enterprise.” Brief of the Appellant, p. 26. The problem with the State’s
argument is that Coonan says nothing of the sort. The court in that case actually
held that, “during the course of the trial Kelly [a co-defendant bringing the 403
challenge] repeatedly failed to object to the admission of the evidence he now
seeks to challenge” and further that, “the defense not only conceded the existence
of the Westies [the gang in question] but attempted to portray the enterprise in the
38
most brutal terms possible.” 938 F.2d at 1561. The court ultimately held that,
“Kelly has waived his appellate review of this evidentiary claim.” Id. In the dicta
that follows the court noted that even if the issue were to be determined, three
theoretical methods of admission were available to the prosecution. Id. The court
never actually reviewed any Rule 403 balancing conducted by the lower court, nor
conducted any balancing of its own.
Comparing Coonan to the instant case, we see immediate dissimilarities. In
Coonan, the State offered evidence of the structure, operations, and actions of the
Westies gang by presenting actual testimony of witnesses. Id. (“the witnesses
were participants in the events about which they testified”). Here, the State prefers
to hide its allegations behind the empty accusations of a federal prosecutor;
accusations that are subject neither to the qualification standards needed to render
an expert opinion nor to the cross examination necessary to test such an opinion.
This Court considered a similar issue in Brown v. State, 274 Ga. 31 (549
S.E.2d 107) (2001), where the state sought to introduce proof of a similar
transaction through the narrative portion of a police report. This court noted that a
certified conviction standing alone is insufficient to establish the required nexus for
introduction of a similar transaction. Id. at 32. Brown cites to State v. Stephens,
261 Ga. 467, 469(6) (405 S.E.2d 483) (1991), for a delineation of that nexus:
First, there must be evidence that the defendant was in
fact the perpetrator of the independent crime. Second,
39
there must be sufficient similarity or connection between
the independent crime and the offense charged, that proof
of the former tends to prove the latter.
This inquiry is similar to that implicitly required by O.C.G.A. § 16-15-9.
The court must first determine that the actions the State seeks to admit are actions
of “any member or associate” of the gang. O.C.G.A. § 16-15-9. Next the court
must consider if those actions are offered for the purpose of “proving the existence
of a criminal street gang.” Id. Finally, the court must consider whether the actions
actually do tend to prove the existence of a criminal street gang. Id. Without the
court acting as gatekeeper and making these necessary factual findings, O.C.G.A. §
16-5-9 would allow the State to introduce irrelevant and prejudicial evidence
absent the safeguard of cross examination, just as the State seeks in the instant
case.
The trial court in the present case conducted the proper analysis and found
explicitly that the evidence offered by the State was not evidence of the actions of
a member or associate of the gang, but rather, “evidence of some other gang in
some other state.” (T. 113, lines 3-4) (emphasis added). See also (T. 111, lines 3-6)
(“evidence of other gang members in other states was admitted into evidence
against a separate group of gang defendants”) (emphasis added); (T. 109, lines
18-19) (“evidence of another gang’s activity outside the state”) (emphasis added);
(T. 113, lines 24-25, T. 114, lines 1-2) (“bringing in evidence of what some other
40
gang has done in some other state.”) (emphasis added). Because the State could
not satisfy the first of the necessary requirements under O.C.G.A. § 16-15-9,
showing that the actions where those of the same gang, the trial court properly
excluded the evidence as irrelevant and prejudicial.
This Court has explained the necessity of this gatekeeping function, noting
that, “the danger in admitting certain types of evidence of an event is the
organization will gain the opportunity to, ‘use self-serving statements without the
important test of cross examination.’” Brown, 274 Ga. at 33 (emphasis added).
That same danger is equally present here, and that improper advantage is exactly
the upper hand the State seeks to gain. The State asks this Court to give it this
advantage by ignoring the majority of 16-15-1 et seq. in favor of the State’s own
torturous interpretation of O.C.G.A. § 16-15-9.
This Court, in Brown, noted the reason for heightened caution was that,
“Police work by its very nature is adversarial and police investigations are
inherently accusatorial.” 274 Ga. at 33. The Court’s concern is evermore present
in the instant case, where the “evidence” the State seeks to introduce is literally an
accusation against the Virginia defendants’ by their actual adversary, a federal
prosecutor.
41
B. Admission of the Virginia Indictment Poses a Substantial Danger
of Unfair Prejudice Because it offers Expert Testimony without
the Safeguard of Expert Qualification.
The trial court’s questions clearly focused on the substantial danger of unfair
prejudice posed by introducing the preamble to the Virginia Indictment rather than
calling a witness. The trial court directly asked the State, “Can you bring in a Gang
Expert on the Bloods to get that evidence before the jury in a less prejudicial
way?” (T. 111, lines 22-24) (emphasis added). The trial court then noted, “There’s
a less constitutionally offensive way of getting that in than bringing in evidence of
what some other gang has done in some other state and what they pled guilty to.
And you can bring in your street gang expert.” (T. 113 lines 24-25, T. 114, lines 1-
3) (emphasis added). Again the trial court focuses on the danger of unfair
prejudice: “It is highly prejudicial. There are other ways that you can show the
culture of gang activity and what their reach is by bringing in an expert on street
gangs.” (T. 119, lines 5-8) (emphasis added). And again, “You don’t need it. You
can get it in with a street gang expert. So why don’t you use a street gang expert?”
(T. 120, lines 7-9).
The trial court poses an excellent question: why will the State not simply call
an expert? Why is this case different than every other gang case that has preceded
it? The answer was given by the State’s attorney during the hearing; the State
wants to introduce the evidence “in order to dispense with our proof.” (T. 108, line
42
19). The State makes this request recognizing fully well the benefit it provides its
case, “They [the Defendants] can never cross examine.” (T. 122, line 6).
The trial court correctly called this evidentiary maneuver, “new evidence,
unprecedented evidence.” (T. 124, line 25). The fact of the matter is, that both
cases cited by the State for the premise that evidence of “common name or
common identifying signs, symbols, tattoos, graffiti, or attire or other
distinguishing characteristics, including, but not limited to, common activities,
customs, or behaviors” should be admitted rely on the testimony of an expert or
fellow gang member to establish these facts. Amended Brief of the Appellant, p.
14.
In order of their consideration in the State’s brief11
:
In re X.W., 301 Ga. App. 625, 628(2) (688 S.E.2d 646) (2009), “the juvenile
and gang investigator for the Fayetteville Police Department testified that he had
over 120 hours of gang-specific training. He testified that he was familiar with the
gang Young Blood Disciples, also known as ‘YBD’ and the ‘Bloods.’” In re X.W.
also cited another case in which “officers testified that, based on their experience
and training, ‘C.P. was wearing colors associated with the Bloodz gang and that
the pieces of paper he was carrying depicted symbols and codes associated with the
Bloodz.’” Id. (citing In re C.P., 296 Ga. App. 572, 575 (675 S.E.2d 287) (2009)).
11
Rodriguez v. State, 284 Ga. 803, was an interlocutory appeal on purely
constitutional issues and as such does not turn on the particular facts of that case.
43
Importantly, the holding in In re X.W. is limited and clarified by the holding
in In re A.G., a holding the State does not cite. The Court in In re A.G. explains
that, “[e]very case by this Court affirming convictions under O.C.G.A. § 16-
15-13(2) has included more than merely a single common identifying sign to
prove a defendant’s gang membership.” 317 Ga. App. 165 at 166-67 (730
S.E.2d 187) (2012) (emphasis added). The first thirteen paragraphs of the preamble
to the Virginia Indictment do not even contain a single identifying sign which is
linked both to the men in the Virginia indictment and the Defendants in this case as
discussed supra. Even if we expand our consideration to the full indictment, we
find only the allegation of a single identifying sign: a common name, “Trey Nine
Gangster Bloods,” which the men in Virginia and Defendants in this case allegedly
share. (R. 366). Even were the State to include this “fact” in its recitation of
alleged similarities, it would still fall below the standard set forth in In re A.G..
Considering the proffered indictment as a whole, despite the State’s clear focus on
the preamble, we are left with only a shared name.
In re A.G. cites again to In re C.P., discussed above, as well as to Lopez v.
State, 297 Ga. App. 618 (677 S.E.2d 776) (2009), where sufficient evidence to
support a conviction included witness testimony from a former gang member.
Finally, in Zamudio v. State, 332 Ga. App. 37, 40(2) (771 S.E.2d 733)
(2015), “[a] detective assigned to the Conasauga Safe Streets Task Force, operated
44
by the FBI to control gang activity in the area testified both as an expert on gang
recognition and as to the facts he uncovered through his investigation in this case.”
CONCLUSION
Hiding behind an unsupported interpretation of O.C.G.A. § 16-15-9, the
State is attempting to avoid serious issues of admissibility from basic relevance to
obvious hearsay and dangers of unfair prejudice. The State is attempting to
sidestep requirements of expert qualification by introducing the claims of a
prosecutor as material facts and to shield themselves from the consequences of this
maneuver by carrying it out in a fashion designed to prevent even the most
elementary cross examination. The State was thwarted by the trial court’s finding
of fact that the gang in Virginia is unrelated to the Georgia Defendants and the trial
court’s holding that the evidence would not be admitted due to the danger of unfair
prejudice it posed. The State is now attempting to enlist this Court to expand the
powers of the prosecution. The State asks this Court not only to disregard the
findings of fact made by the trial court, but to hold that the trial court abused its
discretion in its evidentiary holdings. The State ask this Court to render this
decision so that it can proceed with an unprecedented and unconstitutional trial by
paper in the most serious of cases.
45
The trial court properly held that O.C.G.A. § 16-15-9 was inapplicable
because the Virginia Indictment is of a different gang, that the Virginia Indictment
was inadmissible under a plain reading of O.C.G.A. § 24-4-404(b) as other acts
evidence against the Defendants, and that the Virginia Indictment was inadmissible
under O.C.G.A. § 24-4-403 because the danger of unfair prejudice it posed
substantially outweighed its meager probative value. We urge this Court to protect
the rights of the Defendants, to protect our adversarial system of justice, and to
affirm the trial court’s ruling.
Respectfully submitted, this the 30th day of November 2015.
/s/ Bryan Henderson
Bryan Henderson
Georgia Bar #821624
Daryl Queen
Georgia Bar #590813
Attorneys for Mr. Mason
320 Church Street
Decatur, GA 30030
(404) 371-2222
46
CERTIFICATE OF SERVICE
This is to certify that I have this day served the within and foregoing
upon the District Attorney, Stone Mountain Judicial Circuit, DeKalb County
Courthouse, 556 North McDonough Street, Decatur, GA 30030 and counsel of
record, for each Appellee to:
Morris P. Fair, Jr.
Attorney for: Malcolm Brown
THE LAW OFFICE OF MORRIS P. FAIR, JR., PC
4262 Clausell Court Suites C & D
Decatur, Georgia 30035
Andre Murray Johnson
Attorney for: Frankland Henderson
LAW OFFICE OF ANDRE JOHNSON,LLC
315 West Ponce de Leon Avenue Suite 915
Decatur, Georgia 30030
Jule McReynolds,
Attorney for: Traon Turk
The McReynolds Law Firm, P.C.
P.O. Box 162665
Atlanta, GA 30321
Kennita Haley
Attorney for: Katrina Shardow
THE HALEY LEGALTEAM, LLC
66 Lenox Pointe, NE
Atlanta, Georgia 30324
47
Gina Bernard
Attorney for: Jaimee Harrell
GEORGIA PUBLIC DEFENDER COUNCIL APPELLATE
DIVISION
120 W. Trinity Place
Suite 310
Decatur, Georgia 30030
Michael Tarleton
Attorney for: Jaimee Harrell
GEORGIA PUBLIC DEFENDER COUNCILAPPELLATE DIVISION
120 W. Trinity Place Suite 310
Decatur, Georgia 30030
Gerald Ashland Griggs
Attorney for: Michael Jenkins
GERALD A. GRIGGS,LLC
1550 Scott Boulevard
Decatur, Georgia 30033
Samuel Olens
Attorney General
40 Capitol Square SW
Atlanta, GA 30334
This 30th day of November 2015.
/s/ Bryan Henderson
Bryan Henderson
Attorney for Mr. Mason
Georgia Bar #821624
Daryl Queen
Attorney for Mr. Mason
Georgia Bar #590813