in the supreme court state of georgia state of georgia,...

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 THE APPELLANTBY THE DISTRICT ATTORNEY

ROBERT D. JAMESDISTRICT ATTORNEY

STONE MOUNTAIN JUDICIAL CIRCUITSTATE BAR NO. 389148

LENNY KRICKASSISTANT DISTRICT ATTORNEY


ANTONIO VEALASSISTANT DISTRICT ATTORNEY


Please serve:Lenny KrickDeKalb County District Attorney’s Office556 N. McDonough Street, Suite 700Decatur, GA 30030 / (404) 371-3202

2

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 THE APPELLANTBY THE DISTRICT ATTORNEY

STATEMENT OF JURISDICTION

The Supreme Court of Georgia, as provided in the Constitution of the State

of Georgia, Article VI, Section VI, Paragraph III, Subparagraph (8), has general

jurisdiction over cases in which the death penalty is, or could be, imposed. This is

such a case. Moreover, the Appellant (“State of Georgia”) is authorized to bring

this appeal pursuant to O.C.G.A. § 5-7-1 (a) (5).

3

STATEMENT OF THE CASE

On August 26, 2014, Mr. Malcolm Brown (a/k/a “Dot”), Mr. Demetre

Edward Mason (a/k/a “Flame” and “Assassin”), Mr. Frankland Henderson (a/k/a

“Bad News”), Mr. Michael Hasker Jenkins (a/k/a “Slim”), Ms. Jaimee E. Harrell,

and Ms. Katrina A. Shardow (a/k/a “Billy Jean (BJ),” were indicted by a DeKalb

County grand jury for committing various violations of the Violation of Street

Gang Terrorism and Prevention Act codified at O.C.G.A. § 16-15-1 et seq.

(hereinafter referred to as the “Act”), and other violent crimes stemming from the

May 19, 2014, shooting death of Ms. Sonia Williams and Ms. Shaniqua Camacho.1

[Record 5].2 These Appellants are associated with the Blood gang, a criminal

street gang. Appellee Mason and Appellee Henderson were also indicted for

violating the Act by committing a separate Armed Robbery and Hijacking a Motor

Vehicle on May 9, 2014.3 [R. 5]. Lastly, the grand jury indicted Appellee Brown,

Appellee Mason, Appellee Henderson, Appellee Harrell, and Appellee Traon

Joshua Turk (a/k/a “Turk”) for Violation of Racketeer Influenced and Corrupt

Organizations Act codified at O.C.G.A. § 16-14-1 et seq. (hereinafter referred to as

“RICO”). [R. 5].

1 Count 1-16 of Indictment Number 14-CR-3627-8.

2 Hereinafter referred to as “R.” followed by the corresponding record pagenumber.

3 Count 17-20 of Indictment Number 14-CR-3627-8.

4

On February 27, 2015, the State filed a Motion to Admit Evidence of

Unindicted Criminal Gang Activity and in the Alternative Notice of Intent to

Admit Evidence Pursuant to O.C.G.A. 24-4-404 (b).4 [R. 257]. By filing that

Motion, the State sought to use a Virginia federal indictment and the resulting

convictions of fellow Blood gang members to prove that the Appellees indicted for

violating the Act in the instant case were part of an organization, association, or

group of three or more persons associated in fact, whether formal or informal,

which engages in criminal gang activity. See O.C.G.A. § 16-15-3 (2). The

Honorable Linda W. Hunter heard the State’s Motion on March 17, 2015. [Entire

Motion Hearing Transcript].5 At the conclusion of the hearing, the trial court

orally denied the State’s Motion. [T. 127-131]. The trial court filed a written

order on March 24, 2015.6 [R. 313].

The State timely filed a Notice of Appeal on March 26, 2015. [R. 1]. The

record was transmitted to this Court on or about July 17, 2015, and the Court

docketed this case on September 30, 2015.

4 The State also argued in the alternative that the Virginia federal indictment andconvictions were admissible as evidence that fell outside the scope of O.C.G.A. §24-4-404 (b). [R. 63-65] [MHT. 116-117].

5 Hereinafter referred to as “MHT.” followed by the corresponding transcript pagenumber(s).

6 On March 25, 2015, the State filed a Motion to Reconsider the Admission ofEvidence of Unindicted Criminal Gang Activity. [R. 291].

5

STATEMENT OF THE PERTINENT FACTS

When the instant case proceeds to trial, the State expects to prove the

following:

On May 19, 2014, the victims were at the home of Appellee Harrell. [Entire

11/3/2014 Bond Hearing Transcript 3 and 28].7 Appellee Mason had brought the

victims to the home which is located at 11 Maypop Lane in DeKalb County,

Georgia. [BHT. 4]. With the exception of Appellee Turk, the remaining

Appellees, as being part of NTG, usually congregated at this home. [BHT. 4].

Victim Williams and Appellee Brown exchanged words at the house, so Appellee

Brown directed Appellee Harrell and Appellee Shardow to fight and beat up victim

Williams, which they did. [BHT. 4-5 and 33-34]. Appellee Harrell and Appellee

Shardow took victim Williams’ shoes and purse during the fight. [BHT. 5 and 12].

After the fight and robbery, victim Williams was thrown out of the house. [BHT.

5-6]. Victim Camacho was present during the fight, but was not involved. [BHT.

6]. Victim Camacho left after the fight to be with victim Williams. [BHT. 6].

Victim Williams was angry and started yelling that she would have

someone handle the situation for her. [BHT. 6]. Because Appellee Brown did not

want rival gang members to know where their particular gang sect congregated, he

7 Hereinafter referred to as “BHT.” followed by the corresponding transcript pagenumber(s).

6

ordered that both victims must be killed. [MHT. 80] [BHT. 6-7]. Appellee Mason,

Appellee Jenkins, and Appellee Henderson then left the home on Maypop Lane to

find both victims, who had previously left on foot. [BHT. 7]. Appellee Mason,

Appellee Jenkins, and Appellee Henderson left in a silver BMW that was

previously taken by Appellee Mason and Appellee Henderson in a car hijacking.

[BHT. 8, 14, 21, and 29].

Both victims were found shot to death on the grounds of an apartment

complex located across the street from the home on Maypop Lane. [BHT. 10-12].

The gun used to murder the victims was stolen by Appellee Mason and Appellee

Turk in Douglas County, Georgia. [MHT. 93-95] [BHT. 11-12 and 17-18].

After the murders, Appellee Mason, Appellee Jenkins, and Appellee

Henderson returned to the home on Maypop Lane and discussed among themselves

and others the necessity of shooting the victims multiple times. [BHT. 14-15 and

29]. There are also text messages to that effect. [BHT. 15 and 23].

After the murders, the items taken from victim Williams in the robbery at

the home were discarded and destroyed by Appellee Harrell in order to cover up

the murder and the fact that both victims were previously at the home on Maypop

Lane. [BHT. 13].

Additional pertinent facts will be addressed as necessary in this brief.

7

BACKGROUND AND SUMMARY OF ARGUMENT

This case is about two murders committed by members of the “Blood” gang

in DeKalb County, Georgia, and the State’s right under Georgia law to use

evidence of unindicted criminal gang activity at trial in order to prove its case. The

specific set involved with the murders is known as the Nine Trey Gangsters

(hereinafter referred to as “NTG”). Appellee Brown, Appellee Mason, Appellee

Henderson, Appellee Jenkins, Appellee Harrell, and Appellee Shardow are

members of or associated with NTG. [BHT. 3-5, 8-9, 26, and 31].

The trial court erred in denying the State’s Motion. In denying the State’s

request to admit evidence of unindicted criminal gang activity, the trial court’s

order states in pertinent part that, “[t]he State was unable to provide the Court with

a single citation in support of its position that such evidence of crimes committed

by individuals not charged in the present case was admissible against these

Defendants.” [R. 314]. The trial court’s order also incorrectly states that, “such

evidence is not admissible under a plain reading of the O.C.G.A. § 24-4-404 (b).

As this evidence [the Virginia federal indictment and convictions] 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 its prejudice.” [R. 314].

Yet the State did reference O.C.G.A. § 16-15-9 which provides in pertinent

8

part that the commission of a crime of violence and/or RICO 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. [R. 257] [MHT. 108-109 and 117].

The trial court’s ruling that admission of the Virginia federal indictment and

convictions would constitute propensity evidence under O.C.G.A. § 24-4-404 (b),

also constituted error.

Evidentiary rulings are reviewed under an abuse of discretion standard. See

Smith v. State, 284 Ga. 304, 667 S.E.2d 65 (2008); State v. Brown, 333 Ga. App.

643 (2015).

As a response to prison gangs in New York City, the NTG was created as

one of the eight original Blood sets on the East Coast. Since its inception, NTG

has been one of the most active East Coast Blood gang sets. NTG has spread

across the eastern United States, and the FBI and numerous dedicated gang task

forces have undertaken a long-term investigation of NTG activities in Virginia and

neighboring states.

Although the specific gang structure and hierarchy vary by location, NTG

members are organized into “line-ups” or “Families.” The “High Stain” appoints a

“Lo Stain” who has generals ranking from four stars down to one star reporting to

him. “Soldiers” or “Scraps” are the lowest ranking members in the gang. NTG

9

often refer to themselves as “Billy Bad Ass.” The NTG set in question in this case

refers to its hierarchy by Floor Level. For example “5th Floor” would be the

highest ranking member of the NTG involved in this Indictment.

Blood gang and NTG members are heavily involved in street-level drug

sales. Members are known to carry firearms, and are willing to engage in violence

including murder to defend their drug territory or settle disputes. Members have

been involved or implicated in numerous shootouts and they openly display an

arsenal that includes handguns and assault rifles. Members routinely commit

residential burglaries usually targeting flat-screen televisions, high-end electronics,

and weapons. Members will also participate in pedestrian robberies, local business

robberies, and carjackings.

NTG can be identified by having the following symbols associated with their

person either as tattoos or on their clothing: Five-Point Star, Pyramid, Three-Dots,

Five Dots, Dog’s Paw, NTG, 9-3, and Billy Bad Ass. The Blood gang and NTG

sets also incorporate the terms “Flame” and “Billy” into street names and social

media names to exhibit their connection to their respective Blood gang and NTG

sets. In various localities, individuals both formally and informally adopt the

terminology, behavior, and general characteristics of Blood gangs and their sets.

Common characteristics of the Blood gang and NTG sets are the refusal to use the

letter “c” and the number “6,” as this letter and number are related to the rival

10

“Crips” street gang. Rather than use the letter “c” or the number “6,” Blood gang

and NTG sets replace either the letter or number with the letter “b.”

Because of the sometimes loose adoption of Blood gang ideals and

characteristics, 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.

11

ENUMERATION OF ERRORS

I. PURSUANT TO O.C.G.A. § 16-5-9, THE TRIAL COURT WASREQUIRED TO ADMIT THE FEDERAL INDICTMENT FORTHE PURPOSE OF ALLOWING THE STATE TO MEET ITSBURDEN OF PROOF IN SHOWING THE EXISTENCE OFTHE CRIMINAL STREET GANG AND CRIMINAL GANGACTIVITY

II. THE TRIAL COURT MISAPPLIED O.C.G.A. 24-4-404 (b) INDENYING THE STATE’S MOTION TO ADMIT EVIDENCEOF UNINDICTED CRIMINAL GANG ACTIVITY

ARGUMENT AND CITATION OF AUTHORITY

As the United States Supreme Court explained in Old Chief v. United States,

519 U.S. 172 (1997), the prosecution — the party with the burden of proof — has a

“need for evidentiary richness and narrative integrity in presenting a case.” Id. at

183. With the exception of Appellee Turk, the rest of the Appellees are charged

with violating the Act; the State has the burden of proving that these Appellees

violated the Act.

The Relevant Law

(1) "Criminal gang activity" means the commission, attemptedcommission, conspiracy to commit, or solicitation, coercion, orintimidation of another person to commit any of the followingoffenses on or after July 1, 2006:

(A) Any offense defined as racketeering activity by Code Section16-14-3;

. . . .

(J) Any criminal offense in the State of Georgia, any otherstate, or the United States that involves violence, possession ofa weapon, or use of a weapon, whether designated as a felonyor not, and regardless of the maximum sentence that could beimposed or actually was imposed.

(2) "Criminal street gang" means any organization, association, orgroup of three or more persons associated in fact, whether formal orinformal, which engages in criminal gang activity as defined inparagraph (1) of this Code section. The existence of suchorganization, association, or group of individuals associated in fact

13

may be established by evidence of a common name or commonidentifying signs, symbols, tattoos, graffiti, or attire or otherdistinguishing characteristics, including, but not limited to, commonactivities, customs, or behaviors. Such term shall not include three ormore persons, associated in fact, whether formal or informal, who arenot engaged in criminal gang activity.

O.C.G.A. § 16-15-3 (emphasis added).

(a) It shall be unlawful for any person employed by or associated with acriminal street gang to conduct or participate in criminal gang activitythrough the commission of any offense enumerated in paragraph (1) ofCode Section 16-15-3.

. . . .

O.C.G.A. § 16-15-4.

The commission of any offense enumerated in paragraph (1) of CodeSection 16-15-3 by any member or associate of a criminal street gangshall be admissible in any trial or proceeding for the purpose ofproving the existence of the criminal street gang and criminal gangactivity.

O.C.G.A. § 16-15-9 (emphasis added).

14

Argument

Pursuant to 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.

The fundamental rules of statutory construction require courts to construe a

statute according to its terms, to give words their plain and ordinary meaning, and

to avoid a construction that makes some language mere surplusage. Put another

way, when courts consider the meaning of a statute, they must (1) presume that the

General Assembly meant what it said and said what it meant, and (2) read the

statutory text in its most natural and reasonable way, as an ordinary speaker of the

English language would. See Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337

(2013).

A plain reading of O.C.G.A. § 16-15-9 required the trial court to admit the

thirteen count Virginia federal indictment and convictions of compatriot Blood

gang members. The trial court erred by ruling that, “[t]he State was unable to

provide the Court with a single citation in support of its position that such evidence

of crimes committed by individuals not charged in the present case was admissible

against these Defendants.” [R. 314].

15

Pursuant to O.C.G.A. §§ 16-15-3 and 16-15-4, the State is required to prove

that NTG is an organization, association, or group of three or more persons

associated in fact, whether formal or informal, which engages in criminal gang

activity. Moreover, the existence of such organization, association, or group of

individuals associated in fact may be established 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 activities,

customs, or behaviors. Such term shall not include three or more persons,

associated in fact, whether formal or informal, who are not engaged in criminal

gang activity.

In order to make this showing, the State seeks to introduce evidence of the

allegations in the Virginia federal indictment because the information in that

indictment is relevant and required to prove the essential elements of the indicted

offenses in the instant case. [R. 257, Exhibit #1].

Under the Virginia federal indictment, a separate set of Blood gang

defendants were convicted of R.I.C.O. charges and other crimes for acts committed

while each defendant was either a member of, or associated with one of the UBN

criminal street gang subsets known as the NTG Bloods. [R. 257, Exhibit #1]

[MHT. 101].

16

Indictment No. 1:13-CR-350 is an indictment that was returned in the United

States District Court for the Eastern District of Virginia (Alexandria Division) in

2013. The following chart is a representative sample of the charged and proven

federal offenses and under what Georgia law the federal offenses would be deemed

criminal gang activity:

Federal Offense Violation of Street Gang Terrorism and Prevention Act(O.C.G.A. § 16-15-3)

Count 1: R.I.C.O. (18USC § 1962(d))

Any offense defined as racketeering activity by Code Section 16-14-3

Count 2: Violent crimesin aid of racketeeringactivity (18 USC §1959(a)(2))

(J) Any criminal offense in the State of Georgia, any other state,or the United States that involves violence, possession of aweapon, or use of a weapon, whether designated as a felony ornot, and regardless of the maximum sentence that could beimposed or actually was imposed.

Count 3: Violent crimesin aid of racketeeringactivity (18 USC §1959(a)(3))


Count 4: Use of a firearmduring a crime ofviolence (18 USC §924(c)(1)(A))


Count 5: Conspiracy todistribute a controlledsubstance (21 USC §846)

(I) Any criminal offense committed in violation of the laws of theUnited States or its territories, dominions, or possessions, any ofthe several states, or any foreign nation which, if committed in thisstate, would be considered criminal gang activity under this Codesection

Count 6: Use of a firearmduring a crime of drugtrafficking (18 USC §924(c)(1)(A))


Count 7: Possession of afirearm after beingconvicted of a crimepunishable by

(I) Any criminal offense committed in violation of the laws of theUnited States or its territories, dominions, or possessions, any ofthe several states, or any foreign nation which, if committed in thisstate, would be considered criminal gang activity under this Code

17

imprisonment exceedingone year (18 USC §922(g))

section

Count 8: Use of a firearmduring a crime of drugtrafficking (18 USC §924(c)(1)(A))


Count 9: Conspiracy tocommit sex trafficking(18 USC § 1594(c))


Count 10: Interferencewith commerce byrobbery (18 USC § 1951)


Although Appellee Brown, Appellee Mason, Appellee Henderson, Appellee

Jenkins, Appellee Harrell, and Appellee Shardow are not directly connected to the

crimes committed by the NTG gang defendants in the Virginia federal indictment,

they specifically and intentionally adopted the vernacular, characteristics, structure,

and behaviors of the NTG Bloods; and as such, all of them were able to benefit

from the notoriety and infamous reputation of the NTG Bloods. "Criminal gang

activity" means the commission, attempted commission, conspiracy to commit, or

solicitation, coercion, or intimidation of another person to commit any criminal

offense in the State of Georgia, any other state, or the United States that

involves violence, possession of a weapon, or use of a weapon, whether

designated as a felony or not, and regardless of the maximum sentence that could

18

be imposed or actually was imposed. See O.C.G.A. § 16-15-3 (J) (emphasis

added). The similarities include, but are not limited to the following:

Evidence in 14-CR-3627-8 Facts Proven in Federal Indictment 1:13-CR-350

Use of some form of “Billy Bad Ass” ascode names (e.g.: billyfooflame93)

Use of some form of “Billy Bad Ass” as codenames

Use of term “floors” describe rank (e.g.: M.Brown has been designated as 5th floor intext messages between D. Mason and J.Harrell)

Use of term “floors” describe rank

Replacing letter “c” with the letter “b,” “k,”“x,” or the number “5” (e.g: “I balledOUTHER numbers bak”)

Replacing letter “c” with the letter “b”

Use of term “OG” to show respect withinthe gang (e.g.: Frank Rosenau is known as“Billy Gangster P Og”)

Use of term “OG” to show respect within thegang

Use of the term “MOB” to show gangaffiliation (e.g.: D. Mason has a tattoo of theletters “MOB”)

Use of the term “MOB” to show gang affiliation

Use of the numbers “1993” or “93” to showgang affiliation (e.g.: Both M. Brown andM. Jenkins have tattoos of the year “1993”and “93,” respectively)

Use of the numbers “1993” or “93” to show gangaffiliation

Use of the 5 pointed star to show gangaffiliation (e.g.: M. Brown, D. Mason, & M.Jenkins have tattoos of the 5 pointed star)

Use of the 5 pointed star to show gang affiliation

Use of hand signals to show gang affiliation(e.g.: Pictures located on cell phones andsocial media)

Use of hand signals to show gang affiliation

Wearing of the color red to symbolize gangaffiliation (e.g.: Pictures located on cellphones and social media)

Wearing of the color red to symbolize gangaffiliation

“30 Laws” that coincide with rules infederal indictment (e.g.: A notebook foundpursuant to a search warrant during thearrest of the Defendants at the incidentlocation contained the “30 laws”)

Use of 31 UBN Rules

Use of coded language called “Billy Talk”(e.g.: A notebook found pursuant to a searchwarrant during the arrest of the Defendantsat the incident location contained the codedlanguage called “Billy Talk”)

Use of coded language

19

The NTG Bloods is a nationally known gang with far-reaching ties to many

areas within the country including Georgia. It is one of the original gang sets of

the United Blood Nation (UBN). The aforementioned evidence from the Virginia

federal indictment is necessary to show the common identifying names, signs,

symbols, tattoos, and attire associated with the Blood gang. The Virginia federal

indictment also shows the common activities, customs, and behaviors between the

Appellees charged under the Act in the instant indictment and the Virginia federal

indictment. See In re X. W., 301 Ga. App. 625, 688 S.E.2d 646 (2010) (evidence

of symbols, tattoos, graffiti, attire, or other distinguishing characteristics may

establish the existence of a criminal street gang).

This Court has ruled that the commission of an enumerated offense by the

defendant is not itself sufficient to prove the existence of a criminal street gang.

See Rodriguez v. State, 284 Ga. 803, 671 S.E.2d 497 (2009). If it were sufficient,

the nonsensical result would be that a member of any legitimate group could

violate the Act merely by committing an enumerated offense. Id. at 808. See also

Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015). To prove a violation

of the Act, the State is required to show three things: (1) that the defendants, in

fact, are associated with a “criminal gang,” (2) that they committed a predicate act

of “criminal gang activity,” and (3) that the commission of the predicate act was

20

intended to further the interests of the “criminal gang.” See Rodriguez, supra, 284

Ga.at 806-807.

The trial court clearly abused its discretion in refusing to consider O.C.G.A.

§ 16-15-9, in its order. See United States v. Frazier, 387 F.3d 1244 (11th Cir.

2004) (an abuse of discretion arises when the district court's decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact). See also Williams v. State, 328 Ga. App. 876, 763

S.E.2d 261 (2014) (while the abuse-of-discretion standard presupposes a “range of

possible conclusions” that can be reached by a trial court with regard to a particular

evidentiary issue, it does not permit a “clear error of judgment” or the application

of “the wrong legal standard”).

Accordingly, this Court should reverse the trial court’s order.

21

III. THE TRIAL COURT MISAPPLIED O.C.G.A. 24-4-404 (b)IN DENYING THE STATE’S MOTION TO ADMITEVIDENCE OF UNINDICTED CRIMINAL GANGACTIVITY

The Relevant Law

As used in this chapter, the term "relevant evidence" means evidencehaving any tendency to make the existence of any fact that is ofconsequence to the determination of the action more probable or lessprobable than it would be without the evidence.

O.C.G.A. § 24-4-401.

All relevant evidence shall be admissible, except as limited byconstitutional requirements or as otherwise provided by law or byother rules, as prescribed pursuant to constitutional or statutoryauthority, applicable in the court in which the matter is pending.Evidence which is not relevant shall not be admissible.

O.C.G.A. § 24-4-402.

Relevant evidence may be excluded if its probative value issubstantially outweighed by the danger of unfair prejudice, confusionof the issues, or misleading the jury or by considerations of unduedelay, waste of time, or needless presentation of cumulative evidence.

O.C.G.A. § 24-4-403.

(a) Evidence of a person's character or a trait of character shall not beadmissible for the purpose of proving action in conformity therewithon a particular occasion, except for:

22

. . . .

(b)Evidence of other crimes, wrongs, or acts shall not be admissible toprove the character of a person in order to show action in conformitytherewith. It may, however, be admissible for other purposes,including, but not limited to, proof of motive, opportunity, intent,preparation, plan, knowledge, identity, or absence of mistake oraccident. The prosecution in a criminal proceeding shall providereasonable notice to the defense in advance of trial, unless pretrialnotice is excused by the court upon good cause shown, of the generalnature of any such evidence it intends to introduce at trial. Noticeshall not be required when the evidence of prior crimes, wrongs, oracts is offered to prove the circumstances immediately surroundingthe charged crime, motive, or prior difficulties between the accusedand the alleged victim.

O.C. G.A. § 24-4-404 (emphasis added).

Argument

The trial court’s order indicates that “such evidence is not admissible under

a plain reading of the O.C.G.A. § 24-4-404 (b). As this evidence [the Virginia

federal indictment and convictions] 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 its prejudice.” [R. 314].

The trial court’s order does not go into further detail about how it reached this

result, but a careful reading and review of the hearing transcript shows that the trial

court considered the federal indictment and convictions only to be inadmissible as

propensity evidence. [MHT. 129]. The trial court’s O.C.G.A. § 24-4-404 (b)

23

analysis was incorrect because the State also argued in the alternative that the

Virginia federal indictment and convictions were admissible as evidence that fell

outside the scope of O.C.G.A. § 24-4-404 (b). [R. 63-65] [MHT. 116-117].

Evidence of uncharged criminal activity is not considered other crimes

evidence under Rule 404 (b) if it arose out of the same transaction or series of

transactions as the charged offense, if it is inextricably intertwined with the

evidence regarding the charged offense, or if it is necessary to complete the story

of the crime on trial. See United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir.

2007). See also e.g. United States v. Carboni, 204 F.3d 39 (2d Cir. 2000) (in

addition to establishing the existence and nature of a racketeering enterprise,

uncharged acts are also admissible as evidence that is inextricably intertwined with

proof of the enterprise, or proof of other crimes charged in the indictment). The

Virginia federal indictment and convictions are inextricably intertwined with the

case in bar because they provide background (history, nature, and structure) for the

instant indicted offenses and because they establish the existence and nature of

participation in gang activity by the Appellees charged under the Act in the instant

indictment. [MHT. 113]. See e.g. United States v. Basciano, 599 F.3d 184 (2d

Cir. 2010) (a single pattern of racketeering may be common to a number of

defendants and, in such circumstances, even though individual defendants "may

reasonably claim no direct participation" in the acts of others, "evidence of those

24

acts is relevant to the RICO charges against each defendant." Specifically, the

"various criminal activities" of racketeering confederates are admissible against

each defendant "to prove: (i) the existence and nature of the RICO enterprise and

(ii) a pattern of racketeering activity on the part of each defendant by providing the

requisite relationship and continuity of illegal activities).

In United States v. Matera, 489 F.3d 115 (2d Cir. 2007), the Government

introduced evidence of various crimes committed by Gambino Family members,

including the participation of John Gotti in the murders of several victims. The

defendants contended that the receipt of this evidence violated Federal Rules of

Evidence (“FRE”) 404 (b) and 403. However, the district court correctly ruled that

this evidence did not violate FRE 404 (b). The evidence was not offered to show

any character trait of the defendants or that the defendants acted in accordance with

such a trait. It was only offered to prove an essential element of the RICO crimes

charged — the existence of a criminal enterprise in which the defendants

participated. The Second Circuit’s conclusion that there was no violation of FRE

404(b) was consistent with numerous prior rulings it had made concerning criminal

acts of non-defendants, including killings, and received to prove the existence of

the criminal RICO enterprise in which the defendants participated. See e.g. United

States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997) (uncharged acts admissible to

prove the existence of the RICO enterprise alleged in the indictment); United

25

States v. Thai, 29 F.3d 785, 812-13 (2d Cir. 1994) (uncharged acts admissible as

evidence of "the existence and structure of the [RICO] enterprise itself").

When a 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.

Nonetheless, the evidence may be of important probative value in proving the

enterprise. See United States v. Coonan, 938 F.2d 1553 (2d Cir. 1991).

The plain meaning of O.C.G.A. § 24-4-403's text makes clear that the trial

court may only exclude relevant evidence when its probative value is substantially

outweighed by one of the designated concerns. FRE 403 has been described as an

extraordinary remedy which the courts should invoke sparingly, and the balance

should be struck in favor of admissibility. See United States v. Lopez, 649 F.3d

1222 (11th Cir. 2011). The reason for such caution is that relevant evidence in a

criminal trial is inherently prejudicial, and, as a result, FRE 403 permits exclusion

only when unfair prejudice substantially outweighs probative value. The primary

function of FRE 403, then, is to exclude evidence of scant or cumulative probative

force, dragged in by the heels for the sake of its prejudicial effect. See Williams,

supra, 328 Ga. at 876. The admission of the Virginia federal indictment and

convictions is relevant evidence that is needed by the State to prove the

requirements of O.C.G.A. §§ 16-15-1 et seq. The trial court erred in ruling

26

otherwise. Furthermore, the Virginia federal indictment and convictions do not

involve conduct more inflammatory than the instant charged crimes See United

States v. Livotti, 196 F.3d 322 (2nd Cir. 1999).

27

CONCLUSION

For all of the reasons advanced and supported by law above, the State urges

this Court to reverse the trial court’s order and remand the case back to the trial

court.

Respectfully submitted this the 20th day of October, 2015.

ROBERT D. JAMESDISTRICT ATTORNEYSTONE MOUNTAIN JUDICIAL CIRCUITSTATE BAR NO. 389148

By: s:/ Lenny KrickLenny KrickAssistant District AttorneyStone Mountain Judicial CircuitState Bar No. 429711

DeKalb County District Attorney’s Office556 N. McDonough Street, Suite 700Decatur, GA 30030(404) 371-3202

28

CERTIFICATE OF SERVICE

This is to certify that I have this day served the within and foregoing upon

counsel of record, for each Appellee, by mailing a copy of same, postage prepaid,

to:

Morris P. Fair, Jr. Attorney for:MalcolmBrown

THE LAW OFFICE OFMORRIS P. FAIR, JR.,PC4262 Clausell CourtSuites C & DDecatur, Georgia 30035

Andre Murray Johnson Attorney for:FranklandHenderson

LAW OFFICE OFANDRE JOHNSON,LLC315 West Ponce deLeon Avenue Suite 915Decatur, Georgia 30030

Darrell B. Reynolds, Sr. Attorney for:Traon Turk

DARRELL B.REYNOLDS, ESQ.2385 LawrencevilleHighway, Suite DDecatur, Georgia 30033

Melaney CyriseLaGrone

Attorney for:KatrinaShardow

MELANEY C.LaGRONE, ESQ.P.O. Box 725124Atlanta, Georgia 31139

29

Gina Bernard Attorney for:JaimeeHarrell

GEORGIA PUBLICDEFENDERCOUNCIL-STONEMOUNTAIN CIRCUIT120 W. Trinity PlaceSuite 310Decatur, Georgia 30030

Daryl Warren Queen Attorney for:DemetreMason

LAW OFFICE OFDEKALB COUNTYPUBLIC DEFENDER320 Church StreetDecatur, Georgia 30030

Gerald Ashland Griggs Attorney for:MichaelJenkins

GERALD A. GRIGGS,LLC1550 Scott BoulevardDecatur, Georgia 30033

This 20th day of October, 2015.

By: s:/ Lenny KrickLenny KrickAssistant District AttorneyStone Mountain Judicial CircuitState Bar No. 429711

DeKalb County District Attorney’s Office556 N. McDonough Street, Suite 700Decatur, GA 30030(404) 371-3202

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