State v. Brown ( 2016 )

In the Supreme Court of Georgia
Decided: April 26, 2016
S16A0122. THE STATE v. BROWN et al.
HUNSTEIN, Justice.
In this pre-trial appeal pursuant to OCGA § 5-7-1 (a) (5), the State seeks
reversal of the trial court’s order determining that a federal indictment involving
parties unrelated to Appellees will be inadmissible at Appellees’ trial. We find
no abuse of discretion, and we therefore affirm.
In August 2014, a DeKalb County grand jury returned a 21-count
indictment against Appellees Malcolm Brown, Demetre Edward Mason,
Frankland Henderson, Michael Hasker Jenkins, Jaimee E. Harrell, Katrina A.
Shardow, and Traon Joshua Turk, on charges of murder, armed robbery, robbery
by force, car-jacking, and numerous violations of the Street Gang Terrorism and
Prevention Act, OCGA §§ 16-15-1 et seq., and Georgia RICO (Racketeer
Influenced and Corrupt Organizations) Act, OCGA §§ 16-14-1 et seq. This
indictment alleges that Appellees are members of a particular “set” of the United
Blood Nation criminal street gang known as the “Nine Trey Gangsters” or
“NTG Bloods,” who, during April and May 2014, committed a series of crimes
and engaged in racketeering activities. During pre-trial proceedings, the State
filed a motion seeking a ruling on the admissibility of a 13-count federal
indictment charging unrelated defendants with crimes and racketeering activities
in association with an NTG Bloods set operating in Virginia. The State
contends that information in the federal indictment is “required” to prove certain
essential elements of the alleged violations of Georgia’s street gang act,
specifically, the existence of a “criminal street gang” and the commission of
“criminal gang activity,” as those terms are defined in the statute. See OCGA
§ 16-15-3.1 In the alternative, the State contends that the indictment is
admissible under OCGA § 24-4-404 (b) to prove motive. The trial court denied
the State’s motion.
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In particular, the State argues that various offenses charged in the federal
indictment – on which the defendants there were ultimately convicted – constitute
“criminal gang activity” under the Georgia statute and that evidence of such activity
by other members of the NTG Bloods constitutes proof of the existence of a “criminal
street gang,” which is required to show a violation of the statute. See OCGA § 16-15-
4. In addition, while acknowledging that Appellees “are not directly connected” with
the Virginia defendants, the State maintains that the federal indictment provides proof
of “the vernacular, characteristics, structure, and behaviors” of the NTG Bloods and
thereby would help establish that Appellees, who allegedly have adopted these same
customs and behaviors, are associated with this gang.
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We agree with the trial court that the federal indictment is inadmissible.
An indictment is simply a “formal written accusation of a crime,” Black’s Law
Dictionary, 891 (10th ed. 2014), and the assertions therein are nothing more than
hearsay statements by the prosecutor bringing the charges. See OCGA § 24-8-
801 (c) (defining “hearsay”). As mere hearsay, a bare indictment is simply not
admissible evidence. OCGA §§ 24-4-402, 24-8-802.2 See also Thomason v.
State, 281 Ga. 429, 431 (8) (637 SE2d 639) (2006) (noting that “the indictment
does not constitute any evidence of [the defendant’s] guilt”); Hicks v. State, 315
Ga. App. 779, 785 (4) (728 SE2d 294) (2012) (noting that “the allegations of the
indictment did not constitute evidence”).
The fact that this case involves alleged violations of the Georgia street
gang act does not alter this result. It is true, as the State argues, that the statute
expressly provides that evidence of crimes committed “by any member or
2
The State does not argue, nor could it, that a bare indictment falls within any
of the hearsay exceptions enumerated in OCGA § 24-8-803. Even if the State were
seeking here to offer the actual judgment of conviction entered on the charges in the
federal indictment, such judgment would not qualify under any hearsay exception
because it is a judgment against persons other than those accused in this case. See id.
at (22) (hearsay exception for judgments of conviction does not apply to judgments,
offered by the State in a criminal prosecution, “against persons other than the
accused”).
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associate of a criminal street gang shall be admissible . . . for the purpose of
proving the existence of the criminal street gang and criminal gang activity.”
OCGA § 16-15-9. This provision, however, does no more than clarify the
nature of the evidence that will be deemed relevant in establishing specific
elements of the crimes proscribed by the statute and, contrary to the State’s
apparent assumption, does not purport to supersede or dispense with the
generally applicable rules of evidence, including the prohibition on hearsay. In
short, the fact that this case involves the prosecution of alleged gang-related
crimes does not obviate the State’s responsibility to prove its case in accordance
with the rules of evidence applicable in all other prosecutions.
Accordingly, the trial court properly denied the State’s motion, and we
affirm.
Judgment affirmed. All the Justices concur.
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