Randolph v. the State , 334 Ga. App. 475 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 13, 2015
In the Court of Appeals of Georgia
A15A1024. RANDOLPH v. THE STATE.
BRANCH, Judge.
Based on his sworn testimony during a prior murder trial, a jury found Davan
Randolph guilty of distributing marijuana, conspiring to distribute marijuana, and
violating the Georgia Street Gang Terrorism and Prevention Act. Randolph appeals,
arguing that his prosecution was barred by procedural double jeopardy, the state
engaged in selective prosecution, venue was not proven, and there was insufficient
evidence of the gang crime. We affirm the drug convictions, but reverse the gang
activity conviction.
Viewed in a light favorable to the verdict,1 the record shows that on August 29,
2006, a Camden County residence burned down and authorities discovered the body
1
See Falay v. State, 320 Ga. App. 781, 781 (740 SE2d 738) (2013).
of Michael Ryan Foley, who had lived there with several roommates, in the remains.
Foley had been shot to death before the fire. Special Agent Richard Dial of the
Georgia Bureau of Investigation, the lead investigator on the case, soon learned that
Foley was a marijuana seller who had scheduled a drug deal for the morning of
August 29. Dial and other agents tried “to find out who the deal was with and track
that because those are the last people we believe had been present with [Foley] prior
to his death.”
Dial interviewed two of Foley’s roommates, Josh Bordelon and Richard Allen
Wessinger, and prepared summary reports that he later turned over to the prosecutor.
Bordelon told Dial that on August 28, the night before the fire, Foley had said that a
former neighbor, along with two of the neighbor’s friends, wanted to buy a pound of
marijuana and were planning to come over on the morning of August 29 to complete
the transaction. According to Bordelon, the prospective buyers wished to sample the
marijuana first, so Foley rode around in their car and smoked a “blunt” with them the
night of August 28. Foley reportedly told Bordelon that he was uneasy about the
pending deal because “the buyers wished to pay more than the going rate for the
marijuana.”
2
Wessinger gave a similar account. He told Dial that upon arriving home on the
night of August 28, he saw a car with two black males inside pulling out of the
driveway.2 Wessinger said that Foley was standing in the driveway as the car was
backing out and that Foley later told him that the men wanted to buy a pound of
marijuana from him. According to Wessinger, Foley said that “he did not know the
boys but knew one of the boy’s brother.” Foley’s girlfriend also told Dial that Foley
had told her he “didn’t really know” the people involved in the pending deal.
Through further investigation, Dial identified Randolph as the former neighbor
and “brother” to whom Bordelon and Wessinger had referred. Inside Randolph’s car,
authorities found a slip of paper with Foley’s cell phone number written on it. Foley’s
cell phone records showed that he had received multiple calls on August 28 from the
residences of two of Randolph’s girlfriends. Several people told Dial that they had
seen Foley sell small amounts of marijuana to Randolph in the past.
Randolph was arrested and charged with murder, armed robbery, arson, and
gun possession. He was not charged with any drug or gang-related crimes. After the
arrest, Dial took pictures of Randolph’s chest, which bore several tattoos
2
Wessinger later testified that he did not know who was in the car.
3
characteristic of the Folk Nation gang. Randolph – who was then in his thirties – told
Dial that he had gotten the tattoos a long time ago.
Randolph testified at trial in his own defense. He said that he had met Foley 11
months before his death, smoked marijuana with him, and regularly bought small
amounts of the drug from him for personal use. Randolph said that he had introduced
other people – some of whom he knew and some of whom he did not know – to Foley
as potential customers. Randolph explained that he had also helped Foley deliver
marijuana: “[I]f I had friends that wanted some and I was already, going to get some
and me and a friend of mine were planning to get together or something I would . .
. go ahead and get theirs and take it to them.” Finally, Randolph testified that Foley
would bring his marijuana and scales to Randolph’s girlfriend’s house, where he and
Foley “would weigh it up and we would put it in bags.” According to Randolph,
Foley would repay him for this assistance with approximately $25 worth of
marijuana.
Randolph testified that he used to belong to the Folk Nation gang and that he
had introduced Foley to some fellow gang members, or “brothers,” who then bought
marijuana from him. Randolph said that these people – not him – were the ones who
arranged to buy a large quantity of marijuana from Foley, met with him on the night
4
of August 28, and killed him and burned the house the next day. Randolph, however,
refused to name the men. When asked the reason for his silence, he responded, “Did
you see what they did to [Foley]? Do you think I’m going to let them do that to me
and my family? Do you think I’m going to call these people’s names?” The jury found
Randolph not guilty of all charges.
The state then brought a new indictment against Randolph charging him with
four crimes based on his testimony in the first trial: (1) conspiracy to distribute
marijuana, in that he had “put Ryan Foley in contact with other persons . . . for the
purpose of distributing marijuana”; (2) conspiracy to distribute marijuana, in that he
had weighed and packaged marijuana for the purpose of distribution; (3) distribution
of marijuana, party to a crime, in that he had aided and abetted Foley by packaging
marijuana for distribution and contacting purchasers; and (4) violation of the Georgia
Street Gang Terrorism and Prevention Act, in that he had been associated with a gang
and participated in gang activity by distributing marijuana. Randolph moved to
dismiss the indictment on the ground that it violated the procedural double jeopardy
protections in OCGA § 16-1-7 (b), which prohibits multiple prosecutions arising from
the same conduct. The trial court denied the motion. Randolph also moved to dismiss
5
on the ground that he was the victim of selective prosecution in retaliation for his
acquittal in the first trial, but the trial court apparently denied this motion as well.
The case proceeded to trial, and the state called two witnesses – Dial and the
assistant district attorney who had prosecuted the first case. Dial testified that
Randolph was not charged with any drug distribution crimes in his first trial because
at that point, “all we had information was that Davan Randolph had purchased small
amounts of marijuana.” It was not until Randolph took the stand during the first trial
that Dial learned that he had “been more involved in Ryan Foley’s marijuana deals”
and had introduced prospective customers – including gang members – to Foley. Dial
further testified that Randolph was not charged with any gang crimes in his first trial
because Dial “didn’t have any knowledge that he was using gang affiliation to
distribute drugs until he testified during the first trial.”
The assistant district attorney who prosecuted the first case likewise testified
that no drug or gang charges had been brought against Randolph at that time because
he had no information to support such charges. The assistant district attorney also
stated that the first time he learned that Randolph had introduced buyers to Foley,
packaged marijuana for distribution, and actively associated with gang members was
6
when Randolph testified at the first trial. Excerpts from Randolph’s testimony at the
first trial were read aloud to the jury.
Randolph again took the stand in his own defense. He testified that he had
joined the Folk Nation gang for self-protection years ago while he was in prison in
Tennessee, but was no longer an active gang participant. Randolph moved to Georgia
in 2005, lived with relatives, and worked a variety of jobs. He testified that one day
he was playing basketball and wearing a tank top that revealed his tattoos when some
men recognized the tattoos, approached him, identified themselves as members of
Folk Nation, and asked if Randolph was also affiliated with the gang. Randolph said
that he told the men he was “retired.” Randolph encountered the men again later, and
they asked him, “[Y]ou know anybody who got some bud because we can’t find any.”
At that point – two months before Foley’s murder – Randolph arranged a meeting
between Foley and the men. Randolph claimed that he did not know the men well and
did not regularly associate with them. Randolph also claimed that he believed the men
were “just weed smokers just like me” who wanted small quantities of marijuana for
personal use; “they weren’t buying for the gang.” According to Randolph, the men
“just happened to be gang members. But this wasn’t like you’re buying five or ten
pounds for the gang . . . to make money off of it. . . . [T]his wasn’t a gang issue.”
7
After the close of the evidence, the trial court instructed the jury that Randolph
had raised a double jeopardy defense, that his prosecution would be barred if the
crimes charged in the second indictment were known to the proper prosecuting
authority at the commencement of the first trial, and that the jury had to decide “what
facts the prosecutor knew” at that time. The jury was given a special verdict form
asking if “any or all o[f] this prosecution is barred by Double Jeopardy.” After
deliberating, the jury answered the question in the negative and found Randolph
guilty on all four counts. For the purpose of sentencing, the trial court merged counts
one and two with count three and sentenced Randolph to ten years on the drug crimes
and fifteen years on the gang crime, to run consecutively. Randolph filed a motion for
new trial, which the court denied. This timely appeal followed.
1. Randolph contends that the trial court erred by denying his motion to dismiss
the indictment on procedural double jeopardy grounds. “The procedural aspect of the
double jeopardy rule prohibits multiple prosecutions arising from the same conduct.”
White v. State, 284 Ga. App. 805, 806 (644 SE2d 903) (2007) (citation and
punctuation omitted). OCCGA § 16-1-7 (b) requires the state to prosecute crimes in
a single prosecution “[i]f the several crimes arising from the same conduct are known
to the proper prosecuting officer at the time of commencing the prosecution and are
8
within the jurisdiction of a single court.” “A second prosecution is barred under
OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first
prosecution under OCGA § 16-1-7 (b).” Nicely v. State, 305 Ga. App. 387, 388 (1)
(699 SE2d 774) (2010) (citation and punctuation omitted). Randolph argues that his
second prosecution is barred because the state was aware of his marijuana distribution
and gang crimes before the first trial.
To prevail upon his motion to dismiss, Randolph bore the burden of showing
that the prosecutor had actual knowledge before the first prosecution of the facts
supporting the charges in the second prosecution. Id.; see also Billups v. State, 228
Ga. App. 804, 807 (1) (b) (493 SE2d 8) (1997) (“The prosecutor’s knowledge of all
the facts determines whether a single prosecution is required.”) (emphasis in
original). The trial court concluded that what the prosecutor knew before the first trial
was a question of fact that should be resolved by the jury rather than by the court as
a matter of law. See Daniels v. State, 78 Ga. 98, 103 (2) (1886) (fact questions related
to applicability of double jeopardy defense “would have to be submitted to the jury”);
Harris v. State, 193 Ga. 109, 117 (17 SE2d 573) (1941); compare Bell v. State, 249
Ga. 644, 645 (1) (292 SE2d 402) (1982) (“No question of fact was at issue in this
special plea in bar [asserting double jeopardy], so it was unnecessary to have a jury
9
hear the plea.”). Randolph has failed to show that he was entitled to judgment as a
matter of law on his double jeopardy defense.
At the second trial, the state presented evidence that before the first trial, the
only information it had about Randolph’s involvement in marijuana distribution was
witness statements that he had previously bought small quantities of marijuana from
Foley and had arranged, along with two other men, to buy a pound of marijuana from
Foley on the morning of the murder.3 These witness statements did not demand a
finding, as a matter of law, that the prosecutor had actual knowledge that Randolph
had committed the crimes of conspiring to distribute marijuana and distributing
marijuana. With regard to the gang crime, there was evidence that the state knew only
that Randolph had joined a gang years before, not that he was currently involved in
drug-related gang activity. Under these circumstances, the trial court did not err by
3
In his appellate brief, Randolph also refers to a statement that Dial took
during the murder investigation from a Mr. Griffith or Griffin, who supposedly
implicated Randolph in marijuana distribution. Randolph provides no citation to the
statement, and it does not appear to be part of the appellate record. Therefore, we are
unable to consider it. See Parker v. State, 283 Ga. App. 714, 717 (2) (d) (642 SE2d
111) (2007) (“factual assertions in briefs that are unsupported by the record cannot
be considered in the appellate process”) (citation and punctuation omitted).
10
denying Randolph’s motion to dismiss on double jeopardy grounds.4
2. Randolph argues that the trial court erred by denying his motion to dismiss
based on selective prosecution because he was “the only one prosecuted for a drug
offense after the murder trial of Ryan Foley” even though the evidence at the first trial
showed that many other witnesses had committed drug crimes. Even assuming these
factual assertions are accurate,5 Randolph failed to establish a claim of selective
prosecution.
A defendant has the burden of proving, by the weight of the evidence,
that his prosecution represents an intentional or purposeful
discrimination which is deliberately based upon an unjustifiable
standard, such as race, religion, or other arbitrary classification. A
4
Although the state does not raise this argument on appeal, we question
whether the drug charges in the second indictment arose from the same conduct as the
charges in the first indictment. In determining whether multiple offenses arose from
the same conduct, courts should consider whether they involved the “same parties,
circumstances, locations, and times.” Morgan v. State, 220 Ga. App. 198, 199 (469
SE2d 340) (1996) (citation and punctuation omitted). The drug activity to which
Randolph admitted at the first trial, and which formed the basis for the second
indictment, predated the planned one-pound drug deal between Foley and the people
who killed him and involved different people and different quantities of marijuana
in different locations.
5
The record in this appeal does not contain the transcript from the first trial,
and Randolph has cited no evidence to substantiate his assertion that no one else was
prosecuted for drug crimes.
11
showing that others were not prosecuted for doing what the defendant
allegedly did is not, in itself, sufficient to establish selective prosecution.
Mooney v. State, 266 Ga. App. 587, 588 (1) (597 SE2d 589) (2004) (citations and
punctuation omitted). Randolph has neither alleged nor shown that he was singled out
on the basis of any arbitrary classification. Thus, the trial court did not err by denying
his motion.
3. Randolph asserts that the state failed to prove venue in Camden County
because there was no testimony to establish the location of the store where he
introduced Foley to the other gang members. This claim of error lacks merit, as Dial
testified that the store was in Camden County.
4. Randolph maintains that there was insufficient evidence to support his
conviction for violating the Georgia Street Gang Terrorism and Prevention Act,
OCGA § 16-15-1 et seq. Because the state failed to present evidence that Randolph’s
marijuana distribution crimes were intended to further the interests of the gang, we
agree.
The Georgia Street Gang Terrorism and Prevention Act prohibits a person
associated with a criminal street gang from participating in criminal street gang
activity through the commission of a number of listed offenses. OCGA § 16-15-4 (a).
12
“Criminal street gang” is defined as “any . . . group of three or more persons
associated in fact, whether formal or informal, which engages in criminal gang
activity[.]” OCGA § 16-15-3 (2). “Criminal gang activity,” in turn, is defined as “the
commission, attempted commission, conspiracy to commit, or solicitation, coercion,
or intimidation of another person to commit” any of a number of offenses, including
“racketeering activity.” OCGA § 16-15-3 (1) (A). “Racketeering activity” includes
violations of the Georgia Controlled Substances Act. OCGA § 16-14-3 (5) (A)
(xxxiv). It is not enough, however, for the state simply to show that the defendant and
other gang members committed a criminal act; rather, “there must be some nexus
between the act and an intent to further street gang activity.” Rodriguez v. State, 284
Ga. 803, 807 (1) (671 SE2d 497) (2009); see also Jones v. State, 292 Ga. 656, 659 (1)
(b) (740 SE2d 590) (2913) (state must prove that “the commission of the predicate
act was intended to further the interests of the [gang]”).
Thus far, we have uniformly rebuffed challenges that there was insufficient
evidence of the requisite nexus between the crime and an intent to further gang
interests. Our case law has supplied no test, guidelines, or list of factors relevant to
determining whether the commission of a predicate crime was meant to “further the
interests of the gang,” Jones, 292 Ga. at 659; rather, we have simply analyzed the
13
evidence in each particular case and found it to be sufficient. And in each case, the
state has shown something more than the mere commission of a crime by gang
members.
In Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733) (2015), for example, we
rejected the gang-member defendant’s argument that the state failed to prove that the
fight that formed the basis of the criminal charges against him was undertaken to
further the gang’s interest. We noted that the victim was a former member of a rival
gang who had recently rejected the defendant’s overture to “hang out” and that
immediately before the fight broke out, the defendant “started arguing about gang-
related stuff.” Id. at 42 (2) (b). We held that this evidence authorized the jury to find
a nexus between the defendant[‘s] actions in seeking out and beating up
the victim and [his] intent to further gang activity by ensuring that the
gang responded strongly to the victim’s disrepect of a gang member’s
offer of association.
Id. at 43 (2) (b).
Similarly, in Alston v. State, 329 Ga. App. 44, 46-47 (1) (763 SE2d 504)
(2014), we held that evidence that the defendant and two fellow gang members wore
gang colors to “represent” and talked about their gang affiliation moments before
committing an armed robbery was sufficient to demonstrate a nexus between the
14
crime and an intent to further gang activity. In addition, the state presented evidence
that after the crime, one defendant wrote a letter acknowledging that he had violated
gang rules by implicating his fellow gang members in the crime, and there was expert
testimony that “the gang’s reputation is furthered by committing highly visible crimes
in a manner which allows the witnesses and the victims to discern that a particular
gang committed the crime.” See also Morey v. State, 312 Ga. App. 678, 686 (2) (b)
(719 SE2d 504) (2011) (affirming conviction under OCGA § 16-15-4 where there
was testimony that defendant was “repping his gang” while committing crimes); In
the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d 683) (2011) (nexus
between crime and gang activity was shown by evidence that defendant and other
gang members shot two people while wearing black bandannas over their faces,
which “proclaims to the world that they are a [gang] member and that this is a gang
act”) (punctuation omitted).
Here, the state’s case against Randolph rested almost entirely on his sworn
testimony in the first trial, which was read aloud to the jury. That former testimony
showed that Randolph, who was a member of Folk Nation, had introduced Foley, who
was not affiliated with a gang, to a variety of other people – some gang-affiliated and
some not – and had helped Foley distribute small amounts of marijuana to those
15
people. Thus, while the state may have shown that Randolph intended, by distributing
marijuana, to further the interests of individual gang members in obtaining small
quantities of marijuana for personal use, the state did not show that Randolph meant
to further the interests of Folk Nation as an entity. There was no evidence, for
example, that Randolph wore gang colors or accessories, talked about his gang
affiliation, or otherwise “represented” the gang while he was committing drug crimes.
Nor was there any evidence that Randolph’s distribution of personal-use amounts of
marijuana to individual gang members benefitted the gang itself through monetary
profit, enhanced reputation, or other means. Because the state failed to present
evidence of the necessary nexus between Randolph’s drug crimes and an intent to
further gang interests, his conviction under the Georgia Street Gang Terrorism and
Prevention Act must be reversed.
5. Randolph maintains that the trial court erred by failing to merge his sentence
for the drug crimes with his sentence on the gang crime. In light of our ruling in
Division 4, we need not reach this issue.
Judgment affirmed in part and reversed in part. Andrews, P. J., and Miller, J.,
concur.
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