CopyCited 124 times | Published | Supreme Court of Georgia | Nov 21, 2016 | 794 S.E.2d 67
...To the extent that Lupoe argues that in a separate trial, the evidence of the gang activities of his two co-defendants would not be admissible against him, that is incorrect. See Zamudio v. State,
332 Ga. App. 37, 44 (771 SE2d 733) (2015) (rejecting a similar contention on the ground that OCGA §
16-15-9 provides that “(t)he commission of any offense enumerated in [OCGA §
16-15-3 (1)] 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 crimin...
...nization, association, or group of three or more persons associated in fact” that engages in “criminal gang activity,” which means the commission of any of the offenses enumerated in OCGA §
16-15-3 (1). See OCGA §
16-15-4 (a). Moreover, OCGA §
16-15-9 says that “[f]or the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in [OCGA §
16-15-3 (1)] by any member or associate of a cr...
...State,
296 Ga. 181, 184 (766 SE2d 45) (2014) (citation omitted). Here, Williams has not shown that his counsel’s decision not to object to this testimony was unreasonable, particularly given the general admissibility of this type of evidence, see OCGA §
16-15-9....
...The issue is therefore reviewable only for plain error. See OCGA §
24-1-103 (d). Because the evidence of Lupoe’s and Williams’s gang affiliations and activities was relevant to the gang-related counts of the indictment, see Zamudio,
332 Ga. App. at 44; OCGA §§
16-15-3 (2);
16-15-9, and the trial court gave an appropriate limiting instruction regarding this evidence, see Division 3 above, the trial court did not abuse its discretion in admitting that evidence. There was therefore no error, plain or otherwise. To the extent that Carter contends that OCGA §§
16-15-3 (2) or
16-15-9 violates due process as applied to him, he did not raise this constitutional claim at trial, and it is therefore not preserved for appeal....
...denying the motion. In particular, to the extent that Carter argues that in a separate trial, the evidence of the gang activities of his two co-defendants would not be admissible against him, that is incorrect. See Zamudio,
332 Ga. App. at 44; OCGA §
16-15-9....
CopyCited 43 times | Published | Supreme Court of Georgia | Mar 5, 2018
...rship cards, but
nothing of significant value) and in the theft of an all-terrain vehicle. Finally, the
State introduced evidence that Anthony was involved in a shoplifting incident.
The trial court admitted all of this evidence under former OCGA §
16-15-9,
which — at the time of Anthony’s trial — provided that
the commission of any offense enumerated in paragraph (1) of Code
Section
16-15-3 [including theft as a “racketeering activity” and any
offense invo...
...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.16
16
We note that this Court recently held OCGA §
16-15-9 to be unconstitutional to the
extent that it permits evidence that third-party gang members have committed any of the
enumerated offenses “to be used as proof against other individuals in any proceeding in
which those other individuals a...
...See Lupoe v. State,
300 Ga. 233, 245 (8) (794
SE2d 67) (2016). But, again, there was no error, much less plain error. Anthony
was charged with violating the Street Gang Act, so evidence of his participation
in gang activities — as provided in former OCGA §
16-15-9 — was direct
evidence of an essential part of several of the offenses with which he was
charged....
...The
State showed that Strozier pled guilty to a 2013 battery, that he was involved
with the theft of a vehicle in 2012, and that he pled guilty to disorderly conduct
in 2012. On appeal, Strozier claims that the State failed to show that evidence
of these crimes was admissible under former OCGA §
16-15-9....
...See OCGA
26
§
24-1-103; see also Lupoe,
300 Ga. at 245 (8). As with the similar claim made
on appeal by Anthony, discussed in Division 8, Strozier has not established
error, much less plain error. At the time of his trial, OCGA §
16-15-9 explicitly
provided for the admission of evidence that the defendant had committed crimes
involving violence or racketeering (including theft) “for the purpose of proving
the existence of the criminal street gang and criminal gang act...
CopyCited 43 times | Published | Supreme Court of Georgia | Mar 5, 2018
...mbership cards, but nothing of significant value) and in the theft of an all-terrain vehicle. Finally, the State introduced evidence that Anthony was involved in a shoplifting incident. The trial court admitted all of this evidence under former OCGA §
16-15-9, which-at the time of Anthony's trial-provided that "the commission of any offense enumerated in paragraph (1) of Code Section
16-15-3 [including theft as a "racketeering activity" and any offense involving a weapon] by any member or assoc...
...See Lupoe v. State,
300 Ga. 233, 245 (8),
794 S.E.2d 67 (2016). But, again, *411there was no error, much less plain error. Anthony was charged with violating the Street Gang Act, so evidence of his participation in gang activities-as provided in former OCGA §
16-15-9 -was direct evidence of an essential part of several of the offenses with which he was charged....
...The State showed that Strozier pled guilty to a 2013 battery, that he was involved with the theft of a vehicle in 2012, and that he pled guilty to disorderly conduct in 2012. On appeal, Strozier claims that the State failed to show that evidence of these crimes was admissible under former OCGA §
16-15-9....
...As a result, we review this claim for plain error. See OCGA §
24-1-103 ; see also Lupoe,
300 Ga. at 245 (8),
794 S.E.2d 67. As with the similar claim made on appeal by Anthony, discussed in Division 8, Strozier has not established error, much less plain error. At the time of his trial, OCGA §
16-15-9 explicitly provided for the admission of evidence that the defendant had committed crimes involving violence or racketeering (including theft) "for the purpose of proving the existence of the criminal street gang and criminal gang activity...
...er Rule 403. See Olds v. State,
299 Ga. 65, 70 (2),
786 S.E.2d 633 (2016) ("[T]he exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly." (citation omitted) ).
We note that this Court recently held OCGA §
16-15-9 to be unconstitutional to the extent that it permits evidence that third-party gang members have committed any of the enumerated offenses "to be used as proof against other individuals in any proceeding in which those other individuals are...
CopyCited 19 times | Published | Supreme Court of Georgia | Oct 1, 2024 | 319 Ga. 846
...te for
testimony against a defendant to establish an element of a criminal
charge against the defendant. See id. at 60-61. And Appellant also
cites State v. Jefferson,
302 Ga. 435 (807 SE2d 387) (2017), which
relied on Kirby to hold “that OCGA §
16-15-9[6] is unconstitutional
on its face to the extent that it authorizes the admission of the
[records of] convictions of non-testifying non-parties as evidence of a
criminal street gang.” Id....
...According to Appellant,
“Kirby is controlling in this case[.]”
Here, we are unable to meaningfully analyze the merits of
Appellant’s claim because we cannot clearly discern what the claim
is, based on Appellant’s citations to the record and his arguments.
6 In relevant part, OCGA §
16-15-9 provides:
For the purpose of proving the existence of a criminal street
gang and criminal gang activity, the commission, adjudication, or
conviction of any offense enumerated in paragraph (1) of Code
Section 16-1...
CopyCited 15 times | Published | Supreme Court of Georgia | Oct 30, 2017 | 807 S.E.2d 387
...eq.). In connection with the State’s efforts to build a case against Appel-lees, the State gave notice of its intention to introduce into evidence at trial four certified copies of convictions relating to various gang *436members1 pursuant to OCGA §
16-15-9.2 That statute, as amended, provides:
For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16...
...shall be admissible in any trial or proceeding. Evidence offered under this Code section shall not be subject to the restrictions in paragraph (22) of Code Section 24-8-803.4
*437On August 18, 2016, Santez filed a “Motion in Limine to Declare OCGA §
16-15-9 Unconstitutional and to Bar the Introduction of Third Party Convictions,” arguing that the statute on its face violates the Confrontation Clause of the United States Constitution....
...evidence in the prosecution of Kirby for being in receipt of that stolen property was improper, as the introduction of such evidence violated Kirby’s Sixth Amendment rights). Accordingly, the trial court granted Appellees’ motion to declare OCGA §
16-15-9 unconstitutional, and excluded the use of any of the third party convictions against the Appellees.5
The State appeals from this ruling, and, for the reasons that follow, we conclude that the trial court correctly determined that OCGA §
16-15-9 is unconstitutional on its face to the extent that it authorizes the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang. We therefore affirm the decision of the trial court.
*438In reviewing the State’s claim that the trial court erred in concluding that OCGA §
16-15-9 is unconstitutional on its face,
we recognize at the outset that all presumptions are in favor of the constitutionality of an Act of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict...
...479 that allowed such evidence to be admitted was unconstitutional, because the statute operated “in violation of the clause of the Constitution of the United States declaring that in all criminal prosecutions the accused shall be confronted with the witnesses against him.” Id. at 61.
Here, OCGA §
16-15-9 does exactly what the United States Supreme Court declared was constitutionally forbidden in Kirby....
...ding, 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
OCGA §
16-15-3 (2). Pursuantto OCGA §
16-15-9, the State is allowed to meet its burden of proving the existence of a criminal street gang and criminal gang activity, not only by
confronting [the defendant] with witnesses to establish the vital fact that [a street gang exists that is engaged in criminal gang activity, but by confronting the defendant] ... with the record of another criminal prosecution, with which he had no connection and the evidence in which was not given in his presence.
Kirby, supra, 174 U. S. at 55. In this fundamental way, OCGA §
16-15-9 operates “in violation of the clause of the Constitution of the United States declaring that in all criminal prosecutions the accused shall be confronted with the witnesses against him.” Id. at 61.
Contrary to the State’s assertions, the third party criminal convictions of other alleged gang members admitted pursuant to OCGA §
16-15-9 cannot be classified as merely business or public records that are not “testimonial” in nature....
...-Diaz v. Massachusetts, 557 U. S. 305, 324 (III) (C) (129 SCt 2527, 174 LE2d 314) (2009); OCGA §
24-8-803 (8) (public records exception to rule against hearsay). Unlike administrative records, all third party convictions introduced pursuant to OCGA §
16-15-9 are created based on the results of a trial where testimony and evidence *442was taken to show the underlying basis for the conviction or based on a plea in which a factual basis and record was established to support the existence of the plea....
...s unable to cross-examine, when those convictions are used as proof of facts underlying the crime charged.
(Emphasis supplied.) Causevic, supra, 636 F3d at 1003-1004. See also Kirby, supra. Because third party convictions introduced pursuant to OCGA §
16-15-9 are used to “prov[e] the existence of a criminal street gang and criminal gang activity” in the cases of other defendants *443accused of engaging in criminal gang activity, the prior convictions are testimonial in nature and subject to...
...at 314 (III) (A) (citing Kirby with approval); Davis, supra, 547 U. S. at 825 (III) (A) (same). To the contrary, the high Court has consistently reaffirmed its holding in Kirby, and the continued viability and importance of that case is only made more evident under the circumstances created by OCGA §
16-15-9. Because OCGA §
16-15-9 on its face deprives criminal defendants of their fundamental right of confrontation in violation of the Sixth Amendment to the United States Constitution, the statute cannot pass constitutional muster and must be declared void to the exte...
...ed in the case against Appellees.
The State originally gave notice of its intention to introduce evidence of criminal convictions relating to sixteen individuals. However, at the September 19, 2016 hearing on Appellees’ joint motion to have OCGA §
16-15-9 declared unconstitutional, the State only sought the admission of four certified convictions.
Pursuant to OCGA §
16-15-3 (1):
“Criminal gang activity” means the commission, attempted commission, conspiracy to commit, or solicitatio...
...nment 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. . . .
OCGA §
16-15-9 was amended to ensure that convictions of third party gang members that were introduced into evidence for purposes of proving the existence of a criminal street gang and street gang activity would not be excluded based on the limitations set forth in OCGA §
24-8-803 (22)....
...vidence against the other defendants” to prove the existence of gang affiliation, not only for Cawthorne, but for all of the remaining Appellees as well). However, because the only issue presented on appeal deals with the constitutionality of OCGA §
16-15-9 as it relates to the admission of third party convictions to prove the alleged existence of a street gang, and not any issue relating to the admissibility of Cawthorne’s individual conviction against Cawthorne himself, the constitutional...
CopyCited 11 times | Published | Supreme Court of Georgia | Oct 5, 2021 | 312 Ga. 565
...748, 751 (2) (b) (854 SE2d 503) (2021). Here, as
Overstreet appears to concede, the evidence of the prior incident
with the rival gang (including Overstreet’s guilty plea to crimes
26
arising from it) was admissible under OCGA §§
16-15-98 and 24-4-
418 (a)9 and, along with other evidence, helped the State establish
both the existence of the G-Shine gang and Overstreet’s membership
and role in it....
...As discussed above, both showings were required to
prove that Overstreet violated the Gang Act, as alleged in the
indictment. Thus, the evidence was clearly probative of Overstreet’s
guilt as to those offenses. Moreover, while there was other evidence
8 OCGA §
16-15-9 provides:
For the purpose of proving the existence of a criminal street
gang and criminal gang activity, the commission, adjudication, or
conviction of any offense enumerated in paragraph (1) of Code
Section...
CopyCited 8 times | Published | Supreme Court of Georgia | Sep 21, 2021 | 312 Ga. 471
...predicate offense of possession of a firearm by a convicted felon alleging his
prior conviction for theft by taking.
11
were inadmissible because the State had failed (1) to meet the
requirements for admission under OCGA §
16-15-94 because the
State did not show that any of the proffered offenses had been
committed in furtherance of criminal street gang activity or (2) to
establish that the prior convictions were admissible under Rule 404
(b). Following a hearing, the trial court ruled that the prior
convictions were admissible under Rule 418.5 At trial, Dunn’s
4 OCGA §
16-15-9 provides, in pertinent part:
For the purpose of proving the existence of a criminal street gang
and criminal gang activity, the commission, adjudication, or conviction
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. . . .
We note that this Court held OCGA §
16-15-9
to be unconstitutional to the extent that it permits evidence that
third-party gang members have committed any of the offenses
enumerated “to be used as proof against other individuals in any
proceeding in which t...
...399, 409 (8) n.16 (811 SE2d 399) (2018) (emphasis
omitted) (quoting State v. Jefferson,
302 Ga. 435, 440 (807 SE2d 387) (2017)).
Here, Dunn is objecting to evidence of his own prior convictions, and because
Dunn does not assert any argument concerning OCGA §
16-15-9, we do not
address that provision.
5 Rule 418 (a) provides that
[i]n a criminal proceeding in which the accused is accused of
conducting or participating in criminal gang activity in violation of...
...criminal gang activity, as such term is defined in Code Section 16-
15-3, shall be admissible and may be considered for its bearing on
any matter to which it is relevant.
The trial court did not address whether the convictions were also admissible
under OCGA §
16-15-9 or OCGA §
24-4-404 (b), nor will we.
13
not probative.6 See Thompson v....
CopyCited 1 times | Published | Supreme Court of Georgia | Sep 8, 2021 | 312 Ga. 363
...was sufficient to support conviction for aggravated assault on
children)).
2. Baker alleges, and the State concedes, that the trial court
erred by allowing the State to introduce the criminal convictions of
third-party gang members5 under OCGA §
16-15-9.6 See State v.
Jefferson, 302 Ga....
...The State concedes that the trial court erred in admitting the
third-party convictions, but does not address the additional testimonial
evidence. For the purposes of our analysis, we will assume, without deciding,
that the admission of the officers’ testimony was also error.
6 OCGA §
16-15-9 states:
For the purpose of proving the existence of a criminal street
gang and criminal gang activity, the commission, adjudication, or
conviction of any offense enumerated in paragraph (1) of Code
Sectio...
...gang shall be admissible in any trial or proceeding. Evidence
offered under this Code section shall not be subject to the
restrictions in paragraph (22) of Code Section
24-8-803.
12
portion of OCGA §
16-15-9 allowing for the introduction of third-
party convictions at trial to be unconstitutional on its face for
violating a defendant’s confrontation rights).7 However, the State
argues that the error was harmless beyond a reasonable doubt....
