Giddens v. State

• Decision Date: 23 May 2016
• Docket Number: No. S16A0256.,S16A0256.
• Citation: 786 S.E.2d 659,299 Ga. 109
• Parties: GIDDENS v. The STATE.
• Court: Georgia Supreme Court

299 Ga. 109

786 S.E.2d 659

GIDDENS

v.The STATE.

No. S16A0256.

Supreme Court of Georgia.

May 23, 2016.

Joshua David Holt, Leisa Green Johnson, Albany, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Gregory W. Edwards, Dist. Atty., Heather Hendricks Lanier, Asst. Dist. Atty., Elizabeth M. Haase, Asst. Atty. Gen., for appellee.

NAHMIAS, Justice.

Appellant Matdrick Giddens was found guilty of five crimes, including two counts of felony murder, in connection with the shooting death of Timothy Murray, Jr. After the trial court granted Appellant's motion for new trial based on two instructional errors, he filed a plea in bar seeking dismissal of the case based on his constitutional protection against double jeopardy. The trial court denied the plea in bar, and Appellant now appeals that ruling. He argues that the evidence at his trial was insufficient to support the guilty verdicts and that collateral estoppel bars the State from retrying him for the crimes of which he was found guilty, because he was acquitted of the aggravated assault count that is a predicate element of all of those crimes.

We conclude that the evidence was sufficient to support the guilty verdicts. As for the collateral estoppel issue, we note that the United States Supreme Court recently granted certiorari to decide this very question, which has divided the lower courts. See United States v. Bravo–Fernandez, 790 F.3d 41 (1st Cir.2015), cert. granted, ––– U.S. ––––, 136 S.Ct. 1491, 194 L.Ed.2d 585 (2016). Unfortunately, that decision will come down after our two-term deadline for deciding this case, see Ga. Const. of 1983, Art. VI, Sec. IX, Par. II, so we must work through the constitutional question. After doing so, we join the majority position and reject Appellant's argument. We therefore affirm the trial court's judgment.¹

1. Appellant's first argument is that the evidence at his trial was legally insufficient to support the guilty verdicts the jury returned, which would bar a retrial on those charges as a matter of double jeopardy. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). This argument is meritless.

(a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Testimony from a gang investigator, who was qualified as an expert, showed that the 8 Tray Crips and the CME Rattlers were rival criminal street gangs operating in Albany, Georgia. In late 2007, their rivalry erupted into deadly violence. Around 10:30 p.m. on October 25, a Rattlers member was shot, and Crips members, including Desmond and Dante Oliver, were suspected. About two hours later, a house belonging to the grandmother of the Olivers and Murray, who was also a Crips member, was shot at from a passing car. Ten days later, on November 4, Rodreges Strum, a Rattlers member, was seen walking near the house that had been targeted. The Olivers confronted Strum about the drive-by shooting. Strum told the Olivers that he would “be back with my CME [Rattlers] boys.”

Both gangs then rallied their members for a fight. Murray and Appellant, who was also a Crips member, were among those called to the Olivers' side. Murray was already at the house; Appellant was brought there by another Crips member. Strum returned to the house in a Chevrolet Tahoe, bringing Eric Jackson and other Rattlers with him. When they arrived and got out of the vehicle, fist fights began between the gang members. Ronald Taylor, a Rattlers member, then arrived in a car with three other people, one of whom was a child. Taylor left the car and joined in the fist fighting. There is no evidence that Appellant engaged in any fist fighting. At some point during the skirmish, Jackson returned to the Tahoe, retrieved a revolver, and began to fire, shooting first into the air and then toward the area where Murray and others were running. Appellant, who came from behind the house with a revolver or a 9mm gun, and Desmond Oliver, who had been involved in the fist fighting and had a .25–caliber handgun, returned fire.² Appellant shot in the direction of both Jackson, who was standing in the middle of the street, and Murray, who was in a crowd across the street. At some point during this gun fight, a .38 caliber bullet fired from a revolver struck Murray in the head, killing him. No guns were recovered from the scene, but two 9mm shell casings were found near the house.

(b) The evidence presented at trial and summarized above was legally sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was found guilty, at least as a party to the crimes. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; OCGA § 16–2–20 (defining parties to a crime). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)). In particular, even if Appellant did not intend to shoot his fellow gang member Murray, “[f]rom the circumstances proven in this case, a rational jury could have inferred that [Appellant] shared a common criminal intent with [the other shooters] to engage in a gunfight in the presence of [others],” and thus “the evidence was sufficient for a rational trier of fact to find that [Appellant] was a party to the crime[s] ... under the doctrine of transferred intent.” Coe v. State, 293 Ga. 233, 235, 748 S.E.2d 824 (2013).

Relying on Rodriguez v. State, 284 Ga. 803, 671 S.E.2d 497 (2009), Appellant argues that even if there was sufficient evidence that he was a party to the aggravated assault of Murray, his conviction for criminal street gang activity based on that aggravated assault was improper because being a party to gang activity is not sufficient for a conviction of that offense. OCGA § 16–15–4(a) provides that it is unlawful for a person associated with a criminal street gang “to conduct or participate in criminal gang activity through the commission” of any offense enumerated in OCGA § 16–15–3(1), which includes aggravated assault. Rodriguez explained that a defendant cannot be convicted for merely being associated with a gang that commits criminal acts; the defendant must personally commit an enumerated offense himself. See 284 Ga. at 807, 671 S.E.2d 497. But nothing in the gang statute changes the ways in which a criminal offense can be committed, and OCGA § 16–2–20, defining parties to a crime, says that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime....” Accordingly, because the evidence at trial was sufficient to prove that Appellant personally committed the offense of aggravated assault by at least being a party to that offense, he could properly be convicted of participation in criminal gang activity based on that offense.

2. Appellant's second argument is that principles of collateral estoppel derived from the constitutional protection against double jeopardy bar the State from trying him again, because he was acquitted of the aggravated assault that is a predicate for each of the five crimes of which he was found guilty. Appellant was acquitted of aggravated assault by shooting Murray, and he is correct that, as they are alleged in the indictment, all of the crimes for which the State seeks to retry him require proof of that same aggravated assault: felony murder based on the aggravated assault, felony murder based on criminal street gang activity based on the aggravated assault, criminal street gang activity based on the aggravated assault, criminal street gang activity based on possessing a firearm during the commission of the aggravated assault, and possession of a firearm during the commission of the aggravated assault.

Determining how Appellant's acquittal of the underlying offense affects his retrial for crimes of which he was initially found guilty is an issue that, as mentioned earlier, the United States Supreme Court has announced that it will authoritatively decide, but not in time for the decision we must render in this case. We instead look for guidance to a trio of the Supreme Court's previous collateral estoppel decisions, as well as the decisions that other appellate courts around the country have reached on this question.

(a) We begin with Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where the Supreme Court first held that the rule of collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy,” which is applied to the states through the Fourteenth Amendment. Ashe, 397 U.S. at 445, 90 S.Ct. 1189.³ Under this doctrine, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189. The protection against double jeopardy fundamentally protects against a second prosecution for the same offense after acquittal. See Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). Ashe extended this principle by applying collateral estoppel to preclude retrial of the factual decisions that necessarily underlie the legal determination of acquittal. See United States v. Kramer, 289 F.2d 909, 916 (2d Cir.1961) (“The very nub of collateral estoppel is to extend res judicata beyond those cases where the prior judgment is a complete bar.”). To effectuate this preclusion, the defendant has the burden of proving from the record what facts were “actually and necessarily decided in [his] favor.” Schiro, 510 U.S. at 236, 114 S.Ct. 783.⁴

The answer is not always clear from the face of the verdict. For example, in Ashe, the defendant was acquitted of robbing one victim at a poker game; he was then tried for robbing another victim...