Morris v. State

• Decision Date: 21 February 2017
• Docket Number: A16A1960
• Citation: 797 S.E.2d 207,340 Ga.App. 295
• Parties: MORRIS v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 295

797 S.E.2d 207

MORRIS

v.The STATE.

A16A1960

Court of Appeals of Georgia.

February 21, 2017

Deborah Lorraine Leslie, Jonesboro, for Appellant.

Peter J. Skandalakis, La Grange, John Herbert Cranford Jr., for Appellee.

Dillard, Presiding Judge.

Following a trial by jury, Taurean Morris was convicted of criminal attempt to commit armed robbery, aggravated assault, aggravated battery, violation of the Georgia Street Gang Terrorism and Prevention Act¹ (three counts), and possession of a firearm during the commission of a felony. Morris appeals from these convictions, arguing that (1) the evidence was insufficient to sustain his convictions for violation of the Street Gang Terrorism and Prevention Act; (2) his trial counsel rendered ineffective assistance in a number of instances; (3) the trial court erred in denying a motion to sever his trial from that of a co-defendant; (4) the trial court erroneously admitted evidence under Rule 404 (b); (5) the trial court erred in giving limiting instructions to the jury; (6) the trial court erred in admitting irrelevant and cumulative hearsay testimony regarding his alleged gang connections; and (7) certain counts should have merged for purposes of sentencing. For the reasons set forth infra , we affirm Morris's convictions in part, vacate in part, and remand to the trial court for resentencing.

Viewed in the light most favorable to the jury's verdict,² the record reflects that on January 8, 2014, the victims, Raymond Ball and Jazmine Webb, were at home in their apartment when there was a sudden knock at the door. Webb peered through the peephole and recognized a person with "little twist dreads," who she had seen purchase marijuana from Ball on numerous occasions. Webb also recalled previously seeing this person associated with a gray, four-door vehicle.

When Ball looked through the peephole and saw two men, he was hesitant to open the door because he was not expecting visitors. But he eventually did so after recognizing one of the two men as "Tee," someone who had purchased marijuana from him more than 20 times. Ball and Webb later identified "Tee" in court as Morris. And when Morris and the other man entered the apartment, Webb immediately recognized the other man as Dekarri Ruffin, a former classmate.

Morris and Ruffin feigned interest in purchasing marijuana from Ball, which he went to retrieve from a back bedroom.³ But upon returning to the hallway, Ball was confronted by the men and, though he subsequently blacked out and could not remember exactly what occurred, both he and Webb testified that Morris fired shots from a handgun, two of which struck Ball, inflicting serious injuries.⁴ Ball then recalled seeing both Morris and Ruffin appear to look for items to steal before fleeing the apartment after Webb's brother emerged from his room. In a 911 call that followed, Webb identified Ruffin by name. And immediately after the incident, a neighbor who heard multiple gunshots saw two males matching Morris and Ruffin's description run into the parking lot and, shortly after that, saw a gray, four-door vehicle depart from the scene.

The same night as the incident, Webb visited Ruffin's Facebook page and, while perusing the account, identified both Ruffin and Morris in pictures as having been the perpetrators. She then showed these pictures to an investigating officer. Webb then found more pictures on Facebook later that same night, including a photograph of the vehicle that she had previously associated with Morris, and she provided the officer with those pictures as well. Using the photograph of the gray, four-door vehicle, officers were able to associate the vehicle's tag number with Morris's name and address.

Thereafter, law enforcement presented Ball with two photographic lineups, and he identified Ruffin and Morris in both of them. And when Morris was later apprehended, he was found with his hair in "little twist dreads" like those Webb had described. Morris and Ruffin were jointly indicted, tried together for the offenses enumerated supra after the trial court denied their motions to sever, and ultimately convicted of the enumerated offenses. Morris appeals following the denial of his motion for new trial.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence.⁵ And the relevant question before us is whether, "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁶ We are not at liberty to weigh the evidence or determine witness credibility, and the jury's verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.⁷ With these guiding principles in mind, we turn now to Morris's enumerations of error.

1. Morris argues that the evidence was insufficient to sustain his convictions in counts 4, 5, and 6 for violation of the Street Gang Terrorism and Prevention Act.⁸ Specifically, he contends that the State failed to establish that he was associated with a criminal street gang or to establish the necessary nexus between the predicate crimes and criminal-gang activity. We disagree.

A criminal street gang is a "group of three or more persons associated in fact ... which engages in criminal street gang activity."⁹ The existence of such a gang may be established by "evidence of symbols, tattoos, graffiti, attire, [and] other distinguishing characteristics" that include, but are not limited to "common activities, customs, or behaviors."¹⁰ And in Georgia it is "unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of" specific enumerated offenses.¹¹

Here, Morris was charged with three counts of violating the Georgia Street Gang Terrorism and Prevention Act by participating in criminal street gang activity through the commission of attempted armed robbery, aggravated assault, and aggravated battery while associated with "Sex Money Murder," a criminal street gang, and "a subset of the Blood criminal street gang." In order to prove that he violated the Act in these ways, the State was required to show that (1) Morris was, in fact, associated with Sex Money Murder; (2) Sex Money Murder was a "criminal street gang" as defined by law;¹² (3) Morris committed the predicate acts of "criminal street gang activity," namely attempted armed robbery, aggravated assault, and aggravated battery;¹³ and (4) the commission of the predicate acts was intended to further the interests of Sex Money Murder.¹⁴ As to this final factor, it is well established that "proof that the commission of the predicate act was intended to further the interests of the gang is essential to prove a violation of OCGA § 16-15-4 (a)."¹⁵

First, although Morris does not challenge the sufficiency of the evidence as to the underlying predicate offenses of attempted armed robbery,¹⁶ aggravated assault,¹⁷ and aggravated battery,¹⁸ we note that the evidence, as recounted supra , was sufficient for the jury to conclude that he committed same and, thus, to sustain his convictions for counts 1 through 3.¹⁹

As to Morris's association with Sex Money Murder and the fact that Sex Money Murder is a criminal street gang, the State presented extensive evidence of both Morris and Ruffin's association with other members of Sex Money Murder, and witnesses testified regarding the criminal activities committed by those other members and/or the criminal activities of the gang.²⁰ Additionally, an expert in criminal street gangs described for the jury the "symbols, tattoos, graffiti, attire, [and] other distinguishing characteristics," including "common activities, customs, or behaviors,"²¹ that are associated with Sex Money Murder. Then, after reviewing Facebook posts by Morris and Ruffin in which the two displayed various distinguishing characteristics associated with Sex Money Murder (e.g. , hand signs/symbols, language, tattoos), the State's expert witness opined that both were indeed members of the gang. As a result, the State presented sufficient evidence to connect Morris to Sex Money Murder and to establish that Sex Money Murder is a criminal street gang as defined by law.²²

Morris next argues that the State's evidence failed to show that the commission of the attempted armed robbery, aggravated assault, and aggravated battery were intended to further the interests of Sex Money Murder. In other words, Morris argues that the State failed to establish the necessary nexus between those crimes and participation in a criminal street gang. And in Randolph v. State ,²³ in which we reversed the criminal conviction due to the State's failure to establish the necessary nexus between the predicate acts and participation in a criminal street gang,²⁴ we noted that whenever we have found the evidence sufficient to sustain such a conviction, "the [S]tate has shown something more than the mere commission of a crime by gang members."²⁵

In this case, the State presented evidence of both Morris and Ruffin's association with members of Sex Money Murder; evidence of both Morris and Ruffin publicly displaying symbols and using language associated with Sex Money Murder; and evidence of Sex Money Murder's criminal activities. And in order to connect Morris and Ruffin's association with Sex Money Murder to the predicate crimes, the State presented evidence that just three days after the incident in question, Ruffin—to whom Webb was connected via Facebook—posted a status update that read as follows: "Yall been waiting on a reply .. keep waiting yall will 3 me when yall 3 me .. say no more ... # BLATT # SMM # GunzUP" Testimony by a law-enforcement officer established that the hashtags²⁶ used at the end of the status update were words or references commonly used by the Sex...