Randolph v. State
| Decision Date | 13 November 2015 |
| Docket Number | No. A15A1024.,A15A1024. |
| Citation | 780 S.E.2d 19,334 Ga.App. 475 |
| Parties | RANDOLPH v. The STATE. |
| Court | Georgia Court of Appeals |
334 Ga.App. 475
780 S.E.2d 19
RANDOLPH
v.
The STATE.
No. A15A1024.
Court of Appeals of Georgia.
Nov. 13, 2015.
Earle Johnston Duncan III, for Appellant.
Andrew J. Ekonomou, Atlanta, Jacquelyn Lee Johnson, for Appellee.
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 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."
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 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 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 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 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...
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