Rodriguez v. State

• Decision Date: 12 January 2009
• Docket Number: No. S08A1928.,S08A1928.
• Citation: Rodriguez v. State, 284 Ga. 803, 671 S.E.2d 497 (Ga. 2009)
• Parties: RODRIGUEZ, et al. v. The STATE.
• Court: Georgia Supreme Court

671 S.E.2d 497

284 Ga. 803

RODRIGUEZ, et al. v.The STATE.

No. S08A1928.

Supreme Court of Georgia.

January 12, 2009.

LeeAnne Anthony, Andrew Raymond Lynch, Corinne M. Mull, Daryl Warren Queen, for appellants.

Gwendolyn Keyes Fleming, Dist. Atty., Barbara B. Conroy, Michael S. Carlson, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Bondurant, Mixson & Elmore, John E. Floyd, Atlanta, for appellee.

Oxendine & Associates, Lee Wall Oxendine Shafer, Donald E. Henderson, Decatur, amici curiae.

CARLEY, Justice.

Gilberto Rodriguez and Efrain Rodriguez(Appellants) and several others were jointly indicted for multiple counts, including alleged violations of the Georgia Street Gang Terrorism and Prevention Act (Act), OCGA § 16-15-1 et seq.The indictment charged that both Appellants"did participate in criminal street gang activity by committing a crime of violence, to wit: aggravated assault while associated with a criminal street gang. . . ."A separate count charged Efrain Rodriguez alone with participation "in criminal street gang activity by possession [of] a pistol in violation of OCGA § 16-11-132 while associating with a criminal street gang. . . ."These two charges also served as the predicate offenses for two counts of felony murder.All four counts charging criminal street gang activity are based upon OCGA § 16-15-4(a), which makes it "unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal street gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3."In a "motion challenging constitutionality of OCGA § 16-15-4,"Appellants sought dismissal of those four counts.After conducting a hearing, the trial court entered a written order finding that the Act is constitutional and denying the motion on all grounds.Appellants appeal pursuant to our grant of their application for interlocutory appeal.They challenge the Act as infringing upon the First Amendment right to freedom of association and as facially vague and overly broad under the Federal and Georgia Constitutions.

1."`"(A) solemn act of the legislature is presumed to be constitutional.(Cit.)"(Cit.)'"Bohannon v. State,269 Ga. 130, 131(2), 497 S.E.2d 552(1998)."The rules of statutory construction require this court to construe a statute as valid when possible.[Cit.]"Gravely v. Bacon,263 Ga. 203, 206(2), 429 S.E.2d 663(1993).Consistent with this principle is the following explicit statement by the legislature regarding its intent:

It is not the intent of this [Act] to interfere with the exercise of the constitutionally protected rights of freedom of expression and association.The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, to associate lawfully with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process.The General Assembly, however, further finds that the State of Georgia is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected.The General Assembly finds that there are criminal street gangs operating in Georgia and that the number of gang related murders is increasing.It is the intent of the General Assembly in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs which together are the chief source of terror created by street gangs.

OCGA § 16-15-2 (a), (b), (c).There is "`no better source'" than such a legislative expression of an act's purpose "`to which a court may go for the purpose of finding the legislature's meaning of an act passed by it.'[Cit.]"Mason v. Home Depot U.S.A.,283 Ga. 271, 278(3), 658 S.E.2d 603(2008).Indeed, other jurisdictions construing anti-gang statutes have recognized the importance of such a legislative delineation of compelling state interests and explicit exclusion of constitutionally protected activity.Beth Bjerregaard, The Constitutionality of Anti-Gang Legislation, 21 CampbellL.Rev. 31, 37-38(II)(B)(1998).

States have also avoided vagueness and overbreadth challenges to anti-gang legislation by clearly defining key terms.Bjerregaard, supra at 41-42(III)(A, B).OCGA § 16-15-4 must be read in conjunction with the definitions of "criminal gang activity" and "criminal street gang" in OCGA § 16-15-3."Criminal gang activity" is defined as "the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of [certain enumerated] offenses on or after July 1, 2006. . . ."OCGA § 16-15-3(1).

"Criminal street gang" means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section.The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics.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).Utilizing these definitions, Appellants contend that OCGA § 16-15-4(a) makes it "unlawful for any person employed by or associated with a" group of three or more persons which engages in the commission of any enumerated offense "to conduct or participate in" the commission of any enumerated offense "through the commission of any offense enumerated. . . ."Accordingly, Appellants argue that current OCGA § 16-15-4(a), unlike previous versions, does not contain any requirement that the defendant actively participated in the group, had any knowledge of its illegal activities, or had any specific intent to further those activities.Appellants admit that this interpretation "is highly circular," but insist that any other construction would constitute a rewriting of the statute.

"The various provisions of a statute`should be viewed in harmony and in a manner which will not produce an unreasonable or absurd result.(Cits.)'[Cit.]"Lindsey v. State,277 Ga. 772, 774(1), 596 S.E.2d 140(2004).The trial court found that Appellants"parse words in a tortuous manner. . . ."Appellants' proposed construction of OCGA § 16-15-4(a) makes the middle portion, "to conduct or participate in criminal street gang activity," meaningless or redundant, and illogically precludes that portion from providing any nexus between the defendant's commission of an enumerated offense and his membership in a criminal street gang.Because any such language is absent from the statute construed in State v. O.C.,748 So.2d 945(Fla.1999), cited by Appellants, that case is distinguishable.The Florida statute examined in O.C., which enhanced the degree of a crime for sentencing purposes if the defendant was a gang member at the time of the crime's commission, violated substantive due process because it did not contain any nexus between the particular criminal act and the gang membership.

Although the enumeration of offenses in OCGA § 16-15-3(1) is essentially incorporated into OCGA § 16-15-4(a) at three different points, that fact does not make the latter statute redundant.At each of those points, the enumeration of offenses is relevant in a different manner.It is relevant to the definition of "criminal street gang" in OCGA § 16-15-3(2) in that the "group of three or more persons associated in fact" must engage in "criminal gang activity," which is a phrase that includes the list of enumerated offenses in OCGA § 16-15-3(1).However, the phrase "criminal gang activity" is itself broader than the commission of an enumerated offense and includes the unlawful procurement of the offense.More importantly, the purpose of OCGA § 16-15-3(1) is to define the "activity" and not the "actor."In the definition of "criminal street gang" in paragraph (2), the actor is the group acting through its members.That phrase is contained in the reference to "criminal street gang activity" in OCGA § 16-15-4(a), which is not identical to the phrase "criminal gang activity" as defined in OCGA § 16-15-3(1).Thus, we conclude that the "criminal street gang activity" mentioned in OCGA § 16-15-4(a) does not refer to the commission of an enumerated offense by a single individual acting alone.

Furthermore, the use of the verbs "conduct" and "participate" confirm that the middle portion of OCGA § 16-15-4(a) is referring to the "activity" of the group.The primary meanings of the verb "conduct" are "1.To direct the course of; manage or control.2.To lead or guide."The American Heritage Dictionary of the English Language 393 (3rd ed.1992).See also The New Shorter Oxford English Dictionary 473 (1993)("Lead, guide").The meanings of the verb "participate" are "1.To take part in something. . . .2.To share in something. . . ."The American Heritage Dictionary of the English Language,supra at 1319.See alsoState v. Stallings,150 Ohio App.3d 5, 778 N.E.2d 1110, 1114(2002)("`to take part in something (as an enterprise or activity)'");The New Shorter Oxford English Dictionary,supra at 2109("Take a part or share in an action or condition").Especially in the context of OCGA § 16-15-4(a), both of these words imply the presence of others who are managed, controlled, led or guided in the "criminal street gang activity" by the defendant or who take part...