State v. McKinney
| Decision Date | 29 November 2022 |
| Docket Number | A22A1509 |
| Parties | THE STATE v. MCKINNEY |
| Court | Georgia Court of Appeals |
Jerrion McKinney was indicted with co-defendant Julian Conley for multiple violations of the Georgia Street Gang Terrorism and Prevention Act (OCGA § 16-151 et seq.; hereinafter "Georgia's Gang Act"), aggravated assault possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon stemming from gang protests that arose following the fatal shooting of Rayshard Brooks by Atlanta Police.[1] The State appeals the trial court's pre-trial ruling pursuant to OCGA §§ 16-15-1 et seq. and 24-4-418 ("Rule 418") excluding two alleged prior acts of criminal gang activity committed by McKinney. For the reasons discussed below, we reverse and remand with direction.
The parties agree that on June 12, 2020, Rayshard Brooks was shot and killed by Atlanta Police at the Wendy's restaurant at 125 University Avenue. According to the State, Brooks was a member of the Piru Bloods criminal street gang. According to the State, as well as local news reports, as a result of Brooks' shooting, on July 4, 2020, armed Piru Bloods gang members blocked the intersection of 135 Pryor Road and 99 University Avenue in Atlanta and seized control of the area from authorities. The State expects the evidence to show that as vehicles attempted to pass through the area, McKinney and Conley pointed rifles in their direction, and that Conley opened fire on one of the vehicles. In doing so, Conley allegedly shot and killed eight-year-old Secoriea Turner as she was traveling in her family's vehicle. The State also plans to show that McKinney attempted to pursue the family's vehicle through traffic as it rushed to the hospital; that McKinney later identified himself on video surveillance at the scene immediately prior to the incident; that McKinney admitted that he had a loaded weapon at the time; that McKinney is a member of the Knot Boyz Gang, a hybrid street gang from the St. Louis, Missouri area, led by his older brother, which includes individuals from various Bloods gangs; and that McKinney's social media showed numerous indicators of McKinney's gang membership, including the display of Bloods gang hand signals while wearing red clothing and holding a firearm.
On August 13, 2021, a Fulton County grand jury issued a 37-count indictment against McKinney and Conley. The indictment charged McKinney with twelve counts of violating Georgia's Gang Act, two counts of aggravated assault, and one count each of possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. On December 20, 2021, the State filed its notice of intent to introduce evidence of prior criminal gang activity pursuant to OCGA §§ 1615-1 et seq., and 24-4-418. The State originally sought to introduce four prior acts against McKinney, but withdrew one of the acts at the hearing on its motion, leaving the following three prior acts: (1) an incident occurring on February 13, 2016, when McKinney shot himself in the foot with a 9mm pistol and then hid the gun in nearby bushes; (2) an incident occurring on May 4, 2015, when McKinney took a stolen firearm to school in Hazelwood, Missouri, and pointed it at a classmate's head; and (3) an incident occurring on April 3, 2017, when McKinney robbed two victims at gunpoint of an iPhone7.
Following a hearing, the trial court granted the State's request to introduce the third incident, but denied its request to introduce the first two incidents, finding as follows:
The central dispute is whether the State must prove the prior acts were related to gang activity to be admissible under OCGA § 24-4-418. The State's primary argument is that the plain language of the statute does not require any connection between the prior acts and gang membership.... The [c]ourt finds in reading OCGA § 24-4-418 and its reference to OCGA §§ 16-5-3 and 16-15-4 and those statutes in conjunction with one another that a nexus between the prior act and an intent to further gang activity must be established for the evidence to be admissible under OCGA § 24-4-418 in this case.... As to Defendant McKinney, the [c]ourt finds that the nexus is met as related to the incident that occurred April 3, 2017.... At the time of the incident, police also arrested Temetrius Cross for participating in the robbery with Defendant McKinney. According to the State, "Cross is a known gang member with several gang tattoos on his person (314 dripping in blood, five pointed star, and head of a cardinal shaded in red) and a history of engaging in gang activity." The State also indicates that at the time Defendant McKinney was known to be associated with the criminal street gang KBG in Missouri, his brother Ryan McKinney was identified to law enforcement as the leader of KBG, and law enforcement indicates KBG is involved in criminal activities.... The [c]ourt further finds that [the other two incidents] do not have the requisite nexus between the act and intent to further street gang activity for the acts to be admissible under OCGA §§ 16-15-9 or 24-4-418.
The State appeals from this order.
1. Before reaching the merits of this appeal, we note that the State's brief fails to comply with the rules of this Court in that it contains nothing designated as an enumeration of errors. "Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this [C]ourt." (Citation and punctuation omitted.) Orange v. State of Georgia, 319 Ga.App. 516, 517 (1) (736 S.E.2d 477) (2013). "[T]his Court has considered appeals despite the appellant's failure to file an enumeration of errors where we could discern the errors asserted on appeal." Advantage Behavioral Health Systems v. Cleveland, 350 Ga.App. 511, 515 (1) (829 S.E.2d 763) (2019) () (citation and punctuation omitted). Given that we are able to decipher from the State's brief and the record the error that the State is asserting on appeal, we will consider the appeal. Id. at 517 (1).
2. The State contends that the trial court abused its discretion by excluding evidence of McKinney's prior criminal gang activity because the plain language of Rule 418 does not require the State to show that any of the prior acts were committed in furtherance of the gang. The State argues that the trial court's order confuses the definition of criminal gang activity (OCGA § 16-15-3) and the elements of proof of the crime of participation in criminal street gang activity (OCGA § 16-15-4), and improperly required the State to prove the elements under the latter Code section even though that is not the standard. In its view, the trial court erred by sua sponte adding requirements to Rule 418 that do not appear in the plain language of the statute.[2]
"Like other evidence, the admission of evidence of gang activity is committed to the sound discretion of the trial court, and the court's decision to . . . exclude such evidence will not be disturbed on appeal absent an abuse of discretion." (Citation and punctuation omitted.) State v. Thomas, 364 Ga.App. 148, 149 (2) (874 S.E.2d 195) (2022). "But . . ., the abuse-of-discretion standard does not permit a clear error of judgment or the application of the wrong legal standard." (Citation and punctuation omitted.) Id.
Our analysis begins with Rule 418, which provides:
OCGA § 16-15-3 provides as follows: As used in this chapter, the term:
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