Alston v. State
329 Ga. App. 44
| Ga. Ct. App. | 2014Background
- Alston and Perkins (with co-defendant Leonard) traveled from New Jersey to Georgia and were arrested after an armed robbery near Six Flags on April 5, 2009; Leonard pleaded guilty and testified.
- Victim Santos and witnesses (including bus-stop witnesses Baker and Akinsaye and apartment resident White) identified three men wearing red/black gang colors; stolen items and a handgun were reported and recovered; 911 calls were placed immediately after the robbery.
- Evidence at trial included gang-related tattoos, clothing, witness testimony about defendants’ statements and conduct, jail communications, and expert testimony about the Bloods gang and how crimes can further gang reputation.
- Both appellants were convicted of aggravated assault, armed robbery, theft by receiving, cruelty to children, criminal street gang activity (OCGA § 16-15-4), and possession of a firearm during a crime; each filed timely appeals.
- Trial court denied motions for new trial; appeals consolidated and reviewed by the Court of Appeals, which affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of nexus for criminal street gang conviction | Evidence shows crimes were committed to further Bloods reputation; wearing gang colors, tattoos, statements about committing robberies, expert testimony, and jail communications establish nexus | Alston/Perkins: No evidence linking Georgia conduct to New Jersey gang activity or intent to further gang activity | Affirmed — evidence was sufficient to establish nexus and furtherance of gang activity |
| Motion to sever (Alston) | No prejudice from joint trial; evidence relevant to each defendant; limiting instructions would prevent spillover | Alston: Perkins’s visible facial tattoos and juror reactions caused prejudice and potential spillover | Affirmed — no abuse of discretion; jurors were questioned, limiting instructions given, and tattoo evidence was admissible |
| Admissibility of 911-call recordings | Calls were contemporaneous, nontestimonial, and admissible under res gestae as made to secure police assistance during an ongoing emergency | Alston: Two callers didn’t testify; statements were afterthought, not eyewitness, and some info came from background voices | Affirmed — calls were made immediately after the robbery, were reliable, and fit res gestae/hearsay exception |
| Ineffective assistance for not covering Perkins’s tattoos | State: counsel’s strategic choice was reasonable; covering might appear evasive and photographs of tattoos would be admitted anyway | Perkins: Counsel deficient for failing to cover tattoos or move for mistrial after prejudice | Affirmed — strategic decision not patently unreasonable; Perkins did not show deficient performance or prejudice |
Key Cases Cited
- Rodriguez v. State, 284 Ga. 803 (2009) (criminal street gang statute requires nexus between predicate act and intent to further gang activity)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Thomas v. State, 284 Ga. 540 (2008) (res gestae and admissibility of 911 calls during ongoing emergencies)
- Glover v. State, 285 Ga. 461 (2009) (911 statements are nontestimonial when made to secure police assistance during an ongoing emergency)
- Jones v. State, 318 Ga. App. 26 (2012) (gang membership may be proved by tattoos and related evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)