Nolley v. the State
335 Ga. App. 539
Ga. Ct. App.2016Background
- Darnell C. Nolley was convicted by a jury of attempted armed robbery, aggravated assault (later merged/vacated), multiple violations of the Street Gang Terrorism and Prevention Act (OCGA § 16-15-4 subsections (a), (b), (d), (e)), firearm possession counts, and obstruction; several convictions were later vacated by the trial court via merger.
- The Street Gang Act counts alleged Nolley acted as a high‑ranking Gangster Disciples leader who planned and directed a March 30, 2011 attempted robbery/shooting of David Hammond, involving several co‑defendants and gang‑related indicia (handshake, texts, bandana).
- Prosecution theory: the predicate offenses (attempted armed robbery, aggravated assault, firearm possession) constituted criminal gang activity and were committed to further gang interests, to maintain/increase Nolley’s status, or as an organizer recruiting/encouraging others.
- Evidence included co‑defendant testimony, GBI gang expert testimony, texts and a gang handshake, gun procurement arranged by Nolley, and actions at the scene including shots fired that wounded Hammond.
- Appellant challenged (1) sufficiency of evidence on the remaining Street Gang Act counts and (2) that all Street Gang Act counts should merge into the organizer count (count 11) under double jeopardy principles.
Issues
| Issue | Nolley’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for OCGA § 16‑15‑4(a), (b), (d), (e) counts (multiple counts) | Evidence did not show requisite nexus or intent to further gang interests, or organizer status for §16‑15‑4 subsections | Proof of gang membership, planning, gang symbols, motive (respect, territory), and leadership status established nexus and requisite intent | Convictions on all challenged Street Gang Act counts were supported by sufficient evidence except count 18 (venue defect) |
| Venue for count 18 (encouraging Reaves) | Insufficient proof venue was Walton County for the gun arrangement with Reaves | Argued contacts and conduct tied to Walton County | Reversed for count 18: State conceded the gun exchange and arrangement occurred outside Walton County; venue not proved |
| Double jeopardy / merger of all §16‑15‑4 convictions into count 11 (organizer charge) under Drinkard required‑evidence test | All Street Gang Act convictions arose from same conduct and therefore must merge into count 11 | §16‑15‑4(m) makes each violation a separate offense; Legislature authorized multiple convictions; Drinkard not applicable | Drinkard test not applied across distinct subsections (a),(b),(d),(e); convictions may stand as separate statutory offenses under §16‑15‑4(m) |
| Multiplicity within subsection (b) (counts 7 and 9: increase v. maintain status) and effect of predicate offense merger on gang counts (counts 8, 11 predicated on vacated aggravated assault) | Counts 7 and 9 punish the same statutory offense twice; counts 8 and 11 derive from merged/ vacated aggravated assault and should be vacated | State defended counts as distinct theories; conceded some predicate merger consequences | Count 9 vacated as multiplicitous with count 7 (single unit of prosecution for maintain v. increase). Counts 8 and 11 vacated because they rested on the aggravated assault count that merged into the attempted armed robbery; case remanded for resentencing |
Key Cases Cited
- Jones v. State, 292 Ga. 656 (establishes need to prove intent to further gang interests under OCGA § 16‑15‑4(a))
- Rodriguez v. State, 284 Ga. 803 (requires nexus between predicate act and intent to further gang activity)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Drinkard v. Walker, 281 Ga. 211 (required‑evidence test for merger/double jeopardy)
- Mathis v. State, 273 Ga. 508 (legislature may authorize multiple punishments; limits of double jeopardy challenge)
- Brown v. Ohio, 432 U.S. 161 (double jeopardy principle that multiple punishments cannot exceed legislative authorization)
- Reed v. State, 318 Ga. App. 412 (aggravated assault merges into attempted robbery; consequences for predicate‑based gang counts)
- King v. Waters, 278 Ga. 122 (vacatur of gang counts predicated on vacated predicate offense)
- Gipson v. State, 332 Ga. App. 309 (when multiple convictions under same statutory provision require unit‑of‑prosecution analysis rather than Drinkard)
- Marlowe, 277 Ga. 383 (unit of prosecution analysis guidance)