State v. Hood
307 Ga. App. 439
| Ga. Ct. App. | 2010Background
- Indictment returned March 24, 2009 charging 12 defendants with criminal street gang activity under OCGA § 16-15-4 for offenses between Jan 1, 2007 and Jun 18, 2008.
- Count 1 alleged participation in gang activity by being associated with the gang known as 30 Deep and committing enumerated offenses in Counts 2–16.
- Defendants filed general and special demurrers challenging the indictment's failure to allege when the gang formed and to specify a date of existence.
- Trial court granted a special demurrer and quashed Count 1, holding the gang’s formation date was a material element and not alleged; it also found no proper response to special demurrers under OCGA § 17-7-54.
- On appeal, the State argued the indictment tracked the statute and did not need a prior formation date, and that a specific formation date was not required given the dates alleged for the predicate acts.
- The appellate court reversed, holding the indictment sufficiently alleged existence and ongoing activity at the time of the predicate acts and that a precise formation date was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the indictment allege the gang existed prior to the enumerated offenses? | State argues Rodriguez permits ongoing activity without prior existence. | Hood et al. contend prior existence is required. | Indictment sufficient; prior-existence date not required. |
| Is a specific date of gang formation required in the indictment? | State provided dates for each offense and argues them enough. | Defendants contend need for a precise formation date. | Not required; dates for offenses suffice to formulate a defense. |
Key Cases Cited
- Delaby v. State, 298 Ga.App. 723 (2009) (special demurrers require perfect indictment in form and substance where timely raised)
- Bramblett v. State, 239 Ga. 336 (1977) (special demurrer challenges form; time and place elements must be definite)
- Adams v. State, 293 Ga.App. 377 (2008) (indictment sufficiency tested by can defendant admit charge and still be innocent)
- State v. Pittman, 302 Ga.App. 531 (2010) (de novo review of special demurrers)
- Moore v. State, 294 Ga.App. 570 (2008) (where state cannot allege a specific date, may allege a range between dates)
- Layman v. State, 279 Ga. 340 (2005) (extensions on date narrowing when evidence can clarify dates)
- Johnson v. State, 233 Ga. App. 450 (1998) (indictments must include time and place elements; defects appealable on demurrer)
- Rodriguez v. State, 284 Ga. 803 (2009) (Anti-Gang Act requires nexus between predicate act and gang activity; ongoing activity at time of offense)
- State v. Ramirez-Herrara, 306 Ga.App. 878 (2010) (indictment language tracks OCGA § 16-15-4(a) and is sufficient)
- Layman, supra, 279 Ga. 340 (2005) (date narrowing guidance for indictments)