Case Information
*1 SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 13, 2015 In the Court of Appeals of Georgia
A15A1024. RANDOLPH v. THE STATE.
B RANCH , Judge.
Based on his sworn testimony during a prior murder trial, a jury found Davan Randolph guilty of distributing marijuana, conspiring to distribute marijuana, and violating the Georgia Street Gang Terrorism and Prevention Act. Randolph appeals, arguing that his prosecution was barred by procedural double jeopardy, the state engaged in selective prosecution, venue was not proven, and there was insufficient evidence of the gang crime. We affirm the drug convictions, but reverse the gang activity conviction.
Viewed in a light favorable to the verdict, [1] the record shows that on August 29, 2006, a Camden County residence burned down and authorities discovered the body *2 of Michael Ryan Foley, who had lived there with several roommates, in the remains. Foley had been shot to death before the fire. Special Agent Richard Dial of the Georgia Bureau of Investigation, the lead investigator on the case, soon learned that Foley was a marijuana seller who had scheduled a drug deal for the morning of August 29. Dial and other agents tried “to find out who the deal was with and track that because those are the last people we believe had been present with [Foley] prior to his death.”
Dial interviewed two of Foley’s roommates, Josh Bordelon and Richard Allen Wessinger, and prepared summary reports that he later turned over to the prosecutor. Bordelon told Dial that on August 28, the night before the fire, Foley had said that a former neighbor, along with two of the neighbor’s friends, wanted to buy a pound of marijuana and were planning to come over on the morning of August 29 to complete the transaction. According to Bordelon, the prospective buyers wished to sample the marijuana first, so Foley rode around in their car and smoked a “blunt” with them the night of August 28. Foley reportedly told Bordelon that he was uneasy about the pending deal because “the buyers wished to pay more than the going rate for the marijuana.”
Wessinger gave a similar account. He told Dial that upon arriving home on the night of August 28, he saw a car with two black males inside pulling out of the driveway. [2] Wessinger said that Foley was standing in the driveway as the car was backing out and that Foley later told him that the men wanted to buy a pound of marijuana from him. According to Wessinger, Foley said that “he did not know the boys but knew one of the boy’s brother.” Foley’s girlfriend also told Dial that Foley had told her he “didn’t really know” the people involved in the pending deal.
Through further investigation, Dial identified Randolph as the former neighbor and “brother” to whom Bordelon and Wessinger had referred. Inside Randolph’s car, authorities found a slip of paper with Foley’s cell phone number written on it. Foley’s cell phone records showed that he had received multiple calls on August 28 from the residences of two of Randolph’s girlfriends. Several people told Dial that they had seen Foley sell small amounts of marijuana to Randolph in the past.
Randolph was arrested and charged with murder, armed robbery, arson, and gun possession. He was not charged with any drug or gang-related crimes. After the arrest, Dial took pictures of Randolph’s chest, which bore several tattoos *4 characteristic of the Folk Nation gang. Randolph – who was then in his thirties – told Dial that he had gotten the tattoos a long time ago.
Randolph testified at trial in his own defense. He said that he had met Foley 11 months before his death, smoked marijuana with him, and regularly bought small amounts of the drug from him for personal use. Randolph said that he had introduced other people – some of whom he knew and some of whom he did not know – to Foley as potential customers. Randolph explained that he had also helped Foley deliver marijuana: “[I]f I had friends that wanted some and I was already, going to get some and me and a friend of mine were planning to get together or something I would . . . go ahead and get theirs and take it to them.” Finally, Randolph testified that Foley would bring his marijuana and scales to Randolph’s girlfriend’s house, where he and Foley “would weigh it up and we would put it in bags.” According to Randolph, Foley would repay him for this assistance with approximately $25 worth of marijuana.
Randolph testified that he used to belong to the Folk Nation gang and that he had introduced Foley to some fellow gang members, or “brothers,” who then bought marijuana from him. Randolph said that these people – not him – were the ones who arranged to buy a large quantity of marijuana from Foley, met with him on the night *5 of August 28, and killed him and burned the house the next day. Randolph, however, refused to name the men. When asked the reason for his silence, he responded, “Did you see what they did to [Foley]? Do you think I’m going to let them do that to me and my family? Do you think I’m going to call these people’s names?” The jury found Randolph not guilty of all charges.
The state then brought a new indictment against Randolph charging him with four crimes based on his testimony in the first trial: (1) conspiracy to distribute marijuana, in that he had “put Ryan Foley in contact with other persons . . . for the purpose of distributing marijuana”; (2) conspiracy to distribute marijuana, in that he had weighed and packaged marijuana for the purpose of distribution; (3) distribution of marijuana, party to a crime, in that he had aided and abetted Foley by packaging marijuana for distribution and contacting purchasers; and (4) violation of the Georgia Street Gang Terrorism and Prevention Act, in that he had been associated with a gang and participated in gang activity by distributing marijuana. Randolph moved to dismiss the indictment on the ground that it violated the procedural double jeopardy protections in OCGA § 16-1-7 (b), which prohibits multiple prosecutions arising from the same conduct. The trial court denied the motion. Randolph also moved to dismiss *6 on the ground that he was the victim of selective prosecution in retaliation for his acquittal in the first trial, but the trial court apparently denied this motion as well.
The case proceeded to trial, and the state called two witnesses – Dial and the assistant district attorney who had prosecuted the first case. Dial testified that Randolph was not charged with any drug distribution crimes in his first trial because at that point, “all we had information was that Davan Randolph had purchased small amounts of marijuana.” It was not until Randolph took the stand during the first trial that Dial learned that he had “been more involved in Ryan Foley’s marijuana deals” and had introduced prospective customers – including gang members – to Foley. Dial further testified that Randolph was not charged with any gang crimes in his first trial because Dial “didn’t have any knowledge that he was using gang affiliation to distribute drugs until he testified during the first trial.”
The assistant district attorney who prosecuted the first case likewise testified that no drug or gang charges had been brought against Randolph at that time because he had no information to support such charges. The assistant district attorney also stated that the first time he learned that Randolph had introduced buyers to Foley, packaged marijuana for distribution, and actively associated with gang members was *7 when Randolph testified at the first trial. Excerpts from Randolph’s testimony at the first trial were read aloud to the jury.
Randolph again took the stand in his own defense. He testified that he had joined the Folk Nation gang for self-protection years ago while he was in prison in Tennessee, but was no longer an active gang participant. Randolph moved to Georgia in 2005, lived with relatives, and worked a variety of jobs. He testified that one day he was playing basketball and wearing a tank top that revealed his tattoos when some men recognized the tattoos, approached him, identified themselves as members of Folk Nation, and asked if Randolph was also affiliated with the gang. Randolph said that he told the men he was “retired.” Randolph encountered the men again later, and they asked him, “[Y]ou know anybody who got some bud because we can’t find any.” At that point – two months before Foley’s murder – Randolph arranged a meeting between Foley and the men. Randolph claimed that he did not know the men well and did not regularly associate with them. Randolph also claimed that he believed the men were “just weed smokers just like me” who wanted small quantities of marijuana for personal use; “they weren’t buying for the gang.” According to Randolph, the men “just happened to be gang members. But this wasn’t like you’re buying five or ten pounds for the gang . . . to make money off of it. . . . [T]his wasn’t a gang issue.”
After the close of the evidence, the trial court instructed the jury that Randolph had raised a double jeopardy defense, that his prosecution would be barred if the crimes charged in the second indictment were known to the proper prosecuting authority at the commencement of the first trial, and that the jury had to decide “what facts the prosecutor knew” at that time. The jury was given a special verdict form asking if “any or all o[f] this prosecution is barred by Double Jeopardy.” After deliberating, the jury answered the question in the negative and found Randolph guilty on all four counts. For the purpose of sentencing, the trial court merged counts one and two with count three and sentenced Randolph to ten years on the drug crimes and fifteen years on the gang crime, to run consecutively. Randolph filed a motion for new trial, which the court denied. This timely appeal followed.
1. Randolph contends that the trial court erred by denying his motion to dismiss
the indictment on procedural double jeopardy grounds. “The procedural aspect of the
double jeopardy rule prohibits multiple prosecutions arising from the same conduct.”
White v. State
, 284 Ga. App. 805, 806 (644 SE2d 903) (2007) (citation and
punctuation omitted). OCCGA § 16-1-7 (b) requires the state to prosecute crimes in
a single prosecution “[i]f the several crimes arising from the same conduct are known
to the proper prosecuting officer at the time of commencing the prosecution and are
*9
within the jurisdiction of a single court.” “A second prosecution is barred under
OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first
prosecution under OCGA § 16-1-7 (b).”
Nicely v. State
,
To prevail upon his motion to dismiss, Randolph bore the burden of showing
that the prosecutor had actual knowledge before the first prosecution of the facts
supporting the charges in the second prosecution. Id.; see also
Billups v. State
, 228
Ga. App. 804, 807 (1) (b) (
At the second trial, the state presented evidence that before the first trial, the only information it had about Randolph’s involvement in marijuana distribution was witness statements that he had previously bought small quantities of marijuana from Foley and had arranged, along with two other men, to buy a pound of marijuana from Foley on the morning of the murder. [3] These witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that Randolph had committed the crimes of conspiring to distribute marijuana and distributing marijuana. With regard to the gang crime, there was evidence that the state knew only that Randolph had joined a gang years before, not that he was currently involved in drug-related gang activity. Under these circumstances, the trial court did not err by *11 denying Randolph’s motion to dismiss on double jeopardy grounds. [4]
2. Randolph argues that the trial court erred by denying his motion to dismiss based on selective prosecution because he was “the only one prosecuted for a drug offense after the murder trial of Ryan Foley” even though the evidence at the first trial showed that many other witnesses had committed drug crimes. Even assuming these factual assertions are accurate, [5] Randolph failed to establish a claim of selective prosecution.
A defendant has the burden of proving, by the weight of the evidence, that his prosecution represents an intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification. A *12 showing that others were not prosecuted for doing what the defendant allegedly did is not, in itself, sufficient to establish selective prosecution.
Mooney v. State
,
3. Randolph asserts that the state failed to prove venue in Camden County because there was no testimony to establish the location of the store where he introduced Foley to the other gang members. This claim of error lacks merit, as Dial testified that the store was in Camden County.
4. Randolph maintains that there was insufficient evidence to support his conviction for violating the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. Because the state failed to present evidence that Randolph’s marijuana distribution crimes were intended to further the interests of the gang, we agree.
The Georgia Street Gang Terrorism and Prevention Act prohibits a person
associated with a criminal street gang from participating in criminal street gang
activity through the commission of a number of listed offenses. OCGA § 16-15-4 (a).
*13
“Criminal street gang” is defined as “any . . . group of three or more persons
associated in fact, whether formal or informal, which engages in criminal gang
activity[.]” OCGA § 16-15-3 (2). “Criminal gang activity,” in turn, is defined as “the
commission, attempted commission, conspiracy to commit, or solicitation, coercion,
or intimidation of another person to commit” any of a number of offenses, including
“racketeering activity.” OCGA § 16-15-3 (1) (A). “Racketeering activity” includes
violations of the Georgia Controlled Substances Act. OCGA § 16-14-3 (5) (A)
(xxxiv). It is not enough, however, for the state simply to show that the defendant and
other gang members committed a criminal act; rather, “there must be some nexus
between the act and an intent to further street gang activity.”
Rodriguez v. State
, 284
Ga. 803, 807 (1) (
Thus far, we have uniformly rebuffed challenges that there was insufficient
evidence of the requisite nexus between the crime and an intent to further gang
interests. Our case law has supplied no test, guidelines, or list of factors relevant to
determining whether the commission of a predicate crime was meant to “further the
interests of the gang,”
Jones
,
In
Zamudio v. State
,
a nexus between the defendant[‘s] actions in seeking out and beating up the victim and [his] intent to further gang activity by ensuring that the gang responded strongly to the victim’s disrepect of a gang member’s offer of association.
Id. at 43 (2) (b).
Similarly, in
Alston v. State
, 329 Ga. App. 44, 46-47 (1) (763 SE2d 504)
(2014), we held that evidence that the defendant and two fellow gang members wore
gang colors to “represent” and talked about their gang affiliation moments before
committing an armed robbery was sufficient to demonstrate a nexus between the
*15
crime and an intent to further gang activity. In addition, the state presented evidence
that after the crime, one defendant wrote a letter acknowledging that he had violated
gang rules by implicating his fellow gang members in the crime, and there was expert
testimony that “the gang’s reputation is furthered by committing highly visible crimes
in a manner which allows the witnesses and the victims to discern that a particular
gang committed the crime.” See also
Morey v. State
,
Here, the state’s case against Randolph rested almost entirely on his sworn testimony in the first trial, which was read aloud to the jury. That former testimony showed that Randolph, who was a member of Folk Nation, had introduced Foley, who was not affiliated with a gang, to a variety of other people – some gang-affiliated and some not – and had helped Foley distribute small amounts of marijuana to those *16 people. Thus, while the state may have shown that Randolph intended, by distributing marijuana, to further the interests of individual gang members in obtaining small quantities of marijuana for personal use, the state did not show that Randolph meant to further the interests of Folk Nation as an entity. There was no evidence, for example, that Randolph wore gang colors or accessories, talked about his gang affiliation, or otherwise “represented” the gang while he was committing drug crimes. Nor was there any evidence that Randolph’s distribution of personal-use amounts of marijuana to individual gang members benefitted the gang itself through monetary profit, enhanced reputation, or other means. Because the state failed to present evidence of the necessary nexus between Randolph’s drug crimes and an intent to further gang interests, his conviction under the Georgia Street Gang Terrorism and Prevention Act must be reversed.
5. Randolph maintains that the trial court erred by failing to merge his sentence for the drug crimes with his sentence on the gang crime. In light of our ruling in Division 4, we need not reach this issue.
Judgment affirmed in part and reversed in part. Andrews, P. J., and Miller, J., concur.
Notes
[1] See
Falay v. State
,
[2] Wessinger later testified that he did not know who was in the car.
[3] In his appellate brief, Randolph also refers to a statement that Dial took
during the murder investigation from a Mr. Griffith or Griffin, who supposedly
implicated Randolph in marijuana distribution. Randolph provides no citation to the
statement, and it does not appear to be part of the appellate record. Therefore, we are
unable to consider it. See
Parker v. State
,
[4] Although the state does not raise this argument on appeal, we question
whether the drug charges in the second indictment arose from the same conduct as the
charges in the first indictment. In determining whether multiple offenses arose from
the same conduct, courts should consider whether they involved the “same parties,
circumstances, locations, and times.”
Morgan v. State
,
[5] The record in this appeal does not contain the transcript from the first trial, and Randolph has cited no evidence to substantiate his assertion that no one else was prosecuted for drug crimes.