Summary
The Georgia Supreme Court held that OCGA § 16-15-9 is facially unconstitutional to the extent it permits convictions of non-testifying, non-party alleged gang members to be admitted to prove the existence of a criminal street gang and criminal gang activity. Relying principally on the Sixth Amendment Confrontation Clause and Kirby v. United States, the court concluded that such convictions are testimonial evidence when used to establish facts underlying another defendant’s criminal charges. The court affirmed the trial court’s judgment excluding the convictions.
Topics
Practice areas
Questions Presented
- Whether OCGA § 16-15-9 is facially unconstitutional under the Sixth Amendment to the United States Constitution to the extent it permits admission of convictions of non-testifying non-parties to prove the existence of a criminal street gang and criminal gang activity.
- Whether the third-party convictions could be admitted as non-testimonial business or public records or through the testimony of a gang expert.
Holdings
- OCGA § 16-15-9 is facially unconstitutional, and must be declared void, to the extent it authorizes admission of convictions of non-testifying non-parties as evidence of the existence of a criminal street gang or criminal gang activity against another criminal defendant.
- Third-party convictions introduced under OCGA § 16-15-9 are not transformed into admissible non-testimonial business or public records merely because they are certified records or are presented through a gang expert.
Key quotations
“we conclude that the trial court correctly determined that OCGA § 16-15-9 is unconstitutional on its face to the extent that it authorizes the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang.” (302 Ga. at 437)
“Because OCGA § 16-15-9 on its face deprives criminal defendants of their fundamental right of confrontation in violation of the Sixth Amendment to the United States Constitution, the statute cannot pass constitutional muster and must be declared void to the extent that it authorizes the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang.” (302 Ga. at 443)
Factual background
Brenton Jefferson, Santez Jefferson, Demarcus Cawthorne, Jamal Arnold, and Lee Davis were charged with serious violent offenses and violations of Georgia's criminal gang statutes. The State sought to introduce four certified convictions involving alleged gang members, including three convictions of persons who were not parties to the defendants' case, to prove the existence of a criminal street gang and criminal gang activity. The convictions were based on prior trials or guilty pleas in which the current defendants had no opportunity to cross-examine the witnesses or otherwise test the evidence underlying those convictions.
Procedural history
The defendants were charged with, among other offenses, attempted murder, aggravated battery, kidnapping, and violations of the Georgia Street Gang Terrorism and Prevention Act. The State sought to introduce certified convictions of alleged gang members under OCGA § 16-15-9. The trial court ruled that admission of the third-party convictions would violate the defendants' Sixth Amendment confrontation rights, declared the statute unconstitutional to that extent, and excluded the evidence. The Supreme Court of Georgia affirmed.