Dunn v. State

312 Ga. 471

863 S.E.2d 159

DUNN

v.The STATE.

S21A0761

Supreme Court of Georgia.

Decided: September 21, 2021

Sandra G. Dawson, The Law Office of Sandra Dawson, LLC, 166 Anderson Street, Suite 100, Marietta, Georgia 30060, Sylvia Goldman, Goldman & Donnelly Law Firm, 272 Washington Avenue, Marietta, Georgia 30060, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Leslie Anna Coots, Assistant Attorney General, Matthew David O'Brien, Assistant Attorney General, Department of Law, Christopher M. Carr, Attorney General, Office of the Attorney General, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Michael Scott Carlson, General Counsel, Georgia Bureau of Investigation, 3121 Panthersville Rd, Decatur, Georgia 30037-0808, Jesse David Evans, Chief A.D.A., Paulding County District Attorney's Office, 280 Constitution Blvd., #2702, Kennesaw, Georgia 30152-6433, Flynn Duncan Broady, Jr., Amelia Greeson Pray, A.D.A., Samuel Richard d'Entremont, A.D.A., Cobb County District Attorney's Office, 70 Haynes Street, Suite 300, Marietta, Georgia 30090, for Appellee.

McMillian, Justice.

Darius Jarrell Dunn appeals his convictions for malice murder and other charges in connection with the shooting death of Anthony Tavarez. Dunn asserts on appeal that the evidence at trial was insufficient to support his conviction for a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA §§ 16-15-1 et seq. (the "Gang Act"). He also argues that the trial court abused its discretion in admitting alleged bad character evidence and allegedly irrelevant and prejudicial video evidence. Finally, Dunn contends that he received constitutionally ineffective assistance of counsel because his trial counsel did not seek to redact the State's exhibits to exclude allegedly irrelevant and prejudicial bad character evidence. Discerning no merit to these contentions, we affirm.¹

Construed in favor of the jury's verdict, the evidence at trial showed that Dunn, who was a member of a gang known as the "Gangster Disciples" (the "GD"), engaged in a physical altercation on September 16, 2015, with an individual known as "Quan," who was affiliated with a gang called the "Bloods." This altercation occurred at an apartment complex in Cobb County and ended when police were reported to be in the vicinity. At around the same time as the altercation, Tavarez and Darius Crenshaw-Griffin were shooting dice in front of a nearby breezeway. Neither man was involved in the fight between Dunn and Quan, nor were they affiliated with Dunn, the GD, or the Bloods.

Melvin William Evans and Joshua Raphal Gore, Dunn's co-indictees and fellow GD members, testified that they left the apartment complex with Dunn after the altercation ended. Dunn was upset and talking about getting back at Quan and the Bloods. The three men went to a nearby residence, where Dunn retrieved a rifle and a handgun, and then returned to the apartment complex about ten to fifteen minutes later. Evans and Gore testified that Dunn was still upset and agitated about his altercation with Quan and wanted to confront the Bloods. When they drove back to the scene of the fight, Dunn and Evans got out of the car while Gore waited inside. Dunn was armed with the handgun, and Evans was carrying the rifle, but Quan and the others from the earlier altercation were gone.

Tavarez and Crenshaw-Griffin, however, were still in front of the breezeway shooting dice. Dunn and Evans approached the two men, forced them inside the breezeway, and demanded their money. At the time, Tavarez had approximately $1,500 on his person and Crenshaw-Griffin had $500. When Tavarez refused to surrender his money, Dunn grabbed Tavarez's pocket, eventually ripping it from Tavarez's pants. Tavarez then ran to the rear of the breezeway, and both Dunn and Evans fired their weapons and fled. After police officers arrived on the scene, they discovered Tavarez's body lying at the rear of the breezeway, his pants pocket on the ground inside the breezeway, and only $375.01 on his person. Ballistic testing later showed that a bullet fired from Evans's rifle hit Tavarez in the back, and the medical examiner testified that this injury caused Tavarez's death.

An inmate, with whom Dunn was incarcerated after his arrest, testified that Dunn admitted he was a Gangster Disciple and that he had decided, along with his fellow gang members, to rob Tavarez because of a gambling-related incident that had occurred earlier between other GD members and Tavarez. On the day of the altercation, Dunn said he had received a call about a "beef" some members of another GD sect had with Tavarez over an earlier dice game. According to Dunn, Tavarez won the dice game but refused to give Dunn's cohorts the opportunity to win their money back, although it was the usual practice to do so. The inmate said that Dunn "spoke about the respect they had for [Dunn] in his area," explaining that Dunn said "whenever somebody called him – and they would call him – if he came out, his time was valuable, so someone is going to get it." Dunn admitted that he had robbed Tavarez at gunpoint, ripped his pocket, and subsequently shot at him.

At trial, the State presented two experts on criminal street gangs, who testified that the GD was such a gang and that Dunn had several tattoos depicting signs and symbols associated with the GD, which led them to conclude that Dunn was a member of the gang. They also identified Facebook pictures of Dunn, in which he was wearing GD colors and making hand-signs associated with the GD. With the stated intent of demonstrating the existence of a criminal street gang and related gang activity, the State further introduced Dunn's prior convictions for attempted burglary, theft by taking, and a violation of the Georgia Controlled Substances Act (marijuana possession), as well as a YouTube video purporting to depict GD symbols and signs and to reflect the presence of the GD in Georgia, although Dunn did not appear in the video.

1. Dunn first argues that the evidence was insufficient to support his conviction for violating the Gang Act.² In considering Dunn's argument,

we view all of the evidence admitted at trial in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which [he] was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Menzies v. State , 304 Ga. 156, 159-60 (II), 816 S.E.2d 638 (2018). "Our limited review under the standard set out in Jackson leaves to the jury the resolution of conflicts in the testimony, the weight of the evidence, the credibility of witnesses, and reasonable inferences to be made ‘from basic facts to ultimate facts.’ " Id. at 160, 816 S.E.2d 638 (citations omitted).

Dunn was charged with a violation of the Gang Act under Count 10 of the indictment, which alleged that he participated in criminal gang activity through the commission of "a crime of violence and an offense involving the possession and use of a weapon, to wit: Armed Robbery and Aggravated Assault." Dunn asserts that the State failed to show that those offenses were related to gang activity as required under OCGA § 16-15-4, and not based on some other motive such as greed.

To establish a violation of the Gang Act, the State must show:

(1) the existence of a "criminal street gang," defined in OCGA § 16-15-3 (3) as "any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity"; (2) the defendant's association with the gang; (3) that the defendant committed any of several enumerated criminal offenses, including those "involving violence, possession of a weapon, or use of a weapon"; and (4) that the crime was intended to further the interests of the gang.

Butler v. State , 310 Ga. 892, 896-97 (1) (b), 855 S.E.2d 551 (2021) (citation and punctuation omitted). The fourth element requires that the State prove "some nexus between the act and the intent to further street gang activity." Id. See also Rodriguez v. State , 284 Ga. 803, 807 (1), 671 S.E.2d 497 (2009). This nexus can be established by proof of the defendant's association with a gang and participation in its activities before and during the crimes charged. See Hayes v. State , 298 Ga. 339, 343 (a), 781 S.E.2d 777 (2016). Dunn does not dispute that the evidence sufficiently proved the first three elements of the crime but instead focuses on the fourth element.

Here, the evidence showed that the shooting occurred after Dunn returned to the location of an altercation that occurred a short time earlier between the GD and the Bloods. When he discovered that the Bloods had left the area, Dunn approached Tavarez to demand money at gunpoint. Dunn later told his fellow inmate that, as a respected GD member, Dunn was called to assist other gang members and, when he came out, someone was "going to get it." Dunn told the inmate that Dunn had been called on the day of the altercation to respond to a gambling incident involving Tavarez and other GD members. In response to his fellow gang members’ call, Dunn, along with the other GD members with him, decided to rob Tavarez, which led to the shooting. In addition, one of the State's gang experts testified that maintaining respect is important to gang members, as is getting revenge for perceived disrespect, and that aggravated assault and armed robbery were the types of gang-related offenses committed by the GD.

We conclude that, when viewed in the light most favorable to the verdict, the evidence at trial was sufficient to support Dunn's conviction for violation of the Gang Act. The jury was authorized to weigh the evidence and to credit the testimony of Dunn's fellow inmate that Dunn said he was acting at the behest of other GD members, as he had at other times...