McKinney v. State

899 S.E.2d 121

MCKINNEY

v.The STATE.

S23G0448

Supreme Court of Georgia.

Decided: March 5, 2024

Michael S. Katz, Attorney At Law, 150 East Ponce de Leon Avenue, Suite 250, Decatur Georgia 30030-1322, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta Georgia 30334, Michael Scott Carlson, AD.A., Bruce Patilloch Dutcher, AD.A., Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Jayna Edwards, Senior A.D.A., Fulton County District Attorney’s Office, 136 Pryor Street SW, Third Floor, Atlanta Georgia 30303, Elizabeth Rosenwasser, Assistant Attorney General, Department of Law, 40 Capital Square, Atlanta Georgia 30303, Christopher David Sperry, Clayton County District Attorney’s Office, 9151 Tara Boulevard, 4th Floor, Jonesboro Georgia 30236, for Appellee.

John Stuart Melvin, District Attorney, Cobb County District Attorney’s Office, 70 Haynes Street, Marietta Georgia 30090, Jeffrey T. Wennar, 4800 N Paseo Sonoyta, Tucson Arizona 85750, Christopher Mark DeNeve, A.D.A., Gwinnett County District Attorney’s Office, 75 Langley Drive, Lawrenceville Georgia 30046, for Amicus Appellee.

Peterson, Presiding Justice.

We granted defendant Jerrion McKinney’s petition for certiorari to consider the proper construction of an evidence rule, OCGA § 24-4-418 ("Rule 418"), that in prosecutions under the Georgia Street Gang Terrorism and Prevention Act (OCGA § 16-15-1 et seq., hereinafter "Georgia’s Gang Act") permits the admission of evidence that the defendant has engaged in any one of a host of other acts listed in Georgia’s Gang Act. The Court of Appeals in this case concluded that Rule 418 does not require that there be some "nexus" between the other act "and an intent to further gang activity." State v. McKinney, 366 Ga. App. 251, 257-258 (2), 881 S.E.2d 699 (2022). But the Court of Appeals also concluded that evidence otherwise admissible under Rule 418 remains subject to analysis under OCGA § 24-4-403 ("Rule 403"). See McKinney, 366 Ga. App. at 258-259 (3), 881 S.E.2d 699. We agree on both points and affirm the judgment of the Court of Appeals.

In August 2021, a Fulton County grand jury issued a 37-count indictment against McKinney and Julian Conley. The indictment charged McKinney with twelve counts of violating Georgia’s Gang Act, two counts of aggravated assault, and one count each of possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. The charges stem from the State’s allegations that on July 4, 2020, McKinney and Conley participated in an "armed takeover" of an area of Atlanta, placing barricades in the roadway and prohibiting others from passing. The charges against Conley, who is not a party to this appeal, include murder for the shooting death of eight-year-old Secoriea Turner.

At issue in this pre-trial appeal is the State’s attempt to introduce evidence of other acts by McKinney through Rule 418. Rule 418 (a) provides:

In a criminal proceeding in which the accused is accused of conducting or participating in criminal gang activity in violation of Code Section 16-15-4, evidence of the accused’s commission of criminal gang activity, as such term is defined in Code Section 16-15-3, shall be admissible and may be considered for its bearing on any matter to which it is relevant.

The rule also contains a notice requirement. See OCGA § 24-4-418 (b). And it provides that the rule "shall not be the exclusive means to admit or consider evidence described" therein. OCGA § 24-4-418 (c). OCGA § 16-15-3, referenced in Rule 418, is the definition section for Georgia’s Gang Act. OCGA § 16-15-3 enumerates certain offenses the commission of which constitutes "criminal gang activity." See OCGA § 16-15-3 (1), (2), OCGA § 16-15-4, also referenced in Rule 418, makes various forms of criminal gang activity additional separate crimes; for instance, subsection (a) provides that "[i]t shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3."

In McKinney’s case, the trial court considered the State’s request to introduce evidence of the following three other acts under Rule 418: (1) a May 2015 incident in which McKinney took a stolen firearm to his school and pointed it at a classmate’s head; (2) a February 2016 incident in which McKinney shot himself in the foot with a firearm and then hid the gun in nearby bushes, claiming he had been the victim of a drive-by shooting; and (3) an April 2017 incident in which McKinney robbed two victims at gunpoint. The State argued to the trial court essentially that evidence of the commission of any offense included in the definition of "criminal gang activity" in OCGA § 16-15-3 would be admissible under Rule 418, irrespective of whether there was evidence that the defendant was associated with a particular gang at the time of the offense or that the offense was committed in furtherance of a gang’s interests. Based on the State’s proffer, the trial court entered an order concluding that evidence of the April 2017 robbery incident was admissible but evidence of the May 2015 school incident and the February 2016 shooting incident was not.¹ In its order, the trial Court relied upon this Court’s decision in Rodriguez v. State, 284 Ga. 803, 671 S.E.2d 497 (2009), in which we construed a prior version of OCGA § 16-15-4 (a) as requiring a nexus between the defendant’s act and an intent to further a gang’s purposes. Reading Rodriguez to establish "the necessity of reading the various sections of [Georgia’s Gang Act] in conjunction with one another," the trial court concluded that "in reading OCGA § 24-4-418 and its reference to OCGA §§ 16-15-3 and 16-15-4 and those statutes in conjunction with one another that a nexus between the prior act and an intent to further gang activity must be established for the evidence to be admissible under OCGA § 24-4-418 in this case."

The State appealed, arguing that the trial court abused its discretion by excluding some evidence of McKinney’s prior gang activity, because the plain language of Rule 418 does not require the State to show a connection between a gang and the other act. A panel of the Court of Appeals reversed in part and remanded in part. See McKinney, 366 Ga. App. at 251, 881 S.E.2d 699. The Court of Appeals agreed with the State that the evidence of criminal gang activity admissible under Rule 418 "is that activity defined in OCGA § 16-15-3." Id. at 257 (2), 881 S.E.2d 699. The Court of Appeals wrote that "[o]n its face, the statute does not require a nexus between a defendant’s commission of the predicate act and an intent to further the gang activity[.]" Id. at 257-258 (2), 881 S.E.2d 699. The Court of Appeals concluded that Rodriguez had "no bearing on the issue" presented in this case, because Rodriguez "was interpreting only the definition of the crime found in OCGA § 16-15-4, not the language found in OCGA § 16-15-3 or Rule 418[,]" and "Rule 418 contains no such language similar to that found in OCGA § 16-15-4[.]" McKinney, 366 Ga. App. at 258 (2), 881 S.E.2d 699. The court concluded:

Given the plain language of Rule 418, the trial court must find, prior to admitting the proffered evidence, that the conduct alleged, if proven, would constitute a violation of one of the listed statutes in OCGA § 16-15-3 or the commission of one of the crimes specified in OCGA § 16-15-3. It does not require the trial court to find any nexus between the alleged conduct and an intent to further gang activity.

Id. The Court of Appeals therefore determined that the trial court erred in excluding the other acts on the basis that they did not fall within Rule 418, although the Court of Appeals remanded for the trial court to consider whether the acts should be excluded under Rule 403. See id. at 258-259 (2)-(3), 881 S.E.2d 699. We granted McKinney’s petition for certiorari.

[1] McKinney appears to argue in his brief to this Court that admissibility of evidence under Rule 418 requires a showing that the other act at issue was committed to further the interests of a gang.² We disagree.

[2] "When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant," Deal v. Coleman, 294 Ga. 170, 172 (1) (a), 751 S.E.2d 337 (2013) (citation and punctuation omitted). "To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would." Id. at 172-173 (1) (a), 751 S.E.2d 337 (citations and punctuation omitted).

Starting with the text, Rule 418 by itself contains no requirement of a connection between the other act and gang membership or interests in order for the act to be admissible. Rather, it provides that in gang prosecutions, "evidence of the accused’s commission of criminal gang activity, as such term is defined in Code Section 16-15-3, shall be admissible and may be considered for its bearing on any matter to which it is relevant." OCGA § 24-4-418 (a). OCGA § 16-15-3 defines "criminal gang activity" as a list of specific offenses, stating simply that " ‘[c]riminal gang activity’ means the commission, attempted commission, conspiracy to commit, or the solicitation, coercion, or intimidation of another person to commit" those listed offenses. OCGA § 16-15-3 (1); see also OCGA § 16-15-3 (2). This definition contains no reference to a connection between the offenses and gang association or furthering the interest of a gang.

McKinney argues that the trial court correctly concluded that, consistent with Rodriguez, Rule...