Morey v. State

11 FCDR 3496

312 Ga.App. 678

719 S.E.2d 504

MOREY

v.The STATE.Evans

v.The State.

Nos. A11A0787

A11A1342.

Court of Appeals of Georgia.

Nov. 3, 2011.Reconsideration Denied Nov. 18, 2011.Reconsideration Denied Feb. 6, 2012.

Zell & Zell, Rodney Samuel Zell, Atlanta, Lawrence W. Daniel, for appellant (case no. A11A0787).

Louis M. Turchiarelli, for appellant (case no. A11A1342).

Patrick H. Head, Dist. Atty., Amelia Greeson Pray, Jason D. Marbutt, Asst. Dist. Attys., for appellee.ADAMS, Judge.

Claude Morey III and Deandre M. Evans appeal their convictions and sentences arising out of a fight that took place on July 3, 2007 outside the main gate of Six Flags amusement park. Both young men were convicted on counts of aggravated battery, aggravated assault, battery, simple assault, and participating in a criminal street gang. Among other things, they challenge the sufficiency of the evidence, the trial court's ruling on a motion in limine, and the court's finding that they received effective assistance of counsel. The two cases have been consolidated for purposes of appeal.

The evidence presented at trial by the victims shows the following: On July 3, 2007, 18–year–old Devin Carter, a recent high school graduate, and his friends Joshua and Gerald Martin (who are cousins), went to Six Flags to have a good time and to celebrate Devin being accepted into an art school. They rode a Cobb County Transit (CCT) bus to the park, arriving about 1:00 p.m., and they stayed until almost 8:00 p.m. They left via the main entrance/ front gate and planned to ride CCT home. They walked out of the park, to a hotel to use the bathroom, and back toward the CCT bus stop; they eventually sat down on a guardrail to wait for the next bus.

Sitting there, Devin saw a group of 15 to 20 young, black males, dressed in similar clothing—white and black t-shirts and tank tops, some with “flags” on them, exit the front gate and walk past his group. Carter had seen the group earlier in the park. Videotape of the large group leaving the park, including Evans, was shown to the jury; it shows 15 to 20 individuals, many in white t-shirts, walking, running, and jumping as they exit the gate. Devin testified that the large group appeared to be together because they were talking with each other, and they appeared angry because they were loud, rowdy, hyperactive, and cursing. Devin and his cousins did not interact with the large group at that time.

Eventually, Devin and his cousins walked the rest of the way to the CCT bus stop, and when they arrived, the same large group came across the street from the MARTA bus stop and attacked them without provocation. Five or six young men attacked Devin, who was punched in the head, thrown to the ground, and kicked and punched repeatedly. More of the large group focused on Joshua. After one or two minutes of fighting, the large group ran off and jumped on a MARTA bus. Devin got up and saw that Joshua was lying on the ground unconscious and bleeding, with bruises on his face. Two days after the incident, Joshua was still semi-comatose and unable to speak to the detective. He spent a week or two in the hospital and since the incident, he repeats things, is “very slow,” and is paranoid. Gerald was also hit, but he managed to avoid significant injury. The victims were not able to identify the specific people who attacked them.

The State presented evidence from three individuals who confessed and pleaded guilty to being involved in the beating. Willie Franklin testified that he knew he was going to fight the victims fifteen minutes in advance and that he struck one of the victims with brass knuckles that he had received from another member of the group. Franklin testified that he knew both Evans and Morey at the time and that he was with them that day, but he claimed not to know their role in the fight. In a statement to a detective, however, Franklin stated that Morey and Evans were part of the group outside the park, that the group simply chose innocent victims to attack, and that Morey kicked and stomped the victim in the head. He added that he wanted to tell the truth and he wanted to call Morey and tell him to turn himself in. Brandon Forbes admitted that he and others attacked the three boys without provocation. Forbes testified that after Franklin hit Joshua with brass knuckles, the group, which included Evans and Morey, then knocked Joshua to the ground and kicked and stomped on him repeatedly. Jonathan McCoy testified that he hit one of the victims a couple of times. He was with Evans that day but did not remember seeing Evans as part of the fight; he testified that Morey was a part of the group just before the fight began.

Detective Christopher Sperrazza of the Cobb County Police Department investigated the assault. A week after the incident and after Sperrazza read Evans his Miranda rights, Evans waived his rights and gave a statement in which he told the detective that he witnessed the beating but that he had not participated and that he left on the bus. He admitted wearing a white t-shirt and black pants that day.

1. Both appellants challenge the trial court's denial of their motion in limine regarding an incident involving two white families inside the park earlier on the same day and regarding references to a gang. In that incident, a large group of teenage, black males, dressed mostly in white t-shirts, ran full speed by the two families and almost ran into one of their small children. That led to a confrontation between the two fathers and the group, during which members of the group were yelling and making vulgar hand gestures and other unusual hand motions, which the State characterized as flashing gang signs. After the group left, one of the fathers—John Tapp—spoke to security, and the families returned to enjoying the park. But at the end of the day, Tapp saw the same group near the main gate, and he heard someone in the group say, “We'll get you in the parking lot.” When the families exited the park, the young men were standing outside the gate; somebody said, “That's them”; and the group followed the families into the parking lot. The families were able to leave without further incident. Tapp could not identify the appellants as being part of the group, but he was pretty sure it was the same group. The attack on the victims occurred shortly after the two families left.

In their motion, Evans and Morey argued the incident was inadmissible because it happened sometime before the alleged crimes, there was no evidence showing they were involved in the incident with the families, the evidence injected the issue of racial prejudice into the proceedings, and the evidence was so prejudicial that no curative instructions could remove the prejudice from the minds of the jury. Morey also moved that the State not be allowed to mention gang activity. The State proffered that witnesses would testify that Evans and Morey were present for the incident with the families, as well as during the attack on the victims. The State argued that the earlier incident was a part of the res gestae of the crime and that the gang evidence was proper because the case involved charges of participating in illegal gang activities.

The trial court denied the motions, but the court stated that if the State failed to “tie these events together, both in a proximity of time” and also by showing a relationship between the incident with the families and the incident with the victims, including the allegation of gang activity, “the prejudicial effect may be such that it might require further instructions to the jury about what to disregard or to even more serious curative measures.”

“The determination of admissibility under the res gestae exception rests within the sound discretion of the trial court, and this Court will not disturb that determination absent abuse. [Cit.]” Kuykendoll v. State, 278 Ga.App. 369, 371(3), 629 S.E.2d 32 (2006). Andrews v. State, 249 Ga. 223, 228, 290 S.E.2d 71 (1982) (clearly erroneous).

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility must be adopted unless clearly erroneous.

(Citation and punctuation omitted.) Self v. State, 245 Ga.App. 270, 272–273(2), 537 S.E.2d 723 (2000).

During the trial, several of the witnesses testified about the earlier incident, including references to a gang. Following Tapp's trial testimony, which essentially tracked the State's proffer, Forbes testified that as of July 3, 2007, he was a Six Flags employee; that he had been acquainted with Evans, also an employee, for about two months; and he “knew of” Morey, who worked with Forbes's brother in a different division at the park. On the day of the incident, neither Forbes nor Evans was working; rather, they were just hanging out together at the park with 15 or 20 others. Forbes characterized the group as Evans's friends. Evans was wearing a bandana that day that had the letters “YGL” on it, and Forbes asked him what the letters meant. Evans said that “YGL” was a gang and that he was the leader. Others in the group also wore black or white bandanas or t-shirts with “YGL” on them. Forbes thought about 10 to 15 of the young men were in the gang, but he did not believe that Morey was a member. He testified that the letters “YGL” had been spray-painted on the lockers and floor in the employee locker room at the park, and pictures were introduced in support.

Forbes testified that he was present for the verbal altercation with John Tapp and the two families. He testified that a friend of Evans bumped into a child to start the altercation, that Evans took part in the altercation, that Evans was “repping his gang,” and the group was “throwing up their flags”; Forbes did not characterize this activity as flashing...