Opinion
A10A1050
DECIDED: NOVEMBER 24, 2010
The underlying procedural history relevant to this appeal is undisputed. On March 24, 2009, the Fulton County Grand Jury returned a multi-count indictment against twelve defendants; Count 1 of the indictment charged the defendants with participating in criminal street gang activity in violation of OCGA § 16-15-4 "for the accused, . . . on and between January 1, 2007 and June 8, 2008 did unlawfully, while associated with a criminal street gang, known as 30 Deep participate in such criminal street gang activity [by committing certain predicate offenses]." The defendants filed general and special demurrers to the indictment, with subsequent amendments, moving to quash Count 1. Defendants argued that, among other things, the indictment failed to allege when "30 Deep" became a criminal street gang as defined by OCGA § 16-15-3—2 and failed to adequately give the offense date, which they asserted prevented them from presenting their defenses, including their contention that certain enumerated offenses occurred prior to the formation of "30 Deep" as a criminal street gang. The trial court held a hearing on defendants' motions and demurrers, during which the State opposed the demurrers. Following the hearing, the trial court granted the special demurrer as to Count 1 of the indictment and quashed that count, finding that the date the gang formed was a material element of the crime of participating in criminal street gang activity and that the State was required to, but had failed to, allege that the gang existed, even for a short period, prior to the commission of the enumerated offenses. The trial court further found that even if the indictment sufficiently alleged the gang's existence prior to the commission of the enumerated crimes, the indictment nevertheless did not comply with OCGA § 17-7-54 because the State had failed to respond to defendants' special demurrers by alleging a specific date on which the gang came into existence or existed prior to the alleged occurrence of the enumerated offenses and offered no evidence demonstrating that such a date could not be specifically identified. The State appeals.
Although the facts here are undisputed, this Court is troubled by the dearth of citations in the State's brief on appeal, making it necessary for this Court to search the record to find the pertinent motions and rulings.
The defendants named in the indictment were Marquez Deonte Hood, Slyricus Winder, Kendarious Glover, Undra Bradley, Charles Dunn, Anthony Maurice Johnson, Deyancious Lewis, Kenny Redding, Willie Wilson, Johntavious Bailey, Barry Dean Smith, and Rodriquez Wheeler.
The provisions of the Georgia Street Gang Terrorism and Prevention Act are contained at OCGA § 16-15-1 et seq.
Although the record before us does not include all the demurrers that were apparently filed, it appears from the hearing transcript that all defendants either filed their own motions and demurrers or joined in the demurrers filed by other defendants.
According to the trial court's order, the State did not file a written response to the motions and demurrers.
Both the DeKalb County District Attorney and the Georgia Gang Investigators Association have filed amicus briefs in support of the State's appeal.
As noted above, defendants in this case filed both general and special demurrers. A general demurrer challenging the sufficiency of the substance of the indictment is appropriate when the indictment is "[f]atally defective and incapable of supporting a conviction." State v. Delaby, 298 Ga. App. 723, 724 ( 681 SE2d 645) (2009). See also Bramblett v. State, 239 Ga. 336, 337 (1) ( 236 SE2d 580) (1977). "The true test of the sufficiency of the indictment to withstand a general demurrer . . . is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. [Cit.]" Adams v. State, 293 Ga. App. 377, 381 (3) ( 667 SE2d 186) (2008).
"[A] special demurrer challenges the sufficiency of the form of the indictment. [Cit.]" Bramblett, 239 Ga. at 337 (1). In that case, the defendant claims that the indictment is "[i]mperfect as to form or that the accused is entitled to more information." Delaby, 298 Ga. App. at 724. When technical defects in the indictment are timely raised, "[t]he defendant is entitled . . . to have a perfect indictment in form as to the essential elements of time and place." Johnson v. State, 233 Ga. App. 450, 450-451 (1) ( 504 SE2d 290) (1998). Indictments that do not allege a specific date on which the crime was committed are not perfect in form and are subject to a timely special demurrer. Moore v. State, 294 Ga. App. 570, 576 (2) ( 669 SE2d 498) (2008). "However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates." State v. Layman, 279 Ga. 340, 341 ( 613 SE2d 639) (2005). To that end, the State must be given the opportunity to present evidence concerning whether the offense dates are capable of being more specifically stated. Moore, 294 Ga. App. at 576-577 (2). But "[w]here the State [is] reasonably capable of narrowing the range of dates alleged in the indictment, it must do so." State v. Layman, 279 Ga. at 341.
The trial court also noted in its order that the State did not challenge the timeliness of the demurrers.
We review rulings on special demurrers de novo. State v. Pittman, 302 Ga. App. 531 ( 690 SE2d 661) (2010). Moreover, we do not conduct a harmless error analysis to determine if the accused has actually been prejudiced by the lack of a specific date in the indictment when we review an indictment before trial. State v. Gamblin, 251 Ga. App. 283, 284 (1) ( 553 SE2d 866) (2001). "[R]ather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance." State v.Delaby, 298 Ga. App. at 724.
Against this backdrop, we turn to the issues presented here. The State enumerates two errors, contending that the trial court erred by requiring the indictment to allege that a criminal street gang existed prior to the commission date of any of the enumerated offenses and that it erred in requiring the indictment to allege a specific date on which the criminal street gang came into existence. Although the State has failed to group its arguments in a manner which clearly corresponds to these enumerated errors, we will consider these contentions together since they bear an obvious relation to each other.
Whether it was necessary for the indictment to allege that "30 Deep" existed prior to the commission of the enumerated offenses depends on whether the date "30 Deep" existed or came into existence is an essential element of the crime of participation in criminal gang activity. We look to the recent decision in Rodriguez v. State, 284 Ga. 803 ( 671 SE2d 497) (2009), in which our Supreme Court construed various provisions of the Anti-Gang Act and upheld its constitutionality, for guidance in answering this question. As is pertinent here, the Court in Rodriguez held that the Anti-Gang Act requires that: 1) the defendant actively participated in an illicit street gang, which is defined in OCGA § 16-5-3 (2) as any group of three or more people associated in fact that "engages in criminal gang activity; " 2) the defendant committed at least one predicate act enumerated in OCGA § 16-15-3 (1); and 3) there is a nexus between defendant's commission of the predicate act and an intent to further the gang activity. Rodriguez, 284 Ga. at 806-807 (1). Significant to our analysis, the Court expounded on the definition of the word "engages" as found in OCGA § 16-15-3 (2), stating that "[a]lthough the `criminal street gang' may have existed for a short time, its `criminal gang activity' or plans for continuation of that activity must be ongoing at the time of the defendant's commission of an enumerated offense." Id. at 808-809 (2). Thus, although not directly addressed in Rodriguez, we glean from that opinion that the existence of an ongoing gang, even for a short time prior to commission of a predicate act, is an essential element of the crime of participation in criminal street gang activity.
Pursuant to OCGA § 16-15-3 (1), "criminal gang activity" means the commission, attempted commission, or conspiracy to commit any enumerated offense, as well as the solicitation, coercion, or intimidation of another person to commit such offenses on or after July 1, 2006.
As the amicus brief points out, the statute does not make it illegal to be a member or associate of a criminal street gang. Rodriguez, 284 Ga. at 810 (4) ("mere association" with a criminal street gang is insufficient.).
In this case, the indictment accused the defendants of participating in criminal street gang activity "for the said accused, . . . on and between January 1, 2007 and June 18, 2008, did unlawfully, while associated with a criminal street gang, known as 30 Deep participate in such criminal street gang activity to wit:. . . ." The State argues that this language, taken as a whole, and "viewed in the context of the specific predicate acts alleged in Counts 2 through 16, dating from February 4, 2008 to June 18, 2008," sufficiently states the essential elements of the offense. Although the indictment did not specifically allege that the gang was in existence, prior to the commission of the first enumerated crime, and did not allege a specific date on which the gang came into existence, we find that giving a range of dates during which all of the enumerated offenses allegedly occurred, coupled with the language "while associated" with a criminal street gang, sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses.
Although the defendants argue in their briefs on appeal that because the State referenced OCGA § 16-15-4 without specifying a particular subsection, they must be prepared to defend against all the activities prohibited in that section, with the result that the indictment must also allege certain other dates. However, a clear reading of the indictment shows that defendants were charged only under subsection (a) of OCGA § 16-15-4, and we will confine our analysis accordingly.
However, in this case the defendants specially demurred, contending that the date the gang came into existence must be stated with more specificity, especially in light of their defense that the gang did not yet exist when at least some of the predicate offenses were committed. Because the defendants put the date the gang came into existence into issue as part of their defense, the exact date the gang was formed became material. Thus, it was incumbent upon the State to either state that date with more particularity or show why it was not reasonably capable of narrowing the range of dates set forth in the indictment. Bollinger v. State, 272 Ga. App. 688, 693 (3) ( 613 SE2d 209) (2005) ("[a] date is material if it is an essential element of the charged offense or if a defense, such as alibi, is asserted that makes the date of the offense material.").
The State argues in its brief on appeal that "it is manifest that the State cannot reasonably narrow the range of dates of an on-going conspiracy," that the date range refers to the time when the police were able to identify crimes as committed by "30 Deep" members and "there has been no evidence showing that this range of dates could be reasonably narrowed,. . . ." However, taking the last point first, it was not the defendants' burden to show that the range of dates could be reasonably narrowed but the State's burden to show that it could not. E.g., State v. Gamblin, 251 Ga. App. at 283-84. Moreover, we have reviewed the transcript from the hearing, including the specific transcript citation contained in the State's brief, and find no reference to the date range corresponding to the time when the police were able to identify crimes committed by the illicit gang.
The only reference to the police that we find in the transcript was at another point in the hearing where the prosecutor stated that the State planned to present testimony at trial from police officers who were experts in identifying gang members that the gang "30 Deep" does in fact exist. However, no mention was made of the police identifying a range of dates.
What the hearing transcript does disclose is that the trial court explained to the prosecutor that because the defendants had specially demurred seeking the information, the State was required to either provide an exact date or present evidence as to why it could not. The transcript further discloses that when specifically questioned by the trial court as to a specific date the gang came into existence, the prosecuting attorney asked the court to defer that issue. When the court returned to that issue, the prosecuting attorney merely made a general analogy to child molestation cases, arguing that the State did not have to show an exact date and made no other attempt to show why it could not provide more specific information about when the gang came into existence. However, this analogy is unavailing to the State. As stated above, in cases involving timely special demurrers filed on the ground that the indictment fails to set forth a specific date of the offense, the State must either show the exact date of the offense or show why it cannot determine the exact date of the offense from the evidence, and this is true even for indictments alleging child molestation. Gamblin, 251 Ga. App. at 283-284 (1). Although we are mindful that in most cases of this type it may not be possible for the State to show an exact date the criminal street gang came into existence, it is nevertheless incumbent upon the State to make some showing as to why it can not determine that date. Ultimately, "[w]hile the state may in fact be unable to pinpoint the particular dates of the alleged crimes, we cannot speculate about such a matter. Instead, we, like the trial court, are bound by the record before us. And absent some showing by the state that its evidence does not permit it to identify the exact dates [the gang came into existence,] we must conclude that the indictment counts in question are imperfect and thus subject to special demurrer." Id. at 284 (1). The trial court's order is thus affirmed. Judgment affirmed. Smith, P. J., and Mikell, J., concur.
As the State and amicus briefs point out, criminal street gangs do not file articles of incorporation or otherwise make outward legal manifestations of their existence. But it does not necessarily follow that the State would never be able to pinpoint with exactness the date the gang was formed.
The State also contends that the demurrer was a "speaking" demurrer and thus should not have been sustained. See State v. Givens, 211 Ga. App. 71, 71-72 ( 438 SE2d 387) (1993). However, the State has waived this argument by failing to raise it below. State v. Corhen, ___ Ga. App. ___ (slip op. at (1)) (Case No. A10A1600, decided September 15, 2010).