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State v. Jefferson

Supreme Court of Georgia

October 30, 2017



         On June 4, 2015, Brenton Jefferson, his brother Santez Jefferson, Demarcus Cawthorne, Jamal Arnold, and Lee Davis (collectively "Appellees") were charged with, among other things, attempted murder, aggravated battery, kidnapping, and violations of the Georgia Street Gang Terrorism and Prevention Act (OCGA § 16-15-1 et seq.). In connection with the State's efforts to build a case against Appellees, the State gave notice of its intention to introduce into evidence at trial four certified copies of convictions relating to various gang members[1] pursuant to OCGA § 16-15-9.[2] That statute, as amended, provides:

For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16-15-3 [criminal gang activity][3] by any member or associate of a criminal street gang shall be admissible in any trial or proceeding. Evidence offered under this Code section shall not be subject to the restrictions in paragraph (22) of Code Section 24-8-803.[4]

         On August 18, 2016, Santez filed a "Motion in Limine to Declare OCGA § 16-15-9 Unconstitutional and to Bar the Introduction of Third Party Convictions, " arguing that the statute on its face violates the Confrontation Clause of the United States Constitution. Arnold filed an identical motion in limine on September 9, 2016, and the remaining Appellees adopted the motion at the September 19, 2016 hearing on the matter.

         On September 23, 2016, the trial court entered an order finding that the admission of the third party convictions and the prior conviction of Cawthorne in the Appellees' trial would violate their Sixth Amendment rights to confront the witnesses against them. See Kirby v. United States, 174 U.S. 47 (19 S.Ct. 574; 43 LE 890) (1899) (An attempt by the United States to introduce certified copies of convictions of three individuals for theft of government property as evidence in the prosecution of Kirby for being in receipt of that stolen property was improper, as the introduction of such evidence violated Kirby's Sixth Amendment rights). Accordingly, the trial court granted Appellees' motion to declare OCGA § 16-15-9 unconstitutional, and excluded the use of any of the third party convictions against the Appellees.[5]

         The State appeals from this ruling, and, for the reasons that follow, 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. We therefore affirm the decision of the trial court.

         In reviewing the State's claim that the trial court erred in concluding that OCGA § 16-15-9 is unconstitutional on its face,

we recognize at the outset that all presumptions are in favor of the constitutionality of an Act of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, the burden is on the party alleging a statute to be unconstitutional to prove it.

(Citation and punctuation omitted.) JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 490 (2) (712 S.E.2d 820) (2011). Additionally,

[a] facial challenge "is, of course, the most difficult challenge to mount successfully, " United States v. Salerno, 481 U.S. 739, 745 (II) (107 S.Ct. 2095, 95 L.Ed.2d 697) (1987), because it requires one to establish "that no set of circumstances exists under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications, or at least that the statute lacks a plainly legitimate sweep." Blevins v. Dade County Bd. of Tax Assessors, 288 Ga. 113, 118 (3) (702 S.E.2d 145) (2010) (citation and punctuation omitted).

(Punctuation omitted.) Bello v. State, 300 Ga. 682, 685-686 (1) (797 S.E.2d 882) (2017).

         With these principles in mind, our analysis begins with the Sixth Amendment to the United States Constitution, which states in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend. 6. The United States Supreme Court has recognized for over 100 years that this right of confrontation contained in the Sixth Amendment is "[o]ne of the fundamental guarantees of life and liberty." Kirby, supra, 174 U.S. at 55. And, in this connection, the high Court has established through its ruling in Kirby that a criminal defendant is unconstitutionally deprived of his fundamental right of confrontation when third party convictions are used as a substitute for testimony against that defendant to prove an element of a criminal charge against him. Id. at 61.

         In Kirby, the defendant was accused of theft by receiving stolen property. In order to prove the essential element of the crime that the property received by Kirby had actually been stolen, the prosecution relied on a portion of 18 Stat. 479 - a federal statute which stated that the receiver of the stolen property

may be tried either before or after the conviction of the principal felon [who stole the property in question], but if the party has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against such receiver that the property of the United States therein described has been embezzled, stolen or purloined.

Id. at 48, quoting 18 Stat. 479. Based on this federal statute, the prosecution introduced into evidence the guilty pleas of two individuals and the judgment of conviction of a third who had allegedly stolen the property that was later received by Kirby. However, the high Court concluded that the admission of this evidence to prove an element of the crime for which Kirby had been charged ...

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