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Anthony v. State

Supreme Court of Georgia

March 5, 2018

ANTHONY
v.
THE STATE PASS
v.
THE STATE STROZIER
v.
THE STATE

          Blackwell, Justice.

         Johnathan Anthony, Antonio Pass, and Jekari Strozier were tried by a Cobb County jury and convicted of murder and criminal gang activity in connection with the beating and death of Joshua Chellew. They appeal, each raising several claims of error. Upon our review of the record and briefs, we find no reversible error as to their convictions for murder. We conclude, however, that the convictions for criminal gang activity must be set aside. For the reasons that follow, we affirm in part, reverse in part, and vacate in part.[1]

         Issues Common to All the Appellants

         1. To begin, we consider the sufficiency of the evidence.[2] Viewed in the light most favorable to the verdicts, the evidence shows that, early on the morning of June 30, 2013, Chellew went with a friend to a gas station in Mableton. There, they came across Anthony, Pass, Strozier, and a number of other men. Many of these men - including Anthony, Pass, and Strozier - wore red clothing and were associated with a criminal street gang known as "Re-Up." Chellew was intoxicated, and he waved a blue bandana in sight of the men and started talking about the "Crips" gang. Some of the men approached Chellew, Strozier struck Chellew with his fist, and several others then began to beat Chellew. Anthony, Pass, and Strozier all participated in the beating. As Chellew was beaten, he did not fight back, and he instead retreated from the gas station onto Mableton Parkway. His assailants followed him into the road, and the beating continued until Chellew lost consciousness. His assailants left him unconscious on the darkened roadway, where he almost immediately thereafter was struck by a car and killed. At trial, witnesses testified that Anthony, Pass, and Strozier were among the men who left Chellew lying on Mableton Parkway.[3]

         The appellants were convicted of four crimes, all involving criminal gang activity in violation of the Georgia Street Gang Terrorism and Prevention Act.[4]More specifically, they were convicted of unlawful participation in criminal gang activity through the commission of an affray, unlawful participation in criminal gang activity through the commission of an aggravated assault, unlawful participation in criminal gang activity through the commission of an aggravated battery, and felony murder predicated upon unlawful participation in criminal gang activity through the commission of a simple battery. To sustain these convictions, the State must have proved beyond a reasonable doubt that the appellants were associated with a criminal street gang, that they participated in criminal gang activity, and that they did so through the commission of the underlying crimes of violence. See OCGA § 16-15-4 (a) ("It 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."). See also Jones v. State, 292 Ga. 656, 659-660 (1) (b) (740 S.E.2d 590) (2013); Rodriguez v. State, 284 Ga. 803, 807 (1) (671 S.E.2d 497) (2009). And to sustain the convictions for felony murder, the State also must have proved beyond a reasonable doubt that their unlawful participation in criminal gang activity through the commission of a simple battery was a proximate cause of Chellew's death. See OCGA § 16-5-1 (c). See also State v. Jackson, 287 Ga. 646, 652 (2) (697 S.E.2d 757) (2010).

         When the evidence is viewed in the light most favorable to the verdicts, it is sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that each of the appellants was guilty of unlawful participation in criminal gang activity through the commission of an aggravated assault and an aggravated battery. It also is sufficient to authorize a trier of fact to find them guilty of felony murder predicated upon criminal gang activity involving a simple battery. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). It is not sufficient, however, to sustain the conviction for criminal gang activity involving an affray.

         "An affray is the fighting by two or more persons in some public place to the disturbance of the public tranquility." OCGA § 16-11-32 (a). By definition, an affray involves a fight between willing participants. See Hawkins v. State, 13 Ga. 322, 324 (1853). See also Robert E. Cleary, Jr., Ga. Criminal Offenses and Defenses, Disorderly Conduct Crimes (II) (C) (Affray) (2017 ed.) ("In order to find a violation of [OCGA] § 16-11-32, it must be shown that two willing participants engaged in a fight."). Here, there is no evidence that Chellew willingly fought his assailants, only that he was beaten by them, tried to retreat, and then was beaten some more. The evidence fails to show an affray, and it cannot, therefore, sustain a conviction for unlawful participation in criminal gang activity through the commission of an affray. We reverse the appellants' convictions for criminal gang activity involving an affray.

          2. Although the evidence was legally sufficient to authorize the jury to find the appellants guilty of felony murder predicated upon criminal gang activity involving a simple battery, as well as criminal gang activity involving an aggravated assault and criminal gang activity involving an aggravated battery, we next consider whether the trial court properly convicted the appellants of each of those offenses. Because the jury also found appellants guilty of voluntary manslaughter as a lesser included offense of malice murder, the appellants point to our decision in Edge v. State, 261 Ga. 865 (414 S.E.2d 463) (1992), and say that the trial court should have set aside the verdicts on felony murder and convicted them only of voluntary manslaughter. If, on the other hand, the trial court properly convicted them of felony murder, it erred, they say, when it failed to merge their criminal gang activity into the felony murder.[5] We conclude that Edge does not apply here, and so, the trial court properly convicted the appellants of felony murder. We are persuaded, however, that it erred when it failed to merge the remaining convictions for criminal gang activity into the felony murder.

         (a) In Edge, this Court held that, when a defendant is found guilty of voluntary manslaughter and felony murder premised on an aggravated assault (both arising from the same assault), the defendant should be convicted and sentenced only for voluntary manslaughter. See 261 Ga. at 865 (2). We reasoned that almost every voluntary manslaughter involves a felonious assault, and if a verdict that the defendant was guilty of felony murder premised on aggravated assault were to prevail over a finding that the defendant also was guilty of voluntary manslaughter, it would effectively "eliminate voluntary manslaughter as a separate form of homicide." Id. at 866 (2). We also explained that culpability for an aggravated assault is naturally susceptible of mitigation by the sort of provocation and passion that inheres in voluntary manslaughter. See id. We later extended the rule of Edge to instances in which the felony murder is premised not on aggravated assault, but on another underlying felony that is equally integral to the homicide and susceptible of mitigation by the sort of provocation and passion that voluntary manslaughter involves. See, e.g., Sanders v. State, 281 Ga. 36, 37-38 (1) (635 S.E.2d 772) (2006) (aggravated battery and arson). We have, however, declined to extend Edge any further than that. See, e.g., Clough v. State, 298 Ga. 594, 598 (2) (783 S.E.2d 637) (2016) (burglary); Amos v. State, 297 Ga. 892, 894 (2) (778 S.E.2d 203) (2015) (unlawful possession of a firearm by a convicted felon); Smith v. State, 272 Ga. 874, 879-880 (6) (a) (536 S.E.2d 514) (2000) (armed robbery).

         Here, the appellants were found guilty and convicted of felony murder predicated on their unlawful participation in criminal gang activity through the commission of a simple battery. As with the aggravated assault in Edge, the simple battery in this case was integral to the homicide. And we acknowledge that most every voluntary manslaughter will involve a simple battery, and culpability for a simple battery ordinarily is susceptible of mitigation by proof of provocation and passion. But unlawful participation in criminal gang activity through the commission of a simple battery is not just a simple battery. It also involves association with a criminal street gang and a nexus between the simple battery and the activities of the criminal street gang. See OCGA § 16-15-4 (a). See also Jones, 292 Ga. at 659-660 (1) (b); Rodriguez, 284 Ga. at 807 (1). Unlawful participation in criminal gang activity through a crime of violence involves much more than the mere act of violence that may be integral to a homicide. Not all (or even most) voluntary manslaughters involve criminal gang activity, so there is no danger that felony murder premised on criminal gang activity would effectively eliminate voluntary manslaughter. And the culpability for unlawful participation in criminal gang activity is generally not susceptible of mitigation by the sort of provocation and passion that voluntary manslaughter involves.[6] Edge has no application in this case, and the trial court properly convicted appellants of felony murder predicated upon unlawful participation in criminal gang activity through the commission of a simple battery. See Grimes v. State, 293 Ga. 559, 561 (2) (748 S.E.2d 441) (2013).

         (b) Because the trial court properly convicted the appellants of felony murder, we next consider whether it erred when it failed to merge the crimes of unlawful participation in criminal gang activity through an aggravated assault and an aggravated battery into the offense of felony murder predicated on unlawful participation in criminal gang activity through a simple battery. The Street Gang Act provides that "[a]ny crime committed in violation of [the Act] shall be considered a separate offense, " OCGA § 16-15-4 (m), and we previously have rejected the idea that "all gang-related offenses [must] be gathered into a single gang activity charge." Veal v. State, 298 Ga. 691, 695 (3) (784 S.E.2d 403) (2016).[7] Accordingly, we have held that unlawful participation in criminal gang activity through the commission of predicate crimes of violence "at different locations and different times against different victims" may form the basis for separate convictions under the Street Gang Act. Id. Here, however, all of the unlawful participation in criminal gang activity of which the appellants were found guilty occurred at the same location (Mableton Parkway and the gas station adjacent to it), occurred at the same time (early on the morning of June 30, 2013), and was directed against the same victim (Chellew).

         The State says that the Street Gang Act permits multiple convictions for violations of OCGA § 16-15-4 (a) when a person associated with a criminal street gang participates in criminal gang activity by committing multiple predicate crimes, even when those predicate crimes are committed in one place, at one time, and against one victim. Perhaps that is so. But even if the State were right, [8] that only raises a question about whether this case actually involves multiple predicate crimes. That a criminal act might be charged in a variety of ways does not mean invariably that it will support multiple convictions and sentences.[9] In this case, all of the predicate crimes through which the appellants participated in criminal gang activity involved precisely the same conduct - the appellants striking Chellew with their hands and feet (without any indication of an intervening interval in the strikes).[10] Standing alone, those predicate crimes would merge together, see Regent v. State, 299 Ga. 172, 175-176 (787 S.E.2d 217) (2016), leaving only one predicate crime to form the basis for unlawful participation in criminal gang activity in violation of OCGA § 16-15-4 (a) Cf Stovall v State, 287 Ga. 415, 423 (696 S.E.2d 633) (2010) (Nahmias, J, concurring) (even under a broad construction of OCGA § 16-11-106, which (like the Street Gang Act) has a "separate offense" provision, only one conviction for possession of a firearm in the commission of a felony can be sustained when the various predicate felonies merge, leaving only one predicate felony to support such a conviction).

         On the facts presented in this case, the offenses of unlawful participation in criminal gang activity through the commission of an aggravated assault and unlawful participation in criminal gang activity through the commission of an aggravated battery merge with the offense of unlawful participation in criminal gang activity through the commission of a simple battery, which formed the basis for - and properly was merged into - the felony murder of which the appellants were convicted and sentenced. See Johnson v. State, 254 Ga. 591, 596 (4) (331 S.E.2d 578) (1985). Accordingly, their separate convictions for criminal gang activity involving aggravated assault and aggravated battery must be vacated.

         S17A1722. Anthony v. The State.

         3. Anthony alone claims that the trial court erred when it struck a potential juror for cause at the request of the State. Anthony speculates that the prosecution sought to strike the potential juror based on his race. But the record shows that the juror at issue acknowledged that he would not be a good juror, that he resented the police, that he had "bias" about the court system, that he would not decide the case "strictly by the book, " but would "go[ ] with [his] heart instead of what's the concrete evidence, " and that he would only vote to convict the defendants "if it's 100 percent" clear that they were guilty. The trial court was "uniquely positioned to evaluate whether [the] potential juror [could] render an impartial verdict, " see Trim v. Shepard, 300 Ga. 176, 178 (794 S.E.2d 114) (2016) (citation and punctuation omitted), and the trial court was authorized to believe the potential juror when he said that he would be unable to do so. As a result, to the extent that Anthony has preserved this claim, it has no merit.[11]

         4. Anthony contends that the trial court improperly commented on the evidence during the State's opening statement. After the prosecuting attorney said that police reports would be used only to refresh the memory of testifying officers and would not be available for jurors to review in the jury room, Pass's attorney objected "to the State explaining the law, " and the trial court overruled the objection, saying that "[h]e's talking about what's evidence and what's not evidence." Anthony now claims that the trial judge's response was an improper expression of her opinion in violation of former OCGA § 17-8-57.[12] But the trial court did not "express or intimate [her] opinion" as to any issue of fact, as to the veracity of any witness, as to the weight of any evidence, or as to the guilt of any of the defendants. Instead, she merely explained the reason for her ruling. "[T]he judge's comment here in no way constituted ...


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