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Lopez v. State

Court of Appeals of Georgia, Fourth Division

June 20, 2019

LOPEZ
v.
THE STATE

          DOYLE, P. J., COOMER and MARKLE, JJ.

          COOMER, JUDGE.

         Following a jury trial, Johannes Lopez was convicted of twenty-seven charges: four counts of aggravated assault, two counts of possession of a firearm during the commission of a felony, three counts of possession of a firearm by a convicted felon, criminal damage to property in the first degree, and seventeen counts of violation of the street gang terrorism and prevention act ("Street Gang Act"). On appeal, Lopez raises 10 enumerations of error. Because the trial court abused is discretion in excluding Lopez's expert witness testimony, we reverse his convictions for violating the Street Gang Act. We affirm his other convictions.

         On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict. Whaley v. State, 337 Ga.App. 50, 50 (785 S.E.2d 685) (2016). The State's charges against Lopez arose from two separate incidents, which both occurred in the early morning hours on September 15, 2013.

         In the first incident, the victims were driving a red Chevy Cavalier. While the victims were stopped at a red light, a white Ford Explorer rammed them from behind and kept going. The victims followed the Explorer and obtained its tag number. They continued to follow the Explorer into a parking lot of a business. One of the victims testified that two people then jumped out of the Explorer and started shooting at them. Surveillance footage from the business was consistent with the victim's account. The victims called 911 and drove to a police station. Based on the tag number, police determined that the Explorer belonged to Lopez's mother.

         About 30 minutes later, and in the same area, a red Nissan Altima passed a white Ford Explorer that was driving slowly. A passenger in the Altima noticed that the Explorer had turned its headlights off. Just after that, people inside the Explorer fired gunshots at the Altima. The occupants of the Altima called 911.

         Cobb County police responded to the 911 call and found a white Ford Explorer with a tag number matching the one reported from the first incident. Officers stopped the vehicle and found Lopez driving the car with no passengers. Initially, Lopez refused to comply with the officer's demands and was uncooperative and defiant. He ultimately obeyed the directive to exit the vehicle, although he was simultaneously reaching for a nine-millimeter pistol in his waistband. Eventually, he lay on the ground, and police were able to approach and detain him.

         At trial, the State presented several experts who discussed the culture and activities of the criminal street gang, SUR-13, as well as Lopez's affiliation with the gang. The trial court, however, granted the State's motion in limine to exclude the testimony of Lopez's gang expert.

         The charges resulting from these two shootings - four counts of aggravated assault, three firearm related charges, and one count of criminal damage to property in the first degree - formed the predicate acts ("predicate acts") underlying the Street Gang Act counts. In total, Lopez was charged with four counts of aggravated assault, two counts of possession of a firearm during the commission of a felony, three counts of possession of a firearm by a convicted felon, criminal damage to property in the first degree, and seventeen counts of violation of the Street Gang Act. He was convicted of all charges except one of the Street Gang Act counts. Lopez timely filed a motion for new trial, which the trial court denied. This appeal followed.

         1. Lopez argues that the trial court abused its discretion by granting the State's motion in limine to exclude the testimony of his gang expert. We agree and therefore reverse Lopez's convictions for violating the Street Gang Act.

         Whether to admit or exclude expert testimony is reviewed for abuse of discretion. Thomas v. State, 290 Ga. 653, 658 (5) (723 S.E.2d 885) (2012).

         During trial, the State presented multiple experts who testified about Lopez's membership in SUR-13 and that the predicate acts were committed to further SUR-13's interests. To counter this evidence, Lopez attempted to qualify and present his own expert on gang activity and culture.

         The witness Lopez attempted to present is a current Georgia attorney who is also a former gang member. He testified during voir dire that he was familiar with gang activities inside and outside of jail, and that he was knowledgeable on gang tattoos, symbols, and terminology. At one point, he was employed by the DeKalb County District Attorney's office where he investigated and prosecuted multiple gang cases, including some involving SUR-13. After his DeKalb County employment ended, he continued consulting with multiple district attorney's offices and participating in public outreach programs, including serving on the Atlanta City Gang Council. He also testified that he was familiar with the indictment and factual allegations of this particular case.

         The State argues that the defense expert was properly excluded primarily for two reasons. First, he should not have qualified as an expert because he had no formal training, education, or academic background relating to gangs. Second, his testimony would have provided limited relevance because to the extent he qualified as an expert, it would have been as to gang culture generally; he would not have been a bonafide expert on SUR-13.

         The bases advanced by the State for exclusion of this testimony are legally untenable. The standard for qualifying an expert does not require any specific formal training or academic background. Burgess v. State, 292 Ga. 821, 822 (2) (742 S.E.2d 464) (2013) ("A witness need not be formally educated in the field at issue to be qualified as an expert."); Williams v. State, 279 Ga. 731, 732 (2) (620 S.E.2d 816) (2005) ("To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status." (Citation and punctuation omitted)). See also Kimbrough v. State, 215 Ga.App. 303, 304 (1) (450 S.E.2d 457) (1994) ("[T]he 'street value' of drugs is more peculiarly in the ken of an officer working on the street or buying drugs incognito, and such an officer is more likely to be knowledgeable on that subject than a laboratory chemist who has no actual experience in the purchase of drugs on the street".); Correa v. Cruisers, a Div. of KCS Int., Inc., 298 F.3d 13, 25-26 (1st Cir. 2002) (even though witness did not have formal education in the design and operation of marine engines, his twenty years of experience working on and repairing a variety of such engines qualified his expertise). Here, the defense expert's personal experience with gangs, familiarity with their culture and symbols, and professional prosecutorial experience should have allowed him to testify as an expert in this case. Any perceived weaknesses in his qualifications should not have disqualified him as an expert but were matters of weight and credibility for the jury in evaluating his testimony.

         The State also maintains that if the witness had been permitted to testify, he only would have been able to discuss the customs and culture of the specific gang he belonged to in Florida in the 1970s, and therefore his testimony would have little to no relevance here. His testimony, however, would not have been so restricted.

         The defense attempted to qualify its witness as an expert in gang activities, symbols, and membership, not as an expert on SUR-13. The law permits expert testimony on gang culture and activities generally, and based on the witness's qualifications, he should have been able to testify on that subject. See Nolley v. State, 335 Ga.App. 539, 543 (1) (782 S.E.2d 446) (2016) (where defendant was alleged to be a member of the Gangster Disciples, the State ...


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