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Jackson v. State

Supreme Court of Georgia

September 3, 2019

JACKSON
v.
THE STATE.

          PETERSON, JUSTICE.

         Kevin Durand Jackson appeals his convictions for malice murder and other crimes in connection with the shooting death of Timbaland Crowder.[1] Jackson argues that the evidence was insufficient to convict him, the trial court erred in denying his motion for a mistrial after a witness testified about Jackson's Facebook and other social media posts, and the trial court plainly erred in instructing the jury on the charged crimes. He also argues that he received ineffective assistance of counsel in several respects. We affirm because the evidence was sufficient to support Jackson's convictions, the trial court did not err in denying Jackson's mistrial motion, the jury instructions were not plain error, and trial counsel was not constitutionally ineffective.

         Viewed in the light most favorable to the verdicts, the trial evidence showed that on the evening of May 30, 2015, a fight involving 15 to 20 people broke out at Lakeview Apartments in Carrollton. The fight ended, but another fight involving some of the same people started several hours later outside of a bar known as Cocoa's. The fight moved onto the street and led to additional skirmishes among the 75 to 100 people that were there. During this second fight, at least two witnesses saw a person known as "Wet," Jackson's street name, shoot Timbaland Crowder with a handgun. One of these witnesses, Travaurus Freeman, identified Jackson at trial as the shooter. Another witness saw a person with Jackson's physical attributes walking down the street with a handgun after the witness heard gunshots.

         Crowder died from a gunshot wound to the chest, and the bullet recovered from his body was a .380 metal-jacketed bullet that could have been fired from a semi-automatic handgun. At some point prior to the fighting on the street, Jackson and Crowder had argued.

         Rashard Terry, a co-indictee who testified at Jackson's trial, said that he heard about the first fight and obtained a .380 semiautomatic handgun from his father because he wanted to protect his cousin, who thought people wanted to fight him. Terry went to the apartments and eventually to Cocoa's, where he saw people fighting. Terry encountered Jackson on the street and decided to enter the fray. Before doing so, he handed his handgun to Jackson. Soon after, Terry heard a gunshot and saw Crowder on the ground. Terry admitted to being a member of the Bloods gang and stated that Jackson was also affiliated with the gang. Terry also said that Crowder was a member of the Crips gang.

         Investigator J. J. Cole of the Carrollton Police Department was qualified as an expert in gang investigations and testified that he monitored criminal street gangs in Carrollton. The Bloods street gang identified themselves with distinctive tattoos, hand signs, and the color red. Prior to investigating the murder in this case, Investigator Cole had been monitoring Jackson's social media activity and collecting information posted by Jackson. Pursuant to a search warrant, Investigator Cole extracted images from Jackson's Facebook account that showed: Jackson (with others) displaying Bloods hand signs; Jackson wearing all red clothing; and Jackson holding or possessing a handgun, including while another individual flashed a gang sign. Investigator Cole noted that the letter "C" had been replaced with the letter "B" in Jackson's Facebook posts, (e.g., "Be Bool" and "Boolin' at da brib"), which Investigator Cole explained was due to the Bloods' refusal to recognize the letter "C," as they associated it with Crips.

         In one of Jackson's Facebook posts, there was an image of a hand holding a gun followed by an online discussion that occurred on December 29 and 30, 2014. In that discussion thread, Jackson used Bloods terminology and also wrote comments such as: "Ima put it in a n***a life," "I pull dis mf out dey go do wat eva I say," "Ima kill me a n***a today." Investigator Cole explained that on the day the discussion thread started, there was a shooting toward an apartment; there were seven or eight people inside the apartment at the time, including an individual believed to be a Bloods member. Investigator Cole also stated that Crowder the victim in this case was the primary suspect of the apartment shooting. Based on his review, Investigator Cole opined that Jackson was a member of the Bloods.

         1. The evidence was sufficient to convict Jackson.

         Jackson argues that the evidence was insufficient to support his convictions for malice murder and violations of the Street Gang Act.[2] We disagree.

         When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). We do not resolve conflicts in the evidence or determine the credibility of witnesses; instead, we view the evidence in the "light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." Hayes v. State, 292 Ga. 506, 506 (739 S.E.2d 313) (2013) (citation and punctuation omitted). The jury's resolution of these issues "adversely to the defendant does not render the evidence insufficient." Graham v. State, 301 Ga. 675, 677 (1) (804 S.E.2d 113) (2017) (citation and punctuation omitted).

         (a) The evidence was sufficient to support the malice murder conviction.

         At trial, the State called several witnesses who saw Jackson at or near the scene of the crime at the time of the shooting. Two of the witnesses saw a man known as "Wet" Jackson's street name shoot the victim, and one of these witnesses specifically identified Jackson in court as the shooter. Jackson's co-indictee, Terry, said that he gave Jackson a .380 semi-automatic handgun just prior to the shooting, and the evidence showed that the victim died from a gunshot wound from a .380 bullet that was consistent with being fired from a semi-automatic handgun. Although Jackson cites conflicts in the evidence regarding the number of people at the fight, points to alibi witness testimony favorable to him, and challenges the reliability of witnesses who implicated him in the shooting, these issues were for the jury to resolve, and the fact that the jury resolved the conflicts in the evidence or credibility of the witnesses adversely to Jackson does not render the evidence insufficient. See Graham, 301 Ga. at 677 (1). The evidence summarized above was sufficient to authorize the jury to find Jackson guilty beyond a reasonable doubt of malice murder.

         (b) The evidence was sufficient to support the Street Gang Act convictions.

         Jackson was convicted of two counts of violating the Street Gang Act by participating in criminal gang activity through the commission of murder and an aggravated assault of Crowder while "associated with the Bloods, a criminal street gang." 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 [OCGA § 16-15-3 (1)]"); 16-15-3 (1) (J) (enumerated offenses include any criminal offense that involves violence or the use of a weapon). To convict Jackson, the State had to prove beyond a reasonable doubt that Jackson was associated with the Bloods, the Bloods were a "criminal street gang," Jackson committed the predicate acts of murder and aggravated assault, and the commission of those offenses was intended to further the interests of the Bloods. See McGruder v. State, 303 Ga. 588, 591-592 (II) (814 S.E.2d 293) (2018); Jones v. State, 292 Ga. 656, 659 (1) (b) (740 S.E.2d 590) (2013). The State proved each of these elements at trial.

         At trial, Terry, who admitted to being a member of the Bloods, testified that Jackson was also associated with that gang. The State introduced numerous images showing Jackson displaying Bloods hand signs and using Bloods slang, such as "Be Bool." See OCGA § 16-15-3 (3) (existence of a gang "may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics"). Investigator Cole testified that he had monitored the Bloods in Carrollton, the gang had at least three members there, and the gang had committed many violent crimes, including aggravated assault and murder. See OCGA § 16-15-3 (3) (defining a "criminal street gang" as "any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity").

         Regarding the third element, the evidence discussed above in the sufficiency analysis authorized a finding that Jackson shot at and killed Crowder, establishing that he committed the predicate offenses of aggravated assault and murder. The evidence also showed that Crowder was a member of a rival gang, the Crips, and was the primary suspect in shooting at a Bloods member; on the same day of that shooting, Jackson wrote on his Facebook page that he was going to "kill me a n***a today." From this evidence, the jury was authorized to conclude that Jackson shot and killed Crowder in retaliation for Crowder's having shot at a Bloods member. See In Interest of W. B., 342 Ga.App. 277, 282 (801 S.E.2d 595) (2017) ("Evidence showing that a crime was done in retaliation for some act or insult committed against the gang or its members will also serve to show that the crime furthered the gang's interests." (citations omitted)). Based on this evidence, the jury was authorized to find Jackson guilty of the two violations of the Street Gang Act.

         2. The trial court did not err in denying Jackson's motion for a mistrial.

         Jackson argues that the trial court erred in denying his motion for a mistrial after the State introduced into evidence images obtained from his Facebook page and Investigator Cole's testimony regarding a ...


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