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Bullard v. State

Supreme Court of Georgia

December 23, 2019

BULLARD
v.
THE STATE.

          Warren, Justice.

         Bernard M. Bullard was convicted of malice murder, violation of the Georgia Street Gang Terrorism and Prevention Act, and possession of a firearm during the commission of a felony in connection with the shooting death of John Johnson.[1] On appeal, Bullard contends that the evidence was insufficient to sustain his convictions and that the trial court erred in denying a special demurrer, a motion to bifurcate the trial, and a motion in limine. Finding no reversible error, we affirm.

         1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at Bullard's trial showed that he was a member of the East Macon Family gang and that Johnson was a member of the rival Crips gang. The East Macon Family gang was known to operate on the east side of Macon, whereas the Crips gang was known to operate on the west side. In the early morning hours of April 21, 2013, Johnson and four other people rode in two separate vehicles to a house party on the east side of Macon. Three of the people in Johnson's group, including Eric Mason, were also associated with the Crips gang, and the fourth was a member of a different gang.

         Johnson and the others did not have directions to the party they intended to attend. They stopped near, and walked towards, a house party that Bullard and Markel Parks were attending. When a large group of people attending the party left, Johnson's group realized they were at the wrong location. Someone leaving the house party said that Johnson's group was not supposed to be there, and one or more people then yelled "squad," which is a term that members of the East Macon Family use to refer to themselves. The members of Johnson's group, who were not armed, ran back to their cars and then heard gunshots. After Mason got into Johnson's car and Johnson started to leave, Mason saw Bullard shoot at Johnson several times, striking him once, and Mason also saw Parks shoot into the air. Mason then got out of Johnson's car and left in the other car with the remaining three people in his group. Johnson later died from a gunshot wound to his head.

         A firearm was not recovered at the scene, but a firearms examiner later determined that a single 9mm handgun ejected six of seven shell casings found near Johnson's car and could have fired the fatal 9mm bullet recovered from Johnson. Before trial, Mason told police officers that Bullard shot Johnson. Mason positively identified Bullard from a photo lineup, and his statements to police officers were consistent with respect to identifying Bullard as the person who shot Johnson. At trial, however, Mason testified that he did not know who shot Johnson. But one officer testified that Mason had previously said that members of the East Macon Family had threatened him; members of that gang attended the trial wearing their gang color; Mason testified at one point that he was afraid to testify about who shot Johnson; and during his testimony, Mason admitted to having told officers that Bullard shot Johnson. In addition, Parks admitted at trial to making prior statements to detectives that he saw Bullard shoot Johnson, although Parks also disavowed those statements during the trial.

         Bullard contends that the evidence generally was insufficient to support his convictions because the "evidence was vague and ambiguous and conflicting at best," and also argues that the evidence was insufficient to prove a violation of the Street Gang Act. We disagree.

         Bullard was charged in the indictment with violating the Street Gang Act in that he, "being associated with East Macon Family, a criminal street gang, did unlawfully conduct or participate in criminal gang activity through the commission of the offense of murder by shooting John Johnson, a rival gang member[, ] in the head causing his death . . . ." To prove a violation of the Street Gang Act in this way, the State was required to show that Bullard was, in fact, associated with the East Macon Family, that the East Macon Family was a "criminal street gang," that Bullard committed a predicate act of "criminal street gang activity"-namely, the murder of Johnson, and that the commission of the predicate act was intended to further the interests of the East Macon Family. See OCGA §§ 16-15-3 (1) (J), (3), 16-15-4 (a); Chavers v. State, 304 Ga. 887, 890 (823 S.E.2d 283) (2019).

         The evidence, viewed in the light most favorable to the verdicts, shows that all of these elements, as well as Bullard's motive for committing the murder, [2] were proved at trial through the testimony of two gang experts and five other witnesses, as well as various photographs and postings on Bullard's social media pages. The evidence showed that the East Macon Family was a criminal street gang that included Bullard and Parks among its members; that Johnson and three others in his group were associated with a rival gang; that they were on East Macon Family "turf" on the night of the shooting; that it broke an "unwritten rule" to be in a different gang's territory; that Bullard's gang status would increase for having participated in a shooting; and that just before the shooting, individuals leaving the house party yelled "squad," a term used by members of the East Macon Family to refer to themselves and found on numerous social media postings of Bullard's.

         And although two key eyewitnesses, Mason and Parks, recanted their statements at trial, those statements were nonetheless admitted as prior inconsistent statements. See Esprit v. State, 305 Ga. 429, 437 (826 S.E.2d 7) (2019) (under old and current Evidence Codes, "a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes") (citing old Evidence Code cases and current OCGA § 24-8-801 (d) (1) (A)) (punctuation omitted). The pre-trial statements Mason and Parks made to police therefore "constituted substantive evidence of [Bullard's] guilt by two eyewitnesses, despite their subsequent recantation or equivocation." Berry v. State, 268 Ga. 437, 438 (490 S.E.2d 389) (1997). "[T]he fact that the jury resolved the conflicts in the evidence or credibility of the witnesses adversely to [Bullard] does not render the evidence insufficient." Jackson v. State, 306 Ga. 706, 708 (832 S.E.2d 809) (2019). We therefore conclude that the evidence presented at trial was more than sufficient to authorize a rational jury to find Bullard guilty beyond a reasonable doubt of the violation of the Street Gang Act, as well as for the other crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Smith v. State, ___Ga., ___(833 S.E.2d 117, 121) (2019) (affirming conviction for violation of the Street Gang Act where the evidence showed, among other things, that the victim was seeking to establish a permanent drug-dealing business in the area where the defendant's gang operated); Jackson, 306 Ga. at 709 (affirming convictions for violation of the Street Gang Act where the evidence showed, among other things, that the victim was a member of a rival gang); McGruder v. State, 303 Ga. 588, 592-593 (814 S.E.2d 293) (2018) (affirming conviction for violation of the Street Gang Act where the evidence showed, among other things, that the defendant's Facebook page showed gang attire and conduct consistent with affiliation with a particular gang, that the defendant could earn status in the gang by committing violent acts, and that the victim had shown disrespect to a gang member's girlfriend).

         2. Bullard contends that the trial court erred in denying his special demurrer with respect to Counts 5 and 6 of the indictment, which charged violations of the Street Gang Act.[3] In the trial court, Bullard filed a special demurrer asserting that the State failed to allege sufficient information about those counts, [4] arguing that Counts 5 and 6 of the indictment were "imperfect as to form" and that Bullard was "entitled to more information," such as whether the East Macon Family "existed prior to these events," "what was the rival gang" that Johnson was a member of, when Bullard became a member of the East Macon Family, and whether Bullard was "an actual member of that particular gang or was . . . just associated with it."[5] Contending that "those technical defects are fatal to those counts," Bullard argued that the gang counts contained in the indictment should be "struck" and "re-alleged" or "re-indicted." The trial court ruled, however, that the indictment was "sufficiently technical and correct" and denied the special demurrer. We review a ruling on a special demurrer de novo to determine the legal sufficiency of the allegations in the indictment, see State v. Mondor, 306 Ga. 338, 341 (830 S.E.2d 206) (2019), and conclude that the allegations that Bullard violated the Street Gang Act were legally sufficient to withstand his special demurrer.

         Bullard did not file a general demurrer claiming that the indictment failed to allege every essential element of violation of the Street Gang Act. Cf. Mondor, 306 Ga. at 340 ("This type of challenge to the sufficiency of an indictment because it fails to set forth all of the essential elements of the charged crime is properly considered a general demurrer." (citation and punctuation omitted)). "An indictment that is not subject to a general demurrer may, however, be subject to a special demurrer, which challenges the specificity of the indictment." State v. Wyatt, 295 Ga. 257, 260 (759 S.E.2d 500) (2014). By filing a special demurrer, a defendant "claims not that the charge in an indictment is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information." Kimbrough v. State, 300 Ga. 878, 880-881 (799 S.E.2d 229) (2017) (citation and punctuation omitted). "The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain." Wyatt, 295 Ga. at 260 (citation and punctuation omitted); see also Kimbrough, 300 Ga. at 881 ("an indictment does not have to contain 'every detail of the crime' to withstand a special demurrer" (citation omitted)). Even so, the indictment "must allege the underlying facts with enough detail to sufficiently apprise the defendant of what he must be prepared to meet." Kimbrough, 300 Ga. at 881 (citations and punctuation omitted). And "when a court considers whether an indictment is sufficient to withstand a special demurrer, it is useful to remember that a purpose of the indictment is to allow a defendant to prepare [his] defense intelligently." Id. (citation and punctuation omitted).

         Here, Count 5 of the indictment specifically alleged the date of the offense, the county where the offense occurred, the gang with which Bullard was associated, that gang's status as a criminal street gang, the predicate act of criminal street gang activity, the identity of the victim of that act, and the manner in which that act was done. Such allegations provide enough information that the indictment is not susceptible to a special demurrer. See Morris v. State, 340 Ga.App. 295, 302 (797 S.E.2d 207) (2017). Further details were not required to ensure that Bullard could prepare his defense. See Kimbrough, 300 Ga. at 881. In particular, Count 5 "sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses," and the indictment was not required "to contain a specific allegation that the gang existed prior to the commission of any of the enumerated offenses, or to include a specific enumerated offense that was committed prior to the commission of any of the enumerated offenses in this case." Morris, 340 Ga.App. at 302 (citation and punctuation omitted).

         Likewise, the indictment was detailed enough for Bullard to prepare his defense without additional information regarding the identity of Johnson's rival gang, the time Bullard became a member of the East Macon Family, and the exact nature of his association with that gang. See Varner v. State, ___Ga. ___, ___n.5 (832 S.E.2d 792) (2019) (in an indictment for possession of a firearm by a convicted felon, the absence of a specification of the particular prior felony does not give rise to a special demurrer); Smith v. State, 303 Ga. 643, 646-647 (814 S.E.2d 411) (2018) (murder counts of an indictment-which charged co-indictees with acting in concert to kill the victim by striking her with a hammer and stabbing her with a knife, and provided the date and county of the offense and the identity of the victim in clear terms-were sufficient to withstand a special demurrer even without specifying which defendant used the hammer and which one used the knife); Wyatt, 295 Ga. at 261-266 (an indictment for aggravated assault need not specify the manner in which the simple assault was committed, how the defendant used the weapon or object that aggravated the assault, or what weapon was used if it is unknown, and aggravated battery charge need not specify the manner in which the battery was committed). Because "an indictment does not have to contain 'every detail of the crime' to withstand a special demurrer," Kimbrough, 300 Ga. at 881 (citation omitted), and Count 5 contained sufficient detail in any event, the trial court did not err by denying Bullard's special demurrer, and his enumeration therefore fails.

         3. Bullard argues that the trial court erred by denying his motion to bifurcate trial. On the morning of the first day of trial, Bullard filed a motion to bifurcate his trial so that the counts alleging violations of the Street Gang Act would not be tried until after the jury heard and decided the other counts. Bullard argued that proof of his alleged gang affiliation would amount to "improper character evidence" and would be irrelevant and unfairly prejudicial in violation of OCGA § 24-4-403 unless he was first convicted of aggravated assault or murder. The trial court denied the motion to bifurcate and, in its order denying the motion for new trial, concluded that relevant evidence is not inadmissible when it incidentally places the defendant's character in issue, and that the State's gang-related evidence was relevant to Bullard's affiliation with the gang and to Bullard's motive (i.e., Johnson's membership in a rival gang). On appeal, Bullard contends that the trial court erred ...


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