Johannes Lopez v. State

• Court: Court of Appeals of Georgia
• Decided: June 20, 2019
• Docket: A19A0527
• Status: Published

Opinion

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

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

June 20, 2019

In the Court of Appeals of Georgia A19A0527. LOPEZ v. THE STATE

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 SE2d 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

2 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.

3 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 SE2d 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

4 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 SE2d

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 SE2d 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 SE2d 457) (1994) (“[T]he ‘street

5 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 F3d 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

6 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 SE2d 446) (2016) (where defendant was alleged to

be a member of the Gangster Disciples, the State qualified a witness from the GBI as

an expert in “criminal street gangs and gang-related culture, trends, and customs.”).

Moreover, the trial court entered a pretrial order stating that “expert testimony

on gangs, their history, activities and culture, including those of the alleged gang in

this case, shall be admissible at the trial of this case.” The State presented at least one

expert on gang culture generally, and admitted pictures and videos of gang members

unrelated to SUR-13. The defense likewise should have been able to present its own

expert on criminal street gangs.

Lopez’s inability to present his own expert on gang activity was prejudicial to

his defense and requires reversal. The State’s experts testified, inter alia, that the

predicate acts were committed in furtherance of SUR-13. The basis of their opinions

was that the crimes were committed in public and emanated from hostility towards

red – the color of SUR-13’s rival gang.

Lopez’s expert was prepared to testify that in his opinion, these acts were not

done in furtherance of gang activity. He opined that gang members typically do not

7 attack unsuspecting strangers, that they usually only engage in violence with known

rival gang members, and that shooting at random is actually against the code of the

streets and could actually diminish one’s reputation within their gang. Additionally,

Lopez’s expert would have testified that although the crimes were committed in

public, a gang would likely have wanted them to be carried out in a more visible

manner. The fact that these shootings were committed in the cover of darkness at 1:30

a.m. with very few cars and people around likely means that they were not gang-

motivated.

The trial court’s exclusion of this testimony deprived Lopez of the opportunity

to refute the State’s experts. In closing, Lopez argued in part that the offenses were

not done in furtherance of gang activity. However, he had no testimony from trial that

he could rely on to support his argument. The jury had only heard from the State’s

experts who came to the opposite conclusion. Because Lopez was unable to present

his full defense to combat the State’s evidence against him, we must reverse his

convictions for violation of the Street Gang Act. See Maryland v. Craig, 497 U. S.

836, 845 (110 SCt 3157, 111 LE2d 666) (1990) (“The central concern of the

Confrontation Clause is to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of an adversary

8 proceeding before the trier of fact. The word ‘confront,’ after all, also means a

clashing of forces or ideas, thus carrying with it the notion of adversariness.”); Terry

v. State, 308 Ga. App. 424, 426 (707 SE2d 623) (2011) (“The right to offer the

testimony of witnesses, and to compel their attendance, if necessary, is in plain terms

the right to present a defense, the right to present the defendant’s version of the facts

as well as the prosecution’s to the jury so it may decide where the truth lies.” (citation

omitted)).

Based on our holding in this Division, we need not address Lopez’s other

enumerations pertaining to his Street Gang Act counts. We will now address his

remaining enumerations that he argues affords him relief on his other convictions.

2. Lopez contends that the State presented insufficient evidence to sustain his

convictions for violation of the Street Gang Act as well as his convictions of the

predicate acts relating to the second shooting. We disagree.

On appellate review of the sufficiency of the evidence, the relevant question

is whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Smith v. State, 246 Ga. App. 191, 192 (1) (539

SE2d 881) (2000).

9 Lopez argues that the State failed to prove his identity in connection with the

second shooting. However, ample circumstantial evidence connected Lopez to that

shooting.

The evidence presented against Lopez as to the second shooting included two

witnesses who testified that someone in a white Ford Explorer opened fire on their

car. Furthermore, they each indicated that a photograph depicting Lopez’s Explorer

was similar in style to the one they encountered that night. The State presented a

video of the first shooting, which showed Lopez driving the Explorer. Both shootings

involved the same white Ford Explorer. Lopez was pulled over while driving that

white Ford Explorer and admitted to police that he had been driving that car in the

area earlier that morning. This evidence was sufficient for the jury to conclude that

Lopez committed the second shooting.

Next, Lopez contends that the State failed to prove that he committed the

predicate acts in order to further the interests of SUR-13, a known criminal street

gang. To prove that Lopez violated the Street Gang Act, the State was required to

show: (1) that he was, in fact, associated with a criminal gang, (2) that he committed

a predicate act of criminal gang activity, and (3) that the commission of the predicate

10 act was intended to further the interests of the criminal gang. Zamudio v. State, 332

Ga. App. 37, 39-40 (2) (771 SE2d 733) (2015).

At trial, the State’s experts discussed SUR-13 gang membership and its culture.

Specifically, as to Lopez, multiple witnesses spoke about Lopez’s known membership

in the gang based on his prior interactions with law enforcement. Lopez had multiple

tattoos indicating he was a member of SUR-13, and even conceded his membership

during closing argument.

As to SUR-13 generally, the State’s experts testified that SUR-13 is prevalent

in the area where the shootings occurred. They have a rivalry with the Norteños 14

gang, whose color is red. Consequently, SUR-13 members are very antagonistic to

red, and may act violently towards a person wearing red or driving a red car –

regardless of whether they are affiliated with Norteños 14. They also testified that

public displays of gang force and violence, like the incidents here, are part of SUR-

13’s culture. See Alston v. State, 329 Ga. App. 44, 47 (1) (763 SE2d 504) (2014)

(finding a sufficient nexus for gang activity where a State expert testified “that the

gang’s reputation is furthered by committing highly visible crimes in a manner which

allows the witnesses and the victims to discern that a particular gang committed the

crime.”)

11 The expert testimony presented by the State allowed the jury to find beyond a

reasonable doubt that Lopez was a member of SUR-13, and that the predicate acts

were committed to further the interests of the gang.

3. The State presented extensive evidence of Lopez’s past criminal conduct,

ranging from 2004 through 2015. In related enumerations, Lopez argues that each of

these prior acts should have been excluded under OCGA § 24-4-404 (b). He further

asserts that regardless of any error in admission, he is entitled to a new trial because

the probative value of the prior acts was substantially outweighed by the danger of

unfair prejudice. We disagree.

“Admission of evidence is a matter committed to the sound discretion of the

trial court, and the trial court’s evidentiary decisions will not be disturbed on appeal

absent an abuse of discretion.” Scruggs v. State, 253 Ga. App. 136, 136 (1) (558 SE2d

731) (2001) (footnote omitted).

Despite Lopez’s argument, OCGA § 24-4-404 (b) did not apply to the

admission of his prior acts. At the time of his trial, OCGA § 16-15-9 and OCGA § 16-

15-3 governed the admission of prior acts in Street Gang Act cases. As Lopez

acknowledges in his brief, OCGA § 16-15-9 provided that

12 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 [listing several crimes of violence] by any member or associate of a criminal street gang shall be admissible in any trial or proceeding.

Therefore, the commission of offenses listed in OCGA § 16-15-3 (1) were subject to

admission if they were committed by any member or associate of a criminal street

gang.

Each of Lopez’s prior acts in this case met the standard for admission under

OCGA § 16-15-9 and OCGA § 16-15-3. As to each prior act, the State presented

evidence it was committed by Lopez while he was a member of SUR-13. The State

also presented either an expert or a police officer who explained that the prior

offenses reflected the behaviors of SUR-13. We therefore find no error in the

admission of Lopez’s prior acts.

Lopez also argues specifically that his juvenile adjudication should not have

been admitted into evidence. However, Lopez conceded at trial that he opened the

door to the admission of the adjudication, and even insisted that he would place a

copy of it into the record. See Harper v. Hurlock, 281 Ga. App. 265, 266 (635 SE2d

874) (2006) (“Self-induced error furnishes no ground for reversal.”).

13 The final argument Lopez makes pertaining to his prior acts is that they should

have been excluded under OCGA § 24-4-403 because their probative value was

substantially outweighed by their prejudicial effect. We are not persuaded. The

“application of the Rule 403 balancing test is a matter committed principally to the

discretion of the trial courts, but as we have explained before, the exclusion of

evidence under Rule 403 is an extraordinary remedy which should be used only

sparingly.” Morris v. State, 340 Ga. App. 295, 306 (4) (797 SE2d 207) (2017)

(citation and punctuation omitted).

Here, the prior acts should not have been excluded under OCGA § 24-4-403.

Because the State charged Lopez under the Street Gang Act, it was required to prove

the existence of SUR-13 as well as Lopez’s affiliation with it. Lopez’s prior acts,

which showed he was involved in criminal gang activity, pertained directly to

elements of the charged offense. Accordingly, the probative value was not

substantially outweighed by the danger of unfair prejudice. Moreover, our appellate

courts have repeatedly approved the admission of prior acts that show a defendant is

involved in a criminal street gang. See e.g. Anthony v. State, 303 Ga. 399, 412 (12)

(811 SE2d 399) (2018); Lang v. State, 344 Ga. App. 623, 627 (2) (d) (812 SE2d 16)

(2018).

14 4. Lopez asserts that the State violated his right to remain silent in several

different ways. He cites to nine instances at trial that he characterizes as either the

State eliciting testimony about his silence in the face of police questioning, or his

failure to produce evidence of his innocence. He also cites five instances during the

State’s closing argument that he claims were improper comments on his silence. In

addition to these claims, he argues that a Security Threat Assessment document that

the Department of Corrections required him to fill out was improperly admitted.

Finally, he argues that his custodial statement to police should have been excluded

because the State presented insufficient evidence to prove that he was given his

Miranda1 warnings. For the reasons shown below, these arguments fail.

Trial testimony and closing argument

In his brief, Lopez points to a total of 14 instances from the trial record where

he maintains the State violated his right to remain silent. Some of these instances

occurred during the presentation of evidence, and others occurred during closing

argument. However, Lopez failed to object to any of these instances. His complaints

are therefore not preserved for our review. Williams v. State, 300 Ga. 218, 222 (3)

(794 SE2d 157) (2016).

1 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

15 Lopez argues in the alternative that his counsel’s failure to object to these

instances constituted ineffective assistance. This argument likewise is not preserved

for our review. At his motion for new trial hearing, Lopez asked his trial counsel in

very broad terms about whether he would lodge an objection if he heard evidence that

amounted to an improper comment on his client’s right to remain silent. Trial counsel

responded that he generally would object to such evidence, but in certain cases, there

could be a strategic reason for not objecting. Lopez did not ask trial counsel about

any specific instance from the trial transcript, and his reasoning for failing to object.

In his brief to this Court, Lopez asserts that trial counsel rendered ineffective

assistance based on his lack of objections, but makes no earnest legal argument that

these failures satisfy the two-pronged Strickland analysis. See generally Strickland

v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LEd2d 674) (1984). By failing to

question his trial counsel with any specificity, and by failing to support his argument

to this Court with legal citations, Lopez has not made the requisite showings to

establish that his trial counsel provided ineffective assistance. See Bostic v. State, 341

Ga. App. 402, 405 (1) (801 SE2d 89) (2017).

16 Security Threat Assessment

At trial, the State introduced a questionnaire the Department of Corrections put

forth to Lopez when he was incarcerated for another offense in 2010. The questions

were apparently designed to evaluate if Lopez posed a threat in prison based on any

gang affiliation. Lopez argues this was inadmissible because at the time he completed

the questionnaire, he was in custody and had not been apprised of his Miranda

warnings.

Pretermitting whether the court erred in admitting this document, we conclude

that Lopez has not shown that he was prejudiced by its admission. The document

contained 24 questions relating to whether Lopez was affiliated with any gang or its

ongoing activities. Of those 24 questions, Lopez only affirmatively answered three.

His responses to those three questions indicated that he did join SUR-13 at school

when he was 13 years old, and that he joined because he “likes trouble.” His answers

to the remaining questions were mostly one word responses such as “nothing,” or

“can’t say”. A plethora of other evidence in the record established that Lopez was a

SUR-13 member and had been in prior legal trouble. Accordingly, even if the court

erred here, it was harmless.

17 Custodial Statement

Lopez argues that the trial court erred in failing to suppress his video recorded

interview with police following his arrest because the State presented insufficient

evidence to prove that he was given Miranda warnings.

In deciding the admissibility of a statement during a Jackson–Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.

Dasher v. State, 229 Ga. App. 41, 43 (2) (494 SE2d 192) (1997) (citation and

punctuation omitted).

Specifically, Lopez contends that the trial court should have suppressed the

video of his recorded interview with police because it did not show the detective

informing him of his Miranda rights. In addition, Lopez did not sign the waiver of

rights form.

Both at the Jackson-Denno hearing and at trial, a Cobb County detective

testified that he read Lopez his Miranda rights and reviewed a waiver of rights form

with him. The detective further testified that Lopez understood these rights and was

18 not laboring under the influence of any drugs or alcohol. The detective further

testified that he provided no promises or hope of benefit to Lopez. Although Lopez

did not sign the waiver form, he initialed in several places indicating that the form

was read to him and that he understood his rights. He then agreed to proceed with the

interview.

Lopez’s arguments for suppression are misplaced. The record suggests that

Lopez’s failure to sign the form was an oversight rather than a calculated refusal.

Even if he had intentionally refused to sign the waiver, we have held that “the refusal

to sign a waiver of rights form before speaking to police does not render the

statements involuntary and inadmissible.” Rose v. State, 314 Ga. App. 79, 82 (722

SE2d 898) (2012) (citation and punctuation omitted). Moreover, Lopez’s statement

was not suppressable simply because the detective’s admonition of the Miranda

warnings to him were not captured on video. See Butler v. State, 292 Ga. 400, 404 (2)

(738 SE2d 74) (2013). He has therefore failed to show error in the admission of his

statement.

5. In his last enumeration that does not solely pertain to the Street Gang Act

counts, Lopez argues that the State engaged in prosecutorial misconduct.

According to Lopez, the State “blatantly misused” his prior act evidence by

19 arguing to the jury that he had the propensity to commit crimes. However, Lopez

waived this argument by failing to raise it below. See Cook v. State, 232 Ga. App.

796, 798 (2) (503 SE2d 40) (1998); Johnson v. State, 258 Ga. 856, 858 (6) (376

SE2d 356) (1989).

Judgment affirmed in part and reversed in part. Doyle, P. J., and Markle, J.,

concur.