Jackson v. State

FINAL COPY

                 S25A0399. JACKSON v. THE STATE.


      ELLINGTON, Justice.

      A DeKalb County jury found Carey Jackson guilty of felony

murder, aggravated assault, first-degree criminal damage to

property, and a violation of the Street Gang Terrorism and

Prevention Act (the “Street Gang Act”), OCGA § 16-15-4 (a), in

connection with the shooting death of Arnold Leslie and the assaults

of seven other individuals.1 Jackson contends that the trial court


      1 The crimes occurred on April 6, 2020. On December 1, 2020, a DeKalb

County grand jury returned an indictment charging Jackson with malice
murder (Count 1); felony murder (Count 2); aggravated assault (Counts 3-10);
first-degree criminal damage to property (Counts 11-12); possession of a
firearm during the commission of a felony (Count 13); and a violation of the
Street Gang Act (Count 14), in connection with the shooting death of Leslie
and the aggravated assaults of Leslie, Nasir Kareem, Marquita Kareem, Khalil
Kareem, Tahir Karim, Kayla Farrell, Janaya Gray, and Amirah Kareem. At
the conclusion of a jury trial that began on December 2, 2021, the jury found
Jackson not guilty of malice murder and possession of a firearm during the
commission of that felony, but guilty of the remaining counts. On December
17, 2021, the trial court sentenced Jackson to life in prison with the possibility
of parole for felony murder (Count 2). The aggravated assault involving Leslie
(Count 3) merged with the felony murder conviction. The court imposed
consecutive 20-year prison terms for each of the remaining aggravated assaults
(Counts 4-10), a concurrent ten-year prison term for each instance of first-
erred in denying his motion for a new trial on ineffective assistance

of counsel grounds. In support of his claim of ineffective assistance,

Jackson argues that the trial court’s pattern jury instruction

pertaining to a violation of the Street Gang Act (Count 14) contained

language creating a constitutionally impermissible mandatory

presumption as to an essential element of the Street Gang Act count

— purportedly a violation of Sandstrom v. Montana, 

 (III) (

, 61 LE2d 39) (1979) — to which trial

counsel should have objected. Counsel’s failure to object was

constitutionally ineffective assistance of counsel, he argues, because

it allowed the jury to find Jackson guilty on Count 14 without first

finding that the State had proven that at least one of the predicate

acts (e.g., murder) was intended to further the interests of the gang.2


degree criminal damage to property (Counts 11-12), and a consecutive 20-year
prison term for violating the Street Gang Act (Count 14). Jackson timely filed
a motion for new trial on January 18, 2022, which he amended through new
counsel on April 9, 2024. After a hearing, the trial court denied the motion for
new trial on June 26, 2024. Jackson timely filed a notice of appeal on July 16,
2024, and the case was docketed in this Court to the term beginning in
December 2024 and submitted for a decision on the briefs.
      2 OCGA § 16-15-4 (a) provides that “[i]t shall be unlawful for any person

employed by or associated with a criminal street gang to conduct or participate

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Because    Jackson     has    not   shown     that   trial   counsel    was

constitutionally ineffective for failing to make what is a meritless

argument, as explained below, we affirm.

     1. Evidence presented at trial. The evidence presented at trial

shows that Jackson was a member of a branch of the California-

based Bloods gang known locally as the Taliban Fruit Town Brim

Bloods, or “Brim” for short. On the night of the shooting, Jackson

lost a fistfight to Nasir Kareem. Jackson and Kareem had been

feuding over a woman. Jackson’s loss to Kareem injured his standing

in the gang as well as the gang’s reputation. So, Jackson and an

associate later went to Kareem’s home armed for revenge. The two

men fired over 30 rounds into the home, injuring Kareem,

terrorizing the people in the home, and killing Kareem’s older

brother, Leslie.




in criminal gang activity through the commission of any offense enumerated
in paragraph (1) of Code Section 16-15-3.” This Court has held that, based on
the statute’s use of the preposition “through,” an essential element of the
offense is a “nexus between the act and an intent to further street gang
activity.” Rodriguez v. State, 

 (1) (

) (2009)
(punctuation omitted).
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     Witnesses testified that Jackson and Kareem had both dated

the same woman, Kalyx Judkins. Kareem and Judkins had ended

their relationship on angry terms; Judkins had antagonized Kareem

and Kareem believed Judkins had cheated on him with Jackson.

After Judkins and Kareem broke up, Judkins immediately began a

romantic relationship with Jackson. Kareem testified that, on April

6, 2020, Jackson repeatedly called him and accused him of telling

lies about him. After the calls, Jackson, Judkins, and their friend,

Mya Garrison, drove to Kareem’s DeKalb County home in Judkins’s

black Ford Taurus to confront Kareem. When Jackson arrived,

Kareem went outside with several members of his family, including

his stepmother and Leslie. Kareem told Jackson to get away from

his home because there were children inside. He said, if “y’all want

to fight, we can go down the street a little bit.” Jackson taunted

Kareem and a fistfight erupted between them “instantaneously.”

During the fight, Kareem pulled off Jackson’s hoodie and felt the

weight of a handgun in it. Although Kareem appeared to be winning

the fight, Leslie broke it up. Leslie shouted to Kareem: “This man

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got a gun.” He told Kareem to go inside the house, and Kareem

complied. After a heated argument with Kareem’s stepmother,

Jackson, Judkins, and Garrison returned to their car. Kareem’s

stepmother testified that before they left, Jackson yelled: “On Brim,

this is not done!” Garrison testified that Jackson was angry, armed,

and wanted to finish the fight. Jackson sped away from Kareem’s

house, driving recklessly through the neighborhood at what “felt like

100 miles per hour.” Jackson drove to his apartment, and the group

went inside. Jackson immediately collected a second firearm from

his bedroom closet, and then he left, alone, in Judkins’s car.

Garrison and Judkins called Judkins’s mother, who gave them a ride

to Judkins’s home.

     About an hour after the fight, as Leslie, Kareem, and Kareem’s

sister stood in the carport of their home, discussing the events that

led to the fistfight, Jackson returned in the black Ford Taurus they

had seen earlier. They watched the car pass by the house, turn

around, and then stop beneath a streetlight. Kareem testified that

Jackson and an unidentified man with his face concealed by the hood

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of his jacket got out of the car. Then, without warning, the two men

opened fire at Kareem’s house. They fired at least 30 rounds into the

home. Kareem was shot twice but survived. Leslie was fatally shot

in the chest. Jackson and the man with him continued firing into the

home until Kareem’s father, Khalil, drove up. Khalil turned on his

car’s high beams and drove directly at the shooters, who got in the

car and fled. As the shooters sped away, Khalil pursued them while

also calling 911. The unidentified passenger shot at Khalil as Khalil

chased the shooters through downtown Stone Mountain. An

innocent bystander, Jeanell Harris, was driving home when she

heard gunfire and saw two cars speed by her. She later found what

appeared to be a bullet hole in the hood of her car.

      After Jackson eluded Khalil, he went to Judkins’s home.

Garrison testified that, when Jackson returned, he was with three

men. After the men helped Jackson clean his guns, they left.

Garrison observed that Jackson changed his clothes completely.

Jackson remained at Judkins’s home until the following day, when

he surrendered himself to a DeKalb County SWAT team that had

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begun setting up a perimeter around his apartment complex. Upon

learning that Jackson was suspected of being a member of a gang, a

deputy with the DeKalb County Sheriff’s Office spoke with Jackson

at the jail. The purpose of the conversation was to determine if

Jackson had any gang affiliation so that he was not placed with

inmates who were rival gang members. Jackson told the deputy that

he was “a member of the Taliban Fruit Town Brim Bloods” and had

the rank of “baby gangster or BG.”

     A detective with the DeKalb County Gang Unit testified that

he was familiar with the Taliban Fruit Town Brim Bloods and how

the gang operated. The detective said the gang had engaged in a

number of crimes in DeKalb County, including homicides,

aggravated assaults, and drive-by shootings. He explained that the

gang engaged in criminal activity because “they don’t want to be

messed with”; indeed, they want their members to remain “in good

standing” so that the gang is feared and respected. For a gang and

its members, the detective said, “respect is everything.” “Without

the respect, you don’t have the power.” According to the detective, a

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gang member who has a reputation for being disrespected loses

standing in the gang and is considered “weak.” Thus, when a gang

member suffers an injury to his reputation and “respect is lost,

retaliation is a must.” The detective also testified that, based on

several phone calls that Jackson made immediately after his fight

with Kareem to phone numbers belonging to known gang members,

it appeared that Jackson had sought “the green light” from “his big

homies” — his superiors in the gang — to commit the shooting.

     2. Jackson’s claim of ineffective assistance of counsel. Jackson

argues that his trial counsel was constitutionally ineffective because

he failed to object to a pattern jury instruction defining the offense

of participating in criminal street gang activity in violation of the

Street Gang Act that purportedly contained language creating a

constitutionally   impermissible       mandatory   presumption.    As

explained below, this argument is without merit.

     To establish his claim of ineffective assistance of counsel,

Jackson is required to prove both that his counsel’s performance was

deficient and that the deficient performance prejudiced him. See

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Strickland v. Washington, 

 (III) (

, 80

LE2d 674) (1984). “To prove deficient performance, [a defendant]

must    show that    his   counsel performed in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms,” Ward v. State, 

(4) (

) (2022) (citation and punctuation omitted), which

requires the defendant to overcome the “‘strong presumption’ that

trial counsel’s performance was adequate,” Perkins v. State, 

 (5) (

) (2022), citing Strickland, 

 (III) (A). “To satisfy the prejudice prong, a defendant must

establish a reasonable probability that, in the absence of counsel’s

deficient performance, the result of the trial would have been

different.” 

 (citing Strickland, 

 (III) (B)). If

Jackson fails to make a sufficient showing on one part of the

Strickland test, we need not address the other. See Bowman v. State,

 (2) (

) (2024).

       With regard to the Street Gang Act violation, the State was

required to establish:

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     (1) the existence of a “criminal street gang,” defined in
     OCGA § 16-15-3 (3) as “any organization, association, or
     group of three or more persons associated in fact, whether
     formal or informal, which engages in criminal gang
     activity”; (2) the defendant’s association with the gang; (3)
     that the defendant committed any of several enumerated
     criminal offenses, including those “involving violence,
     possession of a weapon, or use of a weapon”; and (4) that
     the crime was intended to further the interests of the
     gang.

Poole v. State, 

 (

) (2021) (citation and

punctuation omitted). As to the fourth element, which is the focus of

Jackson’s argument, “there must be some nexus between the act and

an intent to further street gang activity.” Rodriguez v. State, 

 (1) (

) (2009) (punctuation omitted). The trial

transcript shows that the judge instructed the jury that the State

had to prove four elements in support of Count 14, a violation of the

Street Gang Act.3

     Jackson challenges the trial court’s instruction with respect to

language in the pattern charge describing the required nexus: “[T]he



     3 The trial court gave the pattern jury instruction in full. See Georgia

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.02.25 (4th
ed., updated Jan. 2017).
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State must prove that there is a nexus between the crime committed

and the gang, that the crime was committed to further the interests

of the gang; meaning proof that the crime committed was the sort of

crime that the gang does.” Georgia Suggested Pattern Jury

Instructions, Vol. II: Criminal Cases, § 2.02.25 (4th ed., updated Jan.

2017) (emphasis supplied). Jackson frames his argument thus: The

pattern instruction was erroneous as it permitted the jury to find a

violation of the Street Gang Act based on “alternative evidence,” that

is, proof that the predicate crime was merely “the sort of crime that

the gang does” instead of one “committed to further the interests of

the gang.” A jury instruction permitting such an “alternative

evidentiary finding,” he contends, constitutes an unconstitutional

“mandatory presumption” in violation of Sandstrom. This language,

however, does not permit an “alternative evidentiary finding,” nor

does it create a mandatory presumption.

      A mandatory presumption is one which tells the trier of fact

that “they must find the ultimate fact upon proof of the basic fact.”

Williamson v. State, 

 (1) (c) (

) (1981)

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(citation, punctuation and emphasis omitted). A permissive

presumption or inference, on the other hand, is one which “allows —

but does not require — the trier of fact to infer the ultimate fact from

proof by the prosecutor of the basic fact.” 

 (citation and

punctuation omitted). As a matter of constitutional due process,

statutory presumptions cannot be conclusive on the factfinder or

shift the burden of proof to the defendant in criminal cases. See

Sandstrom, 

; Francis v. Franklin, 

(II) (

, 85 LE2d 344) (1985); Napier v. State, 

 (2) (

) (2003), disapproved on other grounds,

Shelton v. Lee, 

 (2) (b) (

) (2016).

In determining whether the challenged portion of the pattern charge

violates Jackson’s due process rights, we must determine the nature

of the presumption it describes, if any, and whether it impermissibly

shifts the burden of proof to the defendant. “Significant to this

determination is the way in which a rational trier of fact might have

perceived the instruction.” Williamson, 

 (2).

     Jackson’s argument fails because the challenged language does

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not create a mandatory presumption, nor does it shift the burden of

proof to the defendant. The jury would not have perceived the

instruction as requiring it to find Jackson guilty of violating the

Street Gang Act simply because other members of his gang had

committed aggravated assaults in the past. Rather, the instruction,

read as a whole, informed the jury about the “meaning” of the phrase

“further the interests of the gang.” A crime that furthers the

interests of the gang is not just any crime committed by a gang

member; rather, it is “the sort of crime that the gang does.”

(Emphasis supplied.) In other words, the instruction informed the

jury that a crime that furthers the interests of the gang is the sort

of crime that the gang, as an organization, engages in, not simply a

crime that a member of the gang may have committed in the past.

     Further, this instruction did not relieve the jury of its

obligation to find beyond a reasonable doubt the requisite nexus

between the predicate crime and the gang. Rather, the charge

explained to the jury that it may infer from the gang’s involvement

in certain sorts of crimes that the gang engages in those crimes to

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further its interests. However, the jury still had to find, based on the

evidence presented, that the State had proven beyond a reasonable

doubt that the crime Jackson committed was the sort of crime that

the gang committed, that is, a crime that furthers the interests of

the gang. Thus, the pattern charge did not relieve the jury of its

factfinding duty by directing it to presume the existence of a nexus

between the predicate crime and the gang. See Williamson, 

 (1) (c). Nor did it shift the burden of proof to the defendant to

disprove the existence of the nexus element in violation of his due

process rights. See Sandstrom, 

. Consequently,

Jackson has not shown that the pattern jury instruction is one to

which his trial counsel should have objected.

     Because Jackson has not shown that trial counsel should have

objected to the charge, he has not demonstrated that counsel’s

performance was deficient in this regard. Having failed to satisfy the

deficiency portion of his claim of ineffective assistance of trial

counsel, he has not carried his burden of demonstrating that his trial

counsel was constitutionally ineffective. See Bowman, 

576-577 (2); Faust v. State, 

 (4) (b) (

) (2017) (The failure to make a meritless objection cannot support

a claim of ineffective assistance.).

   Judgment affirmed. Peterson, C. J., Warren, P. J., and Bethel,
McMillian, LaGrua, Colvin, and Pinson, JJ., concur.




                        Decided May 28, 2025.

     Murder. DeKalb Superior Court. Before Judge LaTisha Dear

Jackson.

     Gerard B. Kleinrock, for appellant.

     Sherry Boston, District Attorney, Thomas L. Williams,

Shannon E. Hodder, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Beth A. Burton, Deputy Attorney General,

Meghan H. Hill, Senior Assistant Attorney General, M. Catherine

Norman, Assistant Attorney General, for appellee.




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