NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 28, 2025
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, Kahlil
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
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, 442 U. S. 510,
521-524 (III) (99 SC 2450, 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)
(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 10-year prison term for each instance of first
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.
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was intended to further the interests of the gang. 2 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 Californiabased 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
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
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, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009)
(punctuation omitted).
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brother, Leslie.
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 Judkin’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 fist fight 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
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the fight, Leslie broke it up. Leslie shouted to Kareem: “This man
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
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Jackson and an unidentified man with his face concealed by the hood
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
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he surrendered himself to a DeKalb County SWAT team that had
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 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
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respect, you don’t have the power.” According to the detective, a
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
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deficient and that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 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, 313 Ga. 265, 273
(4) (869 SE2d 470) (2022) (citation and punctuation omitted), which
requires the defendant to overcome the “‘strong presumption’ that
trial counsel’s performance was adequate.” Perkins v. State, 313 Ga.
885, 901 (5) (873 SE2d 185) (2022), citing Strickland, 466 U. S. at
689 (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.” Id. (citing Strickland, 466 U. S. at 694 (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,
319 Ga. 573, 576-577 (2) (905 SE2d 605) (2024).
With regard to the Street Gang Act violation, the State was
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required to establish:
(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, 312 Ga. 515, 520 (1) (863 SE2d 93) (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,
284 Ga. 803, 807 (1) (671 SE2d 497) (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
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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language in the pattern charge describing the required nexus: “[T]he
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.” 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.”
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Williamson v. State, 248 Ga. 47, 54 (1) (c) (281 SE2d 512) (1981)
(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.” Id. (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, 442 U. S. 510; Francis v. Franklin, 471 U. S. 307, 313
(II) (105 SC 1965, 85 LE2d 344) (1985); Napier v. State, 276 Ga. 769,
771 (2) (583 SE2d 825) (2003), disapproved on other grounds,
Shelton v. Lee, 299 Ga. 350, 355-356 (2) (b) (788 SE2d 369) (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, 248 Ga. at 58 (2).
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Jackson’s argument fails because the challenged language does
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
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in certain sorts of crimes that the gang engages in those crimes to
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, 248 Ga.
at 54 (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, 442 U. S. 510. 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
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counsel was constitutionally ineffective. See Bowman v. State, 319
Ga. at 576-577 (2); Faust v. State, 302 Ga. 211, 218-219 (4) (b) (805
SE2d 826) (2017) (The failure to make a meritless objection cannot
support a claim of ineffective assistance.).
Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel,
McMillian, LaGrua, Colvin, and Pinson, JJ, concur.
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