Evidence of gang involvement is admissible where it serves a purpose other than showing a defendant’s proclivity for criminal conduct, the South Carolina Court of Appeals has unanimously ruled in a case of first impression.
Generally, according to Rule 404(b) of the South Carolina Rules of Evidence (SCRE), “prior bad act” evidence is improper if it’s used only to prove that a defendant acted “in conformity therewith on a particular occasion.” But in its June 23 opinion, the appeals court held that character evidence is properly admitted if a trial court finds it logically relevant to the crime for which a defendant is tried.
“If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime,” Judge D. Garrison Hill wrote for the court, quoting 1923’s State v. Lyle.
A Sumter County jury convicted Mickey Johnson, alleged leader of the 135 Piru Sumter chapter, of accessory before the fact of murder, presenting a firearm, unlawfully carrying a pistol, and criminal conspiracy for his role in the 2011 killing of a man he believed to be associated with a rival gang.
According to court records, Johnson and several fellow Piru members—Bryan Bradley, John Stamps, and Rasheed Brandon—were outside an apartment complex when Folk Nation members showed up to visit acquaintances. The groups exchanged words and, later, gunfire. No one was injured. Later that afternoon, someone inside fired several shots at Stamps, who was alone outside the apartments, before speeding off in a car. When Johnson learned of the incident, he ordered Brandon to go to one of the apartments and to shoot whoever answered the door, unless it was a woman. When a woman opened the door, Brandon shot and killed a man sitting inside.
Before trial, Johnson objected to the presentation of evidence of his gang affiliation, arguing that it constituted evidence of other bad acts and was unduly prejudicial. Sumter County Circuit Court Judge William H. Seals Jr. overruled the ongoing objection and allowed testimony from two gang experts—a Sumter police detective and South Carolina Law Enforcement Division agent—regarding Johnson’s leadership. A former Piru member testified that Johnson led the chapter, and Bradley and Stamps testified that Johnson was their leader and that he ordered the killing. It took the jury three hours to convict Johnson.
Bygones not always bygones
On appeal, Johnson argued that prior bad acts evidence is prohibited by Rule 404(b) of the SCRE, which states that evidence of one’s general character is not admissible unless it fits an exception allowing it, which this evidence did not. But the rule does recognize five legitimate purposes of prior bad act evidence: to prove “motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.”
No South Carolina court had squarely addressed whether gang affiliation is admissible in a criminal trial. But the appeals court found that while gang evidence may infer lawlessness, it is allowable where a trial court, after applying a logical relevancy test with “rigid scrutiny,” determines that the evidence serves some purpose other than to show criminal propensity, following the state Supreme Court’s guidance in its 2020 decision in State v. Perry.
Here, prosecutors asserted that evidence of the gang’s structure, Johnson’s leadership, and the rivalry with Folk Nation was offered to prove Johnson’s motive and intent rather than his criminal propensity. The appeals court found the evidence essential to explain the motive and intent behind the “senseless shooting of an innocent victim,” and probative to conspiracy and accessory, both of which require proof of planning and agreement.
“This evidence therefore cleared, with room to spare, Perry’s hurdle that prior bad act proof serve some purpose other than parading Johnson’s propensity for criminal conduct,” Hill wrote.
The appeals court cautioned that trial courts must limit the scope of gang evidence to the essential and may need to address the evidence in voir dire, control its presentation according to the SCRE, and instruct jury members about how they may use the evidence.
Attorney General Alan Wilson and Senior Assistant Deputy Attorney General Megan Harrigan Jameson represented the state. Appellate Defender David Alexander represented Johnson.
The eight-page decision is Mickey Johnson v. State (Lawyers Weekly No. 010-039-21). The full text of the opinion is available online at sclawyersweekly.com.