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Luke v. State

The defendant was entitled to a mistrial when the prosecutor stated in closing argument that the co-defendant was at an earlier gang-related shooting in another public place, since that was a matter outside the record.

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Following a joint trial with co-defendants Tchywaskie Jones and Jerry Harris, Dabkowski Luke appeals from his convictions of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. Luke asserts several errors, including that insufficient evidence supports his convictions and that the trial court erred by failing to grant a mistrial when the State used facts not in evidence during its closing argument. Based upon the Supreme Court of Georgia’s recent opinion involving the appeal of his co-defendant Jones,1 we reverse his conviction under the Street Gang Act based upon insufficient evidence. We grant a new trial on his conviction for aggravated assault based upon our conclusion that sufficient evidence supports his conviction, but the trial court erred in failing to grant a mistrial.

1. The evidence introduced against Luke with regard to his Street Gang Act conviction is identical to that which the Supreme Court found insufficient to support Jones’ Street Gang Act conviction in the same trial. Jones, supra, 292 Ga. at 659-660 1 b. We therefore conclude that insufficient evidence also supports Luke’s conviction under the Street Gang Act. Id.

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