Brown, Judge. Johnny McClendon and Georgio Glover were jointly indicted and tried on two charges each of felony murder and aggravated assault and one charge each of murder, conspiracy to commit murder, participation in criminal street gang activity, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The charges arose out of a confrontation that occurred on April 9, 2013, in Atlanta, Georgia. Garrett Dunlap and Mautious Wise were shot during the incident, and Dunlap’s injuries were fatal. The jury convicted McClendon and Glover on the charge of participation in criminal street gang activity, but acquitted them of the remaining charges. Following their convictions, both Glover and McClendon moved for new trials on several grounds, including the ones alleged on appeal. The trial court denied their respective motions, and both men appeal, alleging that (1) the State failed to disclose evidence of payments made to or on behalf of a witness in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and (2) the trial court erred by rejecting their claims under Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986), that the State exercised its peremptory strikes in a racially discriminatory manner during jury selection. Because both cases arise from the same facts, involve a joint trial and joint motion hearings, and the men raise identical issues on appeal, we have consolidated their cases for review. For the reasons set forth below, we reverse in both cases. The evidence presented at trial showed that on April 9, 2013, Dunlap and Wise were shot at an apartment complex on Delmar Lane in an area of the City of Atlanta known as “the Nine.” Dunlap died at the scene, and Wise was injured and taken to the hospital. There was testimony that (a) Dunlap and Wise were members of the Goodfellas gang; (b) Dunlap had been released from prison just a few days before his death; (c) the Goodfellas gang is a “hybrid criminal street gang” in Atlanta with approximately 400 members, most of whom are incarcerated; (d) McClendon, who was incarcerated at the time of the incident and is the acting leader of the Goodfellas, ordered Dunlap’s death because of an alleged conflict over a woman; and (e) Dunlap told people that McClendon had placed a hit on him and that people would be at the Nine ready to kill him. As for what transpired leading up to and during the deadly confrontation, the testimony was conflicting. Taliah Knox, Glover’s girlfriend at the time, told the lead detective on the case that Glover was on a speaker phone with Dunlap and Goodfellas-gang-member Darrell McBride while McBride was trying to convince Dunlap to come to the Nine. When Dunlap hung up, McBride told Glover to “take care of business” and Glover said “I got it.” At trial, Knox testified that Glover was on the phone with “another male” and that sometime after the phone call, Dunlap arrived at an apartment at the Nine, began arguing with Glover and fellow co-defendant Eric Kendrick, and then pulled out a gun. Glover and Kendrick shot at Dunlap, and Dunlap fled out the back door of the apartment. Once Dunlap was outside, several witnesses, including Knox, observed McBride stand over Dunlap and shoot him in the head. Two gang members, including the victim Wise, told the lead detective that Glover was at the Nine during the shooting but not in the apartment. Wise also told the lead detective that he was outside the apartment when “Tweezy” (McBride) shot him at the Nine.[1]We consider first Case No. A18A1409, wherein Glover challenges the denial of his motion for new trial. We consider next Case No. A18A1408, wherein McClendon challenges the denial of his motion for new trial.Case No. A18A1409 1. Glover contends that the trial court erred in denying his motion for new trial on the ground that the State failed to disclose evidence of payments made to or on behalf of Knox in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). Glover claims that the State’s failure to disclose the payments “‘undermines confidence in the outcome of the trial [and] creates a reasonable doubt that did not otherwise exist.’” Glover alleges that Knox was the State’s star witness, and the only witness to put a gun in his hand and to testify that he was a member of the Goodfellas. According to Glover, Knox’s pecuniary interest in testifying for the State was unquestionably material and he was entitled to expose this bias to the jury. We agree.Background Facts At a joint hearing on Glover and McClendon’s respective motions for new trial, an investigator with the Atlanta Police Department’s (“APD”) gang unit testified that Knox was a paid confidential informant. The investigator stated that he began working with Knox in January 2013, when she provided information on members of the “Nine Trey Billy Badass Club” who were causing problems in the Allen Hills area of Atlanta. The investigator confirmed that Knox told him about a murder in Allen Hills and another murder connected to the Goodfellas,[2] and that he passed along Knox’s information to the homicide unit, including the lead detective in this case. The investigator also testified that Knox signed a confidential source agreement on February 4, 2014, and that APD twice paid her $60 for information she provided on the Goodfellas and “Delmar Lane,” as well as Allen Hills and a tax fraud ring. The investigator testified that Knox stopped working for him after the two payments, and began working for the lead detective in this case. At one point, Knox told the investigator that she “need[ed] to get her an office and get on the payroll at APD.”There was also evidence presented during the motion for new trial hearing that the Fulton County District Attorney’s Office paid a total of $6,421.63 in witness expenses on behalf of Knox during the trial at issue, including a one and a half month hotel stay, per diem expenses, as well as the security deposit on a new apartment, moving expenses, and rent for the first month in that apartment. The prosecutor testified that Knox was in a hotel “for her safety.” He believed that he had discussed with Glover’s attorney that Knox was afraid for her safety and that she was in a hotel, but he was not sure. The prosecutor was not personally aware that Knox was a paid confidential informant and testified that no one at the police department ever told him that she had been paid for information.According to Glover’s trial attorney, the State never told him that Knox was a paid confidential informant or that she was provided “financial assistance” during the trial. Prior to trial, counsel specifically requested such information as follows: [Glover] seeks all of the following information and relief: . . . Any and all consideration or promises of consideration given to or made on behalf of the witnesses called to testify on behalf of the State. By “consideration” the Defendant refers to absolutely anything o[f] value or use, including but not limited to immunity grants, promises, assurances, bonding accommodations, witness fees, special witness fees, transportation, . . . and anything else which could arguably create an interest or bias in the witness in favor of the state or against the Defense or acts as an inducement to testify or to color testimony.
Counsel never received “anything [from the State] in direct response to that paragraph.”[3] During the motion for new trial hearing, Glover’s appellate counsel explained that he discovered Knox had been paid when the issue was raised during an unrelated murder trial involving defendant Jamal Chandler, which occurred in the summer of 2016, more than a year after the trial in this case.[4] In the Chandler case, defense counsel had asked for information about whether Knox was paid as a confidential informant and “was told documents didn’t exist.” Around November 20, 2015, defense counsel in the Chandler case learned that APD had in fact paid Knox, and the trial court in that case ordered the District Attorney’s Office and APD to produce the documents for an in camera review by the court. The State finally produced the documents one year after they were requested and only after defense counsel filed a motion for contempt, which came on for a hearing in March 2016. Appellate counsel in this case further explained that after learning of the payments to Knox, he filed an open records request, which went unanswered. When he threatened to file a motion to compel, the State produced the records.Brady AnalysisUnder Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U. S. at 87. The prosecution must disclose evidence in its possession that is favorable to the defendant because the Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but is required to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.
