Court Upholds Convictions of 2 Gang Members

Times Staff Writer

Two longtime Los Angeles County gang members will stay behind bars for murder, the California Supreme Court ruled Monday, overturning a lower court decision that would have set them free.

In a 6-1 decision, the state high court upheld the murder convictions of Tracy L. Batts, 37, and Terrance McCrea, 41, members of Compton’s Atlantic Drive Crips gang, who were convicted in a retrial after a judge abruptly ended the first trial because of misconduct by Los Angeles County prosecutors.

The court’s decision establishes rules for determining when defendants must be freed, rather than retried, after trials are aborted because of prosecutorial misconduct.

“As a practical matter, retrial is likely to be barred ... only in exceptional circumstances,” Chief Justice Ronald M. George wrote for the court.


Attorneys for the pair had argued that Batts and McCrea were retried in violation of state and federal constitutional protections against double jeopardy, which can prevent a defendant from being tried twice for the same offense.

A state Court of Appeal in Los Angeles agreed, holding on constitutional grounds that a defendant cannot be retried if the prosecutor committed misconduct in hopes of obtaining a mistrial and another chance to convict.

But the California Supreme Court said Monday that the state Constitution offers more protection than federal law. Under the state Constitution, criminal charges also must be dismissed if the prosecutors committed misconduct because they feared an acquittal, and if the defendants in fact had a reasonable prospect of acquittal, according to the decision.

The court majority upheld the murder convictions of Batts and McCrea anyway, concluding that prosecutors did not intend to provoke a retrial, nor were they trying to thwart probable acquittals.


An order that leads to the dismissal of criminal charges without a trial is an “unusual and extraordinary measure that properly should be invoked only with great caution,” George wrote.

The prosecutorial misconduct occurred in 1999, after the state’s prime witness had been murdered. Prosecutors were allowed to read testimony that the dead witness had already given, but by law were barred from telling the jury the witness was dead. Instead, the prosecutors were simply to say the witness was no longer available.

A defense lawyer asked a police detective why prosecutors had paid the witness $1,500 as part of a witness relocation program. The defense lawyer questioned whether the money was actually a “payoff” for the previous testimony.

During a court recess, Deputy Dist. Attys. Phillip Stirling and Larry Droeger met with the detective and advised him to say on the stand why the witness was unavailable if the defense failed to object to the question.


When Stirling later asked the detective on the stand why the witness had not testified during the preliminary hearing, the detective answered, “He was murdered.”

Los Angeles Superior Court Judge Jack W. Morgan, who was presiding over the case, told the lawyers he was stunned by the prosecutor’s question, and declared a mistrial. Morgan refused to throw out the case, though, because he said he did not believe the prosecutors deliberately sought a mistrial.

In Monday’s decision, Justice Carlos R. Moreno dissented, saying he had “no doubt” that the prosecutors deliberately broke the law in hopes of getting a mistrial. He observed that the prosecutors’ conduct violated a state law and a court order in the case.

“The prosecutors’ misconduct was deliberate and calculated,” Moreno said. “This was not a rash decision or improper question blurted out in the heat of battle.”


Chris R. Redburn, who represented Batts in the appeal, said the prosecutors violated the court order and the law because they feared that they were going to lose the case, and wanted a mistrial. The case will now return to the state Court of Appeal.

Batts and McCrea were sentenced to 88 years to life and 90 years to life, respectively, for murder and attempted murder. They were convicted of killing Brian Jones and wounding his brother, Benczeon, after an argument in 1997. The state high court said there was evidence that Batts and Benczeon Jones may have engaged in a territorial dispute over illegal drug sales.