Michigan Supreme Court Holds Gang-Related Evidence Admissible For Limited Purposes
On July 11th, 2014, the Michigan Supreme Court held in a criminal case that gang-related evidence offered by an expert witness is admissible to assist the trier of fact in understanding gang-related issues not normally known by jury members, but is not admissible to show that a particular gang member acted in conformity with previous gang behavior on a particular occasion.
In People v Bynum, Docket No. 147261, the Michigan Supreme Court addressed an appeal that centered around whether the trial court committed legal error during trial when the prosecution offered the expert testimony of a law enforcement officer who possessed specialized knowledge and experience with local gangs.
From the opinion's syllabus:
Levon L. Bynum was charged in the Calhoun Circuit Court with first-degree murder, two counts of assault with intent to murder, carrying a concealed weapon, and felony-firearm following a shooting that had occurred outside a party store in Battle Creek. Bynum and some of the others present were alleged to be members of the Boardman Boys gang, whose territory (or “turf”) bordered the party store. Bynum claimed that he acted in self-defense. Tyler Sutherland, an officer in the Battle Creek Police Department’s Gang Suppression Unit, was proffered at trial as an expert witness on gangs, gang membership, and gang culture with a particular expertise about Battle Creek gangs. He had also prepared a PowerPoint presentation about gangs and gang culture that connected Bynum to the Boardman Boys and showed how Battle Creek gangs appropriated symbolism from nationally organized gangs. Defense counsel offered general objections to the testimony. The court, Conrad J. Sindt, J., allowed Sutherland’s testimony and PowerPoint presentation, concluding that the evidence was relevant to prove Bynum’s motive for shooting the victims. Defense counsel did not specifically object to any of this testimony after the initial, general objection to Sutherland’s testimony, and the jury found Bynum guilty as charged. Bynum’s appellate defense counsel subsequently moved for a new trial, arguing the ineffective assistance of trial counsel for failing to object to Sutherland’s testimony as improper propensity evidence. The court rejected the ineffective-assistance claim because it was satisfied that trial counsel’s objections had preserved the claimed error in Sutherland’s testimony. The court also held that the expert witness testimony was appropriate. Bynum appealed. The Court of Appeals, BORRELLO, P.J., and M. J. KELLY, J. (BOONSTRA, J., dissenting), reversed Bynum’s convictions in an unpublished opinion per curiam, issued April 18, 2013 (Docket No. 307028). The Supreme Court granted the prosecution’s application for leave to appeal. 495 Mich 891 (2013).
In an opinion by Justice KELLY, joined by Justices CAVANAGH, MARKMAN, ZAHRA, MCCORMACK, and VIVIANO, the Supreme Court held:
If the prosecution presents evidence to show that the crime at issue was gang-related, expert testimony about gangs, gang membership, and gang culture may be admitted as relevant under MRE 402 and of assistance to the trier of fact to understand the evidence or determine a fact in issue under MRE 702. The prosecution may use an expert to identify the significance of certain evidence such as symbols, clothing, or tattoos that by itself would not be understood by the average juror to be connected with gangs or gang-related violence. MRE 404(a), however,
precludes testimony that is specifically used to show that on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members.
1. With regard to the admission of expert witness testimony, MRE 702 requires the trial court to determine that the expert testimony will assist the trier of fact to understand the evidence or determine a fact in issue. If the average juror does not need that aid, the proffered testimony is inadmissible because it merely deals with a proposition that is not beyond the ken of common knowledge. In addition, MRE 402 provides that evidence that is not relevant is inadmissible. Finally, MRE 404(a) provides that evidence of a person’s character or character traits is not admissible to prove action in conformity with that character or those traits on a particular occasion.
2. MRE 402 and MRE 702 require a trial court to act as a gatekeeper of gang-related expert testimony and determine whether that testimony is relevant and will assist the trier of fact to understand the evidence. Evidence regarding a defendant’s gang membership is relevant and can assist the trier of fact when there is factual evidence that the crime at issue is gang-related. Expert testimony about gang membership is ordinarily of little value to a fact-finder unless there is a connection between gang membership and the crime at issue. Identifying whether a crime is gang-related, however, might require an expert to establish the significance of seemingly innocuous matters (such as clothing, symbolism, and tattoos) as features of gang membership and gang involvement. Expert testimony that the crime was committed in rival gang territory might also be necessary to show why the defendant’s presence in that area was motivated by his gang affiliation. That is, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge, and the relevance of gang-related expert testimony might be established by factual evidence that at first glance does not indicate gang motivations, but provides the gang-crime connection when coupled with expert testimony. In the context of gang-related violence, expert testimony regarding general characteristics of gang culture may be admitted for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. The testimony must otherwise meet the rules of evidence before it can be admitted, however, and MRE 404(a) limits the extent to which a witness may opine about a defendant’s gang membership. An expert may not testify that on a particular occasion a gang member acted in conformity with character traits commonly associated with gang members because that testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.
3. Sutherland testified that the shootings occurred on disputed gang territory and connected Bynum and the other shooters to the Boardman Boys. The location of the crimes, when combined with evidence that multiple gang members were involved in the crimes, provided sufficient factual evidence to conclude that expert testimony regarding gangs, gang membership, and gang culture would be relevant and helpful to the jury in this case.
4. The prosecution argued that Sutherland’s testimony was proper evidence of motive. Even if expert testimony about gang culture may be introduced, however, MRE 404(a) precludes the expert from providing evidence of a gang member’s character to prove action in conformity with gang membership. A gang expert may testify that a gang protects its turf through violence as an explanation of why a gang member might be willing to commit apparent random acts of violence against people whom the gang member believes pose a threat to that turf. Sutherland did so in discussing aspects of gang culture generally, and that testimony was proper under MRE 404(a). Sutherland also opined, however, that Bynum acted in conformity with his gang membership with regard to the specific crimes in question. In particular, Sutherland used Bynum’s gang membership and the character traits associated with that membership to describe what he saw on a surveillance video that recorded the incident. In so doing, his testimony suggested Bynum’s guilt in the underlying crime. In contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland exceeded the limitations of expert testimony when he opined that he believed that Bynum and others went to the party store waiting for someone to give the Boardman Boys the chance to protect their turf. That testimony was an opinion that Bynum acted in conformity with the character traits commonly associated with gang members on a particular occasion, in violation of MRE 404(a).
5. Although there was overwhelming evidence that Bynum participated in the shooting that led to the victim’s death and his self-defense theory was not particularly persuasive, the evidence of Bynum’s premeditation was not overwhelming. As a result, it is likely that, had the jury not heard the propensity evidence or been told by an expert that Bynum and his friends went to the store with the intent to shoot someone, it would have found that the prosecution had not proved beyond a reasonable doubt that Bynum premeditated. Moreover, Sutherland’s testimony further weakened Bynum’s self-defense claim by suggesting that Bynum’s propensity for violence meant that he intended to shoot someone at the party store on the night of the shooting. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings because it inevitably led the jury to find on the basis of his membership in a gang and the asserted character trait that he was therefore prone to violence that Bynum premeditated the murder. Therefore, Bynum is entitled to relief.
6. The prosecution argued that any evidentiary error would not have affected the jury’s rejection of Bynum’s self-defense claim, only its finding of premeditation, and entry of a guilty verdict on the lesser included offense of second-degree murder, which does not require a finding of premeditation, was appropriate as relief in this case. The prejudice regarding premeditation could not be easily separated from the prejudice regarding self-defense in light of the evidence presented, however, and Bynum was entitled to a new trial.
Result of the Court of Appeals’ judgment affirmed and case remanded.