Ex parte Thomas

• Decision Date: 11 June 1993
• Citation: 625 So.2d 1156
• Parties: Ex parte Nathan Dwayne THOMAS. (Re Nathan Dwayne THOMAS. v. State). 1911445.
• Court: Alabama Supreme Court

Page 1156

625 So.2d 1156

Ex parte Nathan Dwayne THOMAS (Re Nathan Dwayne THOMAS. v. State).

1911445.

Supreme Court of Alabama.

June 11, 1993.

Darron C. Hendley, Montgomery, for petitioner.

James H. Evans, Atty. Gen., and Yvonne A.H. Saxon, Asst. Atty. Gen., for respondent.

PER CURIAM.

Nathan Dwayne Thomas petitioned this Court to grant a writ of certiorari to review the Court of Criminal Appeals' affirmance of his conviction of murder in the Montgomery County Circuit Court. After deciding that the issue possessed probable merit, we granted the writ.

The State charged Thomas with murder for his alleged participation in a "drive-by" shooting; the shooting was carried out from a car that contained four young males. The issue for our review--which is one of first impression in this state--is whether the trial court should have granted Thomas's motion for a mistrial after the prosecutor elicited testimony from another passenger of the car, Clarence Sweeney, that Thomas was a member of a "gang."

Thomas's argument is based upon the following events that occurred at his trial:

"Q. [by the district attorney] Clarence, are you a member of a gang?

"A. [by State witness Clarence Sweeney] No, sir.

"Q. Is Nathan a member of a gang?

"A. Used to be.

"DEFENSE COUNSEL HENDLEY: Objection. That is irrelevant, Judge. No probative value.

"THE COURT: Overrule.

"Q. Answer the question.

"A. Used to be.

"Q. Used to be a member of what gang, please?

"A. Vice Lords."

Later, Sweeney testified, without objection, that the driver of the car was a member of the "Bloods" gang and that Thomas and the driver were "not even in the same gang."

Thomas then moved for a mistrial, or, in the alternative, for a curative instruction. The trial court, after forbidding the parties from further mention of gangs, stated:

"I'm going to deny your motion for a mistrial. If you want me to give some kind of limiting instruction, I will entertain doing that. You prepare an instruction for me during the lunch recess and let me look at it. However, I'm concerned that any instruction you may bring may be more detrimental than it will be helpful to you."

Thomas argues that the testimony concerning his membership in a gang was irrelevant and so highly prejudicial as to require the trial court to grant his motion for a mistrial. The Court of Criminal Appeals agreed that the testimony was prejudicial, stating:

"We equate the association of the defendant with a 'gang' as evidence of a collateral criminal act that is presumptively prejudicial and that is admissible only when probative and under certain limited exceptions."

Thomas v. State, 625 So.2d 1149, at 1153 (Ala.Cr.App.1992).

The State, although implicitly agreeing that the testimony was irrelevant, nevertheless asserts that the testimony was not so prejudicial as to require a reversal. It asserts that the term "gang" does not necessarily indicate bad character or criminal activity on Thomas's part. We reject this argument, and agree with the reasoning of the Court of Criminal Appeals on this point. In light of the massive media coverage of gang violence in contemporary society, the assertion that a defendant's membership in a gang called the "Vice Lords" will not prejudice him in the eyes of a jury is simply untenable. See generally People v. Munoz, 157 Cal.App.3d 999, 204 Cal.Rptr. 271 (1984); State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (Ariz.App.1981); People v. Perez, 114 Cal.App.3d 470, 170 Cal.Rptr. 619 (1981); Susan L. Burrell, Gang Evidence: Issues for Criminal Defense, 30 Santa Clara L.Rev. 739 (1990). The State also argues that the testimony, although erroneously admitted, does not require a reversal because Thomas refused the trial court's offer to give a curative instruction. The Court of Criminal Appeals based its affirmance on this rationale.

Initially, we note that it is true that a mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice, Samuel v. State, 455 So.2d 250 (Ala.Cr.App.1984), and that the decision of whether to grant a motion for a mistrial rests within the sound discretion of the trial court. Ala.Code 1975, § 12-16-233; Ex parte Jefferson, 473 So.2d 1110 (Ala.1985), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 300 (1986). It is also true that under certain circumstances prejudicial testimony may be eradicated by curative instructions by the trial court. Cole v. State, 548 So.2d 1093 (Ala.Cr.App.1989); Jefferson, supra. Furthermore defense counsel's refusal of the trial court's offer to give curative instructions prevents the defendant from receiving relief on appeal under certain circumstances. Campbell v. State, 570 So.2d 1276 (Ala.Cr.App.1990); Carlisle v. State, 533 So.2d 645 (Ala.Cr.App.1987); Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.1980), cert. denied, 382 So.2d 632 (Ala.1980).

Here, however, the situation is very different from the situations presented in the cases cited above. First, the prejudice in those cases primarily resulted from inadvertent slips by witnesses. In contrast, here the prejudicial testimony was deliberately elicited by the prosecutor immediately after the defense had asked the trial court to poll the jurors to ascertain whether they had heard media references to gang-related activity in the case. Therefore, the jury had already heard references to gangs at least four times before it retired...