Gutierrez v. State

• Citation: 423 Md. 476,32 A.3d 2
• Decision Date: 29 November 2011
• Docket Number: 2009.,No. 98,Sept. Term,98
• Parties: Mario Rodriguez GUTIERREZ v. STATE of Maryland.
• Court: Court of Appeals of Maryland

32 A.3d 2

423 Md. 476

Mario Rodriguez GUTIERREZ

v.STATE of Maryland.

No. 98

Sept. Term

2009.

Court of Appeals of Maryland.

Nov. 29, 2011.

Andrew V. Jezic (Jezic, Krum & Moyse, Wheaton, MD), for Appellant.

Jonathan Bloom (Law Offices of Jonathan Bloom, Rockville, MD), on brief, for Appellant.

Diane E. Keller, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS and BARBERA, JJ.ADKINS, J.

In this case we must determine whether expert testimony about the history, hierarchy, and common practices of a street gang is admissible as proof of motive or is prohibited by Maryland Rule 5–404(b) as evidence of other crimes, wrongs or acts. We hold that such testimony is permissible where fact evidence establishes that the crime charged was gang-related and the probative value of the testimony is not substantially outweighed by any unfair prejudice to the defendant.

Defendant Mario Rodriguez Gutierrez was charged with first-degree murder, first-degree assault, and use of a handgun in the commission of a crime of violence following the shooting death of Francisco Quintanilla. At trial, witnesses testified that the incident was linked to Gutierrez's affiliation with the MS–13 street gang. The court also permitted testimony, over Gutierrez's objections, of a “gang expert” who generally described the violent customs of MS–13, including its initiation practices and culture of retaliation for perceived insults. A Prince George's County jury convicted Gutierrez of the murder, and he appealed the conviction to the Court of Special Appeals. On our own initiative, we granted certiorari before argument in the Court of Special Appeals and affirm the conviction.

FACTS AND LEGAL PROCEEDINGS

Around midnight on July 14, 2007, Francisco Quintanilla was standing with a group of friends outside a house in Riverdale, in Prince George's County. A black Honda Civic containing four males approached the house and the front passenger addressed the group, shouting “Mara Salvatrucha[.]” The witnesses interpreted this statement to mean that the passenger was a member of the MS–13 street gang. The passenger then demanded to know the gang affiliation of the assembled group, including Quintanilla. One of Quintanilla's companions answered, saying that he did not belong to any gang, while another member insulted MS–13. The passenger responded by firing multiple shots into the group, fatally wounding Quintanilla.¹ The black Honda then immediately fled the scene.

Ellen Villatoro was a part of the group in front of the house and claimed to have had a clear and sustained view of the shooter. On July 24, 2007, she met with detectives in an attempt to identify the shooter, whom she described as a “[h]ispanic male, young looking, Asian look, acne, curly hairstyle.” The detectives showed Villatoro approximately 400 photos, but without success. Gutierrez's photo was not among those shown to Villatoro at that time. On September 5, 2007, after further investigation, detectives met with Villatoro once again to present her with a photographic array. This time, Gutierrez's picture was among the six in the array, and Villatoro confidently identified him as the shooter. A week or two later, the police took Gutierrez into custody.

At trial, Luis Alvarado–Pineda, Gutierrez's co-defendant driver who turned State's witness, testified that, on the night of the shooting, he received a call from Gutierrez saying that they “should head over to Riverdale.” Alvarado–Pineda confirmed that Gutierrez was riding in the front passenger seat, and that two other males were sitting in rear passenger seats. Once in Riverdale, the group spotted the party and drove by two or three times, until Gutierrez told Alvarado–Pineda to stop in front of the house. Then, according to Alvarado–Pineda, a member of the party insulted Gutierrez for representing that he belonged to MS–13 and Gutierrez responded by pulling out a gun and firing four shots into the crowd.

The prosecution also introduced pictures from Gutierrez's MySpace webpage. One of Gutierrez's fellow passengers, Hector Tirado, testified for the State and identified Gutierrez's gestures as those used by members of MS–13. He identified Gutierrez as the shooter that night. A transcript of Tirado's grand jury testimony, in which he claimed that Gutierrez shot Quintanilla to gain entry into MS–13, was also admitted into evidence.

The prosecution then called Sergeant George Norris, Supervisor of the Prince George's County Gang Unit, as an expert witness “in the area of MS–13 and gangs in general.” Norris provided jurors with an overview of the MS–13 culture. He began by explaining that “MS–13” stands for “Mara Salvatrucha,” with “mara” meaning gang or group, “salva” referring to El Salvador, and “ trucha” translating as “watch out” or “look out.” The 13 in the gang's name, he testified, is “indicative of their alliance with the Mexican Mafia [.]” Norris also described how prospective members are inducted, or “jumped,” into MS–13, which involves a 13 second beating by four or five gang members. He identified Langley Park, the location of the apartment where Gutierrez, Alvarado–Pineda, and Tirado were congregated before driving to Riverdale, as an MS–13 stronghold. Riverdale (the scene of the crime), on the other hand, was a predominantly Mexican neighborhood and “[t]he gangs within that community are more of the Mexican-based gangs as opposed to MS–13, which is predominantly Central American based.” Thus, Riverdale is “an area where rival gang members are expected to be.” Norris explained that MS–13 members respond to criticism of their gang or untruthful displays of MS–13 membership (an act known as “false flagging”) with violence “up to death.” In fact, MS–13 is “the gang that [law enforcement] had seen the most violence with recently for the past four, four and a half years in this region....” Finally, Norris, who often conducted internet investigations by visiting gang members' MySpace webpages, articulated a belief that Gutierrez was affiliated with MS–13 based on pictures of the defendant taken from MySpace.

During the lower court proceedings, defense counsel attempted to prevent the admission of evidence of MS–13 affiliation four separate times. Prior to trial, defense counsel moved in limine to bar “any testimony as to [MS–13] and [Gutierrez's] involvement in a gang.” The Circuit Court, relying on Ayala v. State, 174 Md.App. 647, 923 A.2d 952 (2007), denied the motion on grounds that the State was using the gang evidence to prove motive. Again, before voir dire, the defense renewed its “motion to exclude testimony by any expert on gangs” because news reports of a supposed gang- related fatality in Riverdale the week before trial rendered such evidence unduly prejudicial to Gutierrez. The court once again denied the motion, but asked that neither side mention the MS–13 connection during jury selection so as not to dissuade jurors from serving. As the State was about to make its opening remarks, defense counsel asked the court for a standing objection to “any reference to gang membership, gang procedures, or MS–13 except as that may have been uttered by any person at the time [of the shooting].” The court granted a “standing objection to any reference that the State makes to MS–13.” The final objection occurred immediately before Norris was admitted as an expert, when defense counsel asked for a continuing objection to any testimony presented by Norris that did not pertain to the events of July 14, 2007. The court also granted this continuing objection.

Following a three-day trial, a jury convicted Gutierrez of first-degree murder and the use of a handgun in the commission of a felony. The Circuit Court imposed a life sentence on Gutierrez for murder and a consecutive 20 year sentence for his handgun conviction. Gutierrez appealed his conviction to the Court of Special Appeals, and, on our own initiative, we granted certiorari to consider the following question:

Did the trial court err by admitting “expert” testimony regarding the violent street gang MS–13 such that said testimony potentially misle[d] the jury to believe that defendant's possible membership in said gang cause him to form the intent for premeditated murder rather than inferring said intent from the facts of the crime?

Gutierrez requests that this Court vacate his convictions and remand the case to the Circuit Court with the direction that no expert testimony “regarding propensity be admitted as to ... Gutierrez'[s] alleged involvement or non-involvement in MS–13.”

DISCUSSION

I. Standard of Review

Maryland Rules 5–702 through 5–706 govern expert testimony. Specifically, Rule 5–702 provides:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

In Raithel v. State, 280 Md. 291, 372 A.2d 1069 (1977), this Court articulated the standard of review for the admissibility of expert testimony:

[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. It is well settled, however, that the trial court's determination is reviewable on appeal, and may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion.

Id. at 301, 372 A.2d at 1074–75 (quotation marks and citations...