In the present case, Shelton Burris,
The State moved, prior to trial,
The motive ... is that supposedly they’re alleging that Mr. Burris shot Mr. Dickerson because Mr. Dickerson owed Bam money. Not that it had anything to do with the fact that either of these gentlemen may or may not have been in the organization.... All the State wants to do is taint the water in this case and taint [Burris] and say, okay, he’s a gang member.
The court, thereafter, ruled the evidence admissible to prove motive based upon its understanding of the State’s proffer:
All right. Based upon my understanding at this time and in what was presented to me before, I am prepared to allow this information to come in. I believe that it is relevant in that the theory of the State’s case as all parties seem to consider that the murder was as a result of a debt that was owed, but why the Defendant is the person who did the shooting because a debt was owed to Bam involves the question of their relationship. That their relationship that the State is prepared to prove involves the Black G[ue]rilla[5 ] Family — I believe makes that relevant evidence.[6 ]
The State, at trial, called several crime scene witnesses and the medical examiner, in addition to three fact witnesses who the State indicated, prior to trial, would likely recant. One of
The State then called Sergeant Workley and, prior to his taking the stand, a bench conference ensued during which the State identified various photographs of Burris’s tattoos that it intended to present to Sergeant Workley for the purpose of having the Sergeant explain their relationship to Burris’s membership in BGF. Burris’s counsel objected to Sergeant Workley testifying as to Burris’s tattoos, “because the[ ] tattoos [were] not relevant to th[e] case in any, in any way
As these [tattoos] have an appearance of prejudice because there are some nasty things said, but just as if he had decided as he may someday to have tattooed I killed Hubert Dickerson, that if he chose to have it written on him may come back to be evidence against him at some point. What I’m going to do is allow the State after establishing the S[e]rge[a]nt’s expertise to go through pictures [of Burris’s tattoos] one at a time and ask if there is anything in the picture that you see that is of significance in your determination on this question of your expert opinion. If they are, then I’ll allow him to say what it is. If, in any of these pictures he says, I don’t know what it is, it doesn’t mean anything, we can take that picture out and it’s, it’s useless, but we have to understand that I am expecting the Detective S[e]rge[a]nt to say that within the world of gang orientation, marks are left in places, on walls, on buildings, on cars, on people so that other members of their own gang and others gangs understand what they’re saying. If the Detective S[e]rge[a]nt can interpret that for us, then he can interpret it.
Sergeant Workley was then qualified as an expert “in the field of gangs, gang membership, gang insignia, gang ranking, [and] gang identification.” Burris’s counsel interposed numerous objections during Sergeant Workley’s testimony,
*378 [STATE’S ATTORNEY]: [0]nce in a gang, can members quit whenever they want to?
[SERGEANT WORKLEY]: Usually not.
[STATE’S ATTORNEY]: And what is a phrase like blood in, blood out mean?
[SERGEANT WORKLEY]: They’re a blood member for life.
[STATE’S ATTORNEY]: And does the concept of respect, the word respect have a special significance in the world of gang, criminal street gangs?
[SERGEANT WORKLEY]: Absolutely one hundred percent. That’s their code, their code, their creed they live by. They have to be respected.
[STATE’S ATTORNEY]: And how does a gang member gain respect in their membership ... ? ... Generally speaking.
[SERGEANT WORKLEY]: Generally speaking, by committing crimes.
[STATE’S ATTORNEY]: Does turf or territory have special significance in the gang culture?
[SERGEANT WORKLEY]: Sure.
[STATE’S ATTORNEY]: And what about the term payback? ....
[SERGEANT WORKLEY]: Just like any other criminal enterprise, if you do something against, you know, even going as far back as prohibition, when you did something against somebody else it was always pay back for whatever you did and whatever happens. There’s always conse*379 quences to your actions and actions always have consequences.
Sergeant Workley further testified about the history, hierarchy, organization, and practices of BGF:
[STATE’S ATTORNEY]: Can you tell me ... briefly what the Black G[ue]rilla family is?
[SERGEANT WORKLEY]: BGF started out, they still are a prison gang. They’re a prominent prison gang in the State of Maryland. They control most of the jails in the State of Maryland. They control what goes on inside and they get information that happens on the outside and generally inside speaking, they control the narcotic trade inside, inside the jails and the inflow of information going back and forth.
[STATE’S ATTORNEY]: Well, let’s break it down. Does BGF have a constitution?
[SERGEANT WORKLEY]: Yes, they do.
[STATE’S ATTORNEY]: Or a creed. Can you explain what that means?
[SERGEANT WORKLEY]: We learned BGF inside the prison walls, they have a leader and that leader came up with the concept, core ideas. It’s just like any other business. Any other gang, there’s a leader. He came up with concepts. There’s a rank structure. There’s rules to be followed. If you don’t follow those rules, there’s consequences and actually what they did inside the prison walls is that they came up with a way and they found an author and they authored a book, a manual for them to follow that creed by.
[STATE’S ATTORNEY]: And based on your experience and training, is the Black G[ue]rilla Family run like a business?
[SERGEANT WORKLEY]: Absolutely.
*380 [STATE’S ATTORNEY]: And just, does Black G[ue]rilla Family use like it’s own language?
[SERGEANT WORKLEY]: Absolutely. When most members are inducted into BGF, they are taught that, basically almost like a Bible. Like we, you know we teach our regular, you know, for the ladies and gentlemen of the jury, like your kids, you’re teaching them Bible study. They have, you know what they go by and actually they speak Swahili and the reason they speak Swahili is so the prison officials can’t understand what they’re saying and sometimes most of them, they learned how to write in that so that can’t be — it’s harder, it’s harder to break their codes.
[STATE’S ATTORNEY]: And would you say that — does Black G[ue]rilla Family actually even have things like their own laws and guidelines?
[SERGEANT WORKLEY]: Absolutely. They have a constitution within that book that they published. You know, if you do this, this is what the actual consequences are. This is what you’re allowed to do. This is what we don’t allow you to do.
[STATE’S ATTORNEY]: ... Does Black G[ue]rilla Family, do they rank their members?
[SERGEANT WORKLEY]: Sure, absolutely.
[STATE’S ATTORNEY]: Do people have their place in that organization?
[SERGEANT WORKLEY]: Yes, they do.
[STATE’S ATTORNEY]: What is a, what would the, what would the term hit man be in Black G[ue]rilla Family? What would that person be?
[SERGEANT WORKLEY]: Just like you said. That person goes out and they carry out the orders of violence either by assault and murder.
Sergeant Workley then testified as to his ultimate conclusion that Burris was a member of BGF:
*381 [STATE’S ATTORNEY]: Now S[e]rge[a]nt Workley, in the course of your work, do you review law enforcement records about individual gang memberships?
[SERGEANT WORKLEY]: Yes, I do.
[STATE’S ATTORNEY]: And has the Department of Corrections listed the Defendant Tyrone Burris as a member of the Black G[ue]rilla Family?[10 ]
[SERGEANT WORKLEY]: Yes, they have.
[STATE’S ATTORNEY]: Now based on information that you were able to review and your expertise in gangs, can you make a conclusion as to whether the Defendant is a member of the Black G[ue]rilla Family?
[SERGEANT WORKLEY]: Mr. Burris is a member of the Black G[ue]rilla Family.
Sergeant Workley, thereafter, testified regarding tattoos on Burris’s face and upper body as seen in photographs proffered for identification by the prosecutor.
Knowing that he’s a member of the Black G[ue]rilla Family, two things. MOB in Baltimore means member of blood or money over bitches. Since he’s a member of BGF, it’s probably money over bitches....
A tattoo on Burris’s chest of “Sixx 9,” according to Sergeant Workley, would be his “street name.” A tattoo on Burris’s left biceps depicting a weapon being fired with the words “Death B4 Dishonor” was also, according to Sergeant Workley, common “on guys that are inside the walls. They get tattoos and come out basically depicting and saying, you know, they’ll die before they dishonor themselves.” Sergeant Workley identified an “OG” tattoo on Burris’s left forearm as meaning “original gangster” and, finally, opined that Burris’s tattoo on that same forearm which read “real nigga don’t die,” was similar to others he had seen on gang members.
After Sergeant Workley’s testimony Burris’s counsel restated for clarification the basis for his numerous objections interposed during that testimony:
You’ve got a murder case here and to the best of what I’ve heard in this case and I could be wrong, but to the best of what I’ve heard in the case, nobody ever said that this was a gang ordered hit. So, that’s why I have to object to all this stuff about the gang and the prejudice is outweighing the probative value.
Then you have these tattoos that have guns. These tattoos have death before dishonor and all this other stuff and this is a murder case and none of this stuff has anything to do with the identification of the Defendant involved in this particular murder. It isn’t like anybody said, I saw this tattoo.... So, we’ve got a murder case and I just think that the prejudice clearly outweighs the probative value. It poisons the well for the jury. So, that’s why I have to object to all of these and [Sergeant Workley’s] testimony.
Because we have witnesses who have changed their testimony from the time that they met with the police shortly after this event, to taking four[12 ] different tacts of denying their statements....
Each of them in their statements indicate some level of fear of the Defendant, some specifically stating because of his gang involvement or Barn’s gang involvement. That’s how it got to be relevant in the case. It was in the statements. I wasn’t going to clear it out of the statements.
Now, the question is whether or not the State should be allowed to prove that the Defendant is in fact a member of a gang. I think because of the way in which the information came from the reluctant witnesses, it is unavoidable. Had the witnesses not been and I am satisfied afraid to testify, we could have kept this all out, but because they changed their testimony because I am satisfied that they were afraid to testify truthfully, then everything they said virtually has to come in to explain why they’ve changed their testimony....
Now, [Sergeant Workley] who is before us now and the evidence that we’re considering is only for the purpose of establishing whether or not the Defendant is a member of the gang. I remind you and the record that in anticipation of this, we asked the general voir dire question about whether information or references about gang activity would interfere with the juror’s ability to render a fair and impartial verdict. That said, ... I am anticipating from [both Burns’s counsel and the prosecutor] some form of specific instruction for me to give them about how they should be processing this information and I’ll consider what*384 either one of you suggests about that instruction, but that’s later on. So, I believe your position and the basis for my ruling are ... on the record as they can be.
Burris was convicted of first degree murder and use of a handgun in the commission of a crime of violence. The Court of Special Appeals, in a reported opinion, affirmed Burris’s convictions determining, inter alia, that the Circuit Court did not err in permitting Sergeant Workley to testify. Burris v. State,
1. Whether it was error for the trial court to admit extensive gang-related evidence, including expert testimony, that Mr. Burris was a member of the Black Guerrilla Family gang?
Whether the Court of Special Appeals erred in holding that expert testimony on gangs was admissible to explain why several witnesses recanted prior to trial?
We shall hold that the trial court abused its discretion in allowing Sergeant Workley to testify as he did, because the probative value of his testimony was substantially outweighed by unfair prejudice, and because this error was not harmless, we shall reverse and remand for a new trial.
The State sought to introduce Sergeant Workley’s testimony under Rule 5-404(b), positing that Burris’s BGF gang membership was a bad act that was probative of his motive to kill Mr. Dickerson. Rule 5-404, governing admission of prior bad acts, provides:
Character evidence not admissible to prove conduct; exceptions; other crimes.
(a) Character evidence. (1) Prohibited uses. Subject to subsections (a)(2) and (3) of this Rule, evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.
(2) Criminal and delinquency cases. Subsection (a)(2) of this Rule applies in a criminal case and in a delinquency*385 case. For purposes of subsection (a)(2), “accused” means a defendant in a criminal case and an individual alleged to be delinquent in an action in juvenile court, and “crime” includes a delinquent act as defined by Code, Courts Article, § 3-8A-01.
(A) Character of accused. An accused may offer evidence of the accused’s pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.
(B) Character of victim. Subject to the limitations in Rule 5-412, an accused may offer evidence of an alleged crime victim’s pertinent trait of character. If the evidence is admitted, the prosecutor may offer evidence to rebut it.
(C) Homicide case. In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Character of witness. Evidence of the character of a witness with regard to credibility may be admitted under Rules 5-607, 5-608, and 5-609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.
Rule 5-404(b) is a rule of exclusion, State v. Westpoint,
Admissibility of prior bad act evidence is limited to situations in which the evidence is “specially relevant” to a contested issue, beside an accused’s propensity to commit crime, “such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Rule 5-404(b); see Streater,
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In Gutierrez v. State,
In the case, a car carrying Gutierrez and three other men approached a house where a group of people was congregating and Gutierrez “addressed the group, shouting ‘Mara Salvatru
At Gutierrez’s trial, several witnesses testified about what Gutierrez shouted and also that the victim’s murder was “motivated by Gutierrez’s ties to MS-13,” and was part of Gutierrez’s initiation into the gang, because “ ‘[y]ou have to kill someone to get into MS[-13.]’ ” Id. at 497,
[Sergeant] 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[.]” [Sergeant] 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, [and other occupants of the car] 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.” [Sergeant] 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*388 enforcement] had seen the most violence with recently for the past four, four and a half years in this region----” Finally, [Sergeant] 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.
Id. at 484,
Gutierrez argued that he was entitled to a new trial, because “the trial court abused its discretion by admitting [Sergeant] Norris’s irrelevant and unfairly prejudicial testimony on gang activity.” Id. at 486,
We agree with the Supreme Court of New Mexico that courts must be vigilant in guarding against the improper use of gang affiliation evidence “as a backdoor means of introducing character evidence by associating the defendant with a gang and describing the gang’s bad acts.” [State v. Torrez,146 N.M. 331 ,210 P.3d 228 , 235 (2009) ]. Thus, we hold that the threshold requirement for the admissibility of gang expert testimony is fact evidence showing that the crime was gang-related. Accord Torrez,210 P.3d at 235-36 . Proof of such a link transforms a defendant’s gang membership, current or prospective, from an impermissible prior bad act to a concrete component of the crime for which the defendant is on trial. To be clear, this requirement may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.... In adopting this threshold requirement, we are simply saying that a defendant’s membership in a gang, in and of itself, is not enough.
Gutierrez,
With regard to four of the five statements uttered by Sergeant Norris that Gutierrez specifically challenged, we concluded “the trial court did not abuse its discretion when permitting the jury to hear and consider [them].”
We turn, then, to application of the two-part test in Gutierrez to this case by initially asking whether fact evidence was adduced sufficient to meet the threshold, requiring a nexus between the crime and current gang membership.
Burris contends the “threshold requirement” for admission of gang evidence was not satisfied in his case, because he was not charged with a gang-related crime, such as participation in a “criminal gang” under Sections 9-804(a) or (b) of the Criminal Law Article, Maryland Code (2002, 2012 Repl.Vol.),
The threshold for the admission of gang evidence does not require that the defendant be charged with a “gang crime” or conspiracy to commit a crime with a gang member. Although Gutierrez also was charged with conspiracy to commit murder and acquitted of that crime, his having been so charged did not influence our analysis of whether gang evidence was properly introduced in that case.
The theory of the State’s case here was, and the trial judge understood, the relationship of gang membership to the crime to be that Burris was a “hit man” in BGF, Burris was a “boss”
Having determined the threshold for admissibility of gang evidence was met, however, does not end our inquiry, as we still must determine whether the evidence should have been excluded because “its probative value is substantially outweighed by the danger of unfair prejudice” or because it was “needless presentation of cumulative evidence.” Rule 5-403. In the present case, the probative value of Sergeant Workley’s testimony was substantially outweighed by the danger of unfair prejudice and in some instances cumulative of other evidence adduced at trial.
In balancing probative value against prejudice “we keep in mind that ‘the fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in Rule 5-403.’ ” Odum v. State,
In Gutierrez,
Gangs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior. There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury’s negative feelings toward gangs will influence its verdict. Guilt by association is a genuine concern whenever gang evidence is admitted.
United States v. Irvin,
Sergeant Workley’s testimony, generally, painting BGF as a violent organization whose members would “[generally speaking” commit crime to “gain respect” was prejudicial to Burris because of its negative implication regarding Burris’s character. His testimony about BGF dealing narcotics in prison, controlling Maryland prisons, and concealing their illicit activities by speaking Swahili, in a case in which a prison environment was not implicated, clearly, was prejudicial.
Sergeant Workley’s testimony about Burris’s tattoos was graphic and inferential that Burris had a propensity to Mil and previously had been incarcerated, all of which were prejudi
In response to the prejudicial aspect of Sergeant Workley’s testimony, the State argues Sergeant Workley’s testimony was “highly probative,” “because [Burris’s] membership in BGF was relevant to explaining both why [Burris] murdered the victim over a debt owed to Bam and why the State’s witnesses would recant[.]” The Court of Special Appeals agreed, concluding it was “highly probative in identifying [Burris] as a member of the BGF, explaining the history and structure of the gang, and, thereby, explaining why [Burris] would commit a crime at Barn’s — a gang boss’s — direction.” Bums,
All four of the State’s fact witnesses — Lockwood, Sparrow, Falcon, and Johnson — expressed fear ... during their interviews [with investigators]. [Burris] has visible gang-related tattoos up and down each arm, and the tattoos clearly identify [Burris], who was known to and seen by the witnesses, as a member of a gang.... As such, in addition [to recanting witnesses] specific mentions of [Burris’s] gang affiliation and their fear, it is a reasonable inference that all of the witnesses’ fear and subsequent recantations at trial resulted from [Burris’s] gang affiliation coupled with either directly seeing [Burris] shoot the victim or hearing [Burris] admit to shooting the victim.
Burris,
With regard to identifying Burris as a member of BGF, Sergeant Workley’s testimony was cumulative of other evi
Sergeant Workley’s testimony also lacked substantial probative value with regard to Burris’s motive to kill to collect a debt, because Sergeant Workley did not testify about any aspect of that linkage. Rather, Sergeant Workley opined regarding BGF members studying their gang’s code or constitution as a child would study the Bible in “Bible study”; that there is a BGF “rank structure” and “rules to be followed” and “[i]f you don’t follow those rules, there’s consequences and actually what [BGF] did inside the prison walls is that they came up with ... a manual for them to follow that creed by”; that BGF is run like a “business”; and that members speak Swahili to avoid detection in prison. While Sergeant Workley did identify the role of a “hit man” within BGF, there was no association with that role and extortion. Similarly, Sergeant Workley’s testimony about Burris’s tattoos was not probative regarding either the identification of Burris as a member of BGF or the State’s theory of motive for him to kill to collect a debt for Bam in BGF.
With respect to the issue of admissibility of Sergeant Workley’s testimony relative to witness recantation, Sergeant Workley said absolutely nothing to connect Burris’s BGF membership to the reasons for several witnesses recanting in Burris’s case. Cf. People v. Gonzalez,
In gang culture, it was bad to be a ‘rat’ or a ‘snitch,’ i.e., someone who assisted law enforcement as a witness or an informant. [The expert] testified that such persons are often intimidated not to testify. It does not matter whether a person provides information against a fellow gang member or a rival gang member. Either way, the person is considered to be assisting law enforcement and might be intimidated.
Id. at 653-54. Sergeant Workley’s testimony lacked any such link between Burris’s gang membership and witness recantation and, therefore, lacked any probative value in this regard.
The State, nonetheless, would have us hold that any error admitting prejudicial and less probative evidence was harmless. It would be highly incongruous, however, were we to hold that evidence was both prejudicial and harmless. Enough said.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENTS OF CONVICTION AND REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF
Notes
. Burris was indicted as Tyrone Burris, but Burris styled his Petition for Writ of Certiorari as “Shelton Burris a/k/a Tyrone Burris v. State of Maryland." We shall, therefore, refer to Burris as Shelton Burris.
. Barn's given name was identified in testimony as Michael Davis or James Davis. Throughout the proceedings in this case, however, Bam has been his appellation and we shall continue its use.
. Prior to the initiation of the proceedings on July 20, 2010, with which we are concerned, a mistrial had been declared during or after jury selection in a prior trial that occurred on June 24, 2010. None of those proceedings are implicated here.
. The State, during the pre-trial motions hearing, did not proffer that the victim owed Bam or BGF money, but rather that Mr. Dickerson’s murder "probably was a case of mistaken identity....”
5. Throughout the trial transcript the name of the gang is spelled "Black Gorilla Family.” The name of the gang, however, is spelled “Black Guerilla Family.”
. Subsequent to the court's ruling, Burris’s counsel requested a continuing objection "to anything that has to do with the Black G[ue]rilla Family because I don't think it should be mentioned in this trial.” The trial court allowed for a continuing objection as to references to BGF in the pre-trial recorded statements of witnesses, "to the extent that it's mentioned by them, with them, to them and from them, I’ll allow your continuing objection.” The court, however, ruled that "[t]o the extent that it comes in beyond that from someone, I'll want you to object.”
. During their interviews with police, these three witnesses identified "69” or "6.9” as the nickname of the person committing the conduct that was the subject of the interview. One witness was unable to provide "69s” real name, but two others identified "69" as Shelton Burris.
. Rule 5-802.1(a) provides:
The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;....
. Burris’s counsel, in this regard, asked the court prior to Sergeant Workley’s testimony whether he needed to "object to every single thing or just take a continuing objection....” The Court responded, "I think you're objecting to his being called and qualified as an expert is sufficient to preserve the issue.... I think that if in fact you wish to object to anything beyond that, that ... it should be specific for some different reason rather than putting you in a position to have to underline each and every question and each and every answer as being prejudicial to your client.” Subsequent to Sergeant Workley’s testimony and the court’s ultimate ruling on the issue, the court opined: "I
. The prosecutor was apparently referring to a Department of Public Safety and Correctional Services ‘Tdentification/Intelligence Validation Worksheet” in which Burris had been classified as a BGF member. During the testimony of the investigating detective, the State sought to introduce this Worksheet into evidence along with a letter that Burris had sent while incarcerated which he signed “BGF 4 Life,” but Burris’s counsel's objection was sustained and the Worksheet and letter were not admitted. The court ruled, however, "when your expert on gangs testifies, you may ask your expert is there any reason to believe that he's a member of that and you may show him this and it may come in at that time, but I'm not allowing it in independent of anything else.” During Sergeant Workley’s testimony, the prosecutor did not seek to have the Worksheet introduced into evidence.
. These photos which had previously been authenticated by the testifying investigator eventually were offered and received into evidence after Sergeant Workley's testimony.
. The court was referring not only to Messrs. Sparrow and Lockwood, and Ms. Falcon, but also to Joshua Johnson who testified initially that he did not recall his pre-trial statement to investigators implicating Burris, but after having had his recollection refreshed with the transcript from that interview, testified.
. The five aspects of the expert's testimony that Gutierrez specifically challenged were:
(1) MS-13 is “the gang that we had seen the most violence with recently for the past four, four and a half years in this region....”
(2) The “13” in "MS-13” is “indicative of their alliance with the Mexican Mafia....”
(3) When a non-gang member uses hand-signs that identify him as a member of MS-13, also known as “false flagging,” he would “be subject to punishment up to death.”
(4) When responding to criticism of their gang, MS-13 members react with “[v]iolence ... [u]p to death.”
(5) In order to join MS-13, a prospective member must be "jumped in,” meaning that he is “beaten by usually four or five gang members. It’s called a 13. Because, technically, it’s suppose [sic] to be for 13 seconds.”
Gutierrez v. State,
. As explained by Professor Lynn McLain in her oft-cited treatise, when dealing with evidence of prior crimes, wrongs, or acts under Rule 5-404, “[i]n order to permit the required findings and balancing by the judge, the preferred method of initially presenting other crimes, wrongs, or acts evidence is by proffer outside the presence or hearing of the jury.” Lynn McLain, Maryland Evidence: State and Federal, § 404:5 (2d ed.2001) (footnote omitted). As we explained in Sifrit v. State,
Before other crimes evidence is admitted, a three-part determination must be made by the trial court. The first required determination is whether the evidence fits within one or more of the stated exceptions to Rule 5-404(b). Faulkner,314 Md. at 634 ,552 A.2d at 898____ The second requirement is that the trial court determine whether the defendant's involvement in the other act has been established by clear and convincing evidence. Id..... Lastly, the trial court must weigh the probative value of the evidence against any undue prejudice that may result from its admission. Id.
A trial court, “[a]s a final consideration,” assuming it rules evidence of other crimes, wrongs, or acts admissible, "should state its reasons for doing so in the record so as to enable a reviewing court to assess
. Sections 9-804(a) and (b) of the Criminal Law Article, Maryland Code (2002, 2012 Repl. Vol.) provide:
(a) Prohibited acts. — A person may not:
(1) participate in a criminal gang knowing that the members of the gang engage in a pattern of criminal gang activity; and
(2) knowingly and willfully direct or participate in an underlying crime, or act by a juvenile that would be an underlying crime if committed by an adult, committed for the benefit of, at the direction of, or in association with a criminal gang.
(b) Commission of underlying crime resulting in death of victim. — A person may not violate subsection (a) of this section that results in the death of a victim.
. As noted by the Court of Special Appeals, this Court has never addressed the issue of the whether gang evidence is admissible for the purpose of showing why witnesses recant pre-trial statements implicat