Andres CORTEZ v. STATE of Maryland.
No. 1952, Sept. Term, 2013.
Court of Special Appeals of Maryland.
Dec. 18, 2014.
105 A.3d 589
688
Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: MEREDITH, WOODWARD, PAUL E. ALPERT (Retired, Specially Assigned), JJ.
PAUL E. ALPERT (Retired, Specially Assigned), J.
Andres Cortez, appellant, was convicted by a jury sitting in the Circuit Court for Montgomery County of two counts of third-degree sexuаl offense and one count each of conspiracy
FACTS
The State‘s theory of prosecution was that at a party on October 4, 2012, appellant videotaped a sexual assault of the victim by members of the “Little R” gang. The victim, one of the men at the party, and several police officers testified for the State. The theory of defense was lack of criminal agency. Appellant‘s mother testified for the defense. Viewing the evidence elicited in the light most favorable to the State, the prevailing party, the following was established at trial.
Over thе summer and fall of 2012, Christopher Stultz worked with appellant in the kitchen of a restaurant in Montgomery County. In early November, appellant told Stultz that he wanted to show him something “funny” and then showed him a video on his cell phone. According to Stultz, the video showed three men having sexual intercourse with a woman who was “out of it.” Appellant told Stultz that he had videotaped it at a party, and Stultz recognized appellant‘s voice on the video. Stultz told the owner of the restaurant about the video, who in turn called the police.
A few days later, on November 9, the police executed a search warrant for appellant‘s home where he lived with his mother. The police recovered a cell phone on the floor of
That is Moreno trying to get some pussy, but is not. Laeda, you know what I‘m saying, you know what I‘m saying. That‘s [unintelligible] but—Mohammed, calm the fuck down. You know what I‘m saying. Smile fоr the camera, baby. Let me see some nipples. Sure, let me see some nipple. Let me see some boobs. Let me see some boobs. Let me see some [unintelligible]. That‘s the ass cheeks right there. We got it like that. That‘s how Morrow‘ll [sic] be doing it, yeah.
The police showed Stultz the video, who said it was not the same video that appellant had shown him at the restaurant, but it was the same woman and she looked “out of it.” Stultz identified appellant‘s voice as that on the videotape, as did the owner of the restaurant.2 Appellant was subsequently arrested and spoke with the police. The lead investigator testified that based on his conversations with appellant, he believed that the voice on the video was appellant‘s voice.
The police identified and located the victim on the videotape. When she saw the tape, she was shocked and upset. She testified that on the afternoon of October 4, 2012, she was walking in her neighborhood when a friend invited her to his apartment a couple of buildings away where he was having a party. When she arrived, there were about ten or so people present. She drank two or three beers, and then the party broke up when a fight erupted outside the building involving
The victim and the other men arrived at the apartment and hung out in the upstairs bedroom. While there she drank three beers, leaving the bedroom two or three times to use the bathroom, each time leaving her beer behind. At one point she felt “very tired” and sleepy, and she asked one of the men to give her a ride home. She was told to lie down, that they would drive her home later. The next thing she remembered was waking up the next morning. Her cell phone was missing as well as credit cards and сash from her wallet. She went downstairs and asked the two men present to drive her home. They refused but gave her money to take the bus home. She did not know she had been sexually assaulted and did not know who had filmed the video.
Cecil Burrows testified that he was at a friend‘s apartment with appellant and several others when the victim entered the party. A few hours later, he left with the victim, appellant, and three other men, and they went to his home in Olney. When they ran out of beer, he left to get more. He did not remember much about the evening but said he was not present when the video of the sexual assault was taken. When the police showed Burrows the video, which he said he had never seen, he identified the voice in the video as belonging to appellant.
Detective Troy Tippett of the Montgomery County Police Department was qualified as an expert in the field of criminal street gangs and gang activity. He testified that a criminal strеet gang is an association of individuals that band together to engage in criminal activity. “Little R” or in Spanish “La Erre” was a gang that appeared in Montgomery County in 2006 and was an offshoot of a Chicago gang. He testified that gang members formed an “R” with their hand and fingers to represent the gang. When the detective interviеwed appellant in connection with the assault on the victim, appellant admitted that he brought “Little R” to Montgomery County, that he was a member of Little R, and that his nickname was
The detective reviewed the videotape and opined that the sexual assault on the victim was gang-rеlated. He explained that during the video the men are displaying the “R” hand signal and shouting out the name of the gang, “La Erre.” He opined that the victim would be viewed as a trophy and recording the incident was memorabilia of the gang‘s activities. The purpose of the crime was to bolster their gang‘s name and to gain respect for their members.
Appellant‘s mother testified that the voice on the videotape was not her son‘s voice.
DISCUSSION
Appellant argues on appeal that the trial court erred in not severing his participation in a criminal gang charge from his remaining charges, i.e., two counts of third-degree sexual offense, one count of conspiracy to commit third-degree sexual offense, and one count of second-degree assault. He argues, as he did below, that the sexual assault crimes were self-explanatory and not related to gang participation, and that the gang evidencе was unduly prejudicial. The State responds that there was no error because evidence of gang activity was
The second question is, whether “the interest in judicial economy outweigh[s] any other arguments favoring severance?” Conyers, 345 Md. at 553. This question requires a balancing of intеrests by the trial court, and we will only reverse if the trial judge‘s decision “was a clear abuse of discretion.” Id. at 556. To resolve this second question, the trial court weighs the likely prejudice against the accused in trying the charges together against considerations of judicial economy and efficiency, including the timе and resources of both the court and the witnesses. Frazier v. State, 318 Md. 597, 608, 569 A.2d 684 (1990) (citing McKnight v. State, 280 Md. 604, 609-10, 375 A.2d 551 (1977)). We note that “once a determination of mutual admissibility has been made, any judicial economy that may be
As an initial matter, two recent gang-related cases suggest that before admission of gang evidence, the State must meet a threshold burden of proving that a nexus between the crime(s) for which the defendant is on trial and gang membership exist. See Burris v. State, 435 Md. 370, 390-91, 78 A.3d 371 (2013) (citing Gutierrez v. State, 423 Md. 476, 496, 32 A.3d 2 (2011) (to transform the gang membership “from an impermissiblе prior bad act to a concrete component of the crime charged,” the State must prove as a threshold matter that the crime is gang-related)). While it is unclear whether that requirement applies in severance/joinder cases, even if it is a requirement, it was met here. The men in the video can be seen displaying gang hand-signs and yelling out the name of the gang. Gang expert Detective Tippett explained that the sexual attack was gang-related as it “speaks directly to the gang‘s desire to bolster their name and display that fear and intimidation factor as it relates to an individual and the victim.”
We now turn to the first question in a joinder analysis. We look to whether the crimes were mutually admissible—whether they had special relevance. Clearly, evidence that the sexual assault was gang-related was admissible to prove motive for the crime and appellant‘s identity. Appellant does not argue to the contrary. Rather, appellant focuses his attack on the second question, arguing that admission of the gang-related evidence was too prejudicial. Appellant relies heavily on Burris, supra, and Gutierrez, supra, to support his argument, but his reliance is misplaced. On the contrary, after reviewing those cases and the transcript we are persuaded that the gang evidence was well-tailored to the facts of this case and not unduly prejudicial.
In Gutierrez, Gutierrez was convicted of first-degree murder. At his trial, the State introduced an expert who testified that: 1) MS-13 was the most violent gang he had seen in the past several years, 2) the gаng is allied with the Mexican Mafia, 3) if a non-gang member identified himself as a member of MS-13 he could be subject to punishment up to death, 4) when responding to criticism of their gang, MS-13 might react with violence up to death, and 5) to become a member of MS-13, that person must be “jumped in” or beaten by other gang members. Except for the first statement, the Court of Appeals found the statements admissible—they were probative to explain Gutierrez‘s and others actions leading up to and including the murder, and they were not unduly prejudicial. The Court held, however, that the first statement was more prejudicial than probative because it had no relevance to the crimes charged and was unnecessarily inflammatory. Nonetheless, the Court viewed the statement as harmless. Gutierrez, 423 Md. at 499.
As the State correctly notes, neither Burris nor Gutierrez concerned joinder but rather were concerned with the admis-
For the reasons set out above, we find no error by the trial court in denying appellant‘s motion to sever his participation in a criminal gang charge from his other charges.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Notes
The court sentenced appellant to consecutive sentences of ten years of imprisonment, all but five suspended, for each third-degree sexual offense; a concurrent ten-year sentence, all but five years suspended, for conspiracy; and a consecutive ten-year sentence, all but five suspended, for participation in a criminal gang.