Lead Opinion
We hold that if the prosecution presents fact evidence to show that the crime at issue is 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 to determine a fact in issue” under MRE 702. In establishing the requirements of these rules, the prosecution may use an expert to identify the significance of certain fact 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. In applying MRE 402 and MRE 702 to the facts of this case, we conclude that the trial court appropriately exercised its role as gatekeeper in determining that expert testimony about gangs and gang culture would assist the jury in understanding the evidence.
Nevertheless, there are limits to what an expert may opine, even when there is an appropriate foundation that the crime at issue is gang-related. Accordingly, we also hold that MRE 404(a) 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.
The expert witness in this case exceeded these limitations when he provided his opinion that defendant committed the crimes at issue because he acted in conformity with his gang membership. Specifically, the expert witness testified that because the defendant was a gang member, he was “posted up at” the scene of the crime “with a purpose,” namely, to give him and his fellow gang members “the chance to shoot” at someone and defend the gang’s turf. This improper character testimony affected both the element of premeditation in the first-degree-murder charge against defendant and the self-defense claim that defendant raised with respect to both first-degree murder and the lesser included offense of second-degree-murder. We therefore affirm the result of the Court of Appeals and remand this case to the Calhoun Circuit Court for a new trial.
I. FACTS AND PROCEDURAL HISTORY
On the evening of August 28, 2010, defendant, Levon Lee Bynum, was among a crowd of about 10 to 15 people gathered outside a party store in Battle Creek. Bynum and some of the other crowd members
Battle Creek police identified Bynum and the other shooters from the surveillance video of the party store’s parking lot. During police questioning, Bynum denied knowing Carter and the- other victims and initially claimed that he had fired multiple times in the air to scare them off because he believed they posed a threat to his safety.
Bynum was arrested and bound over for trial in the Calhoun Circuit Court on charges of first-degree murder for the death of Carter,
Sutherland was proffered as an expert witness on gangs, gang membership, and gang culture, including his particular expertise about Battle Creek gangs. Before Sutherland’s testimony, the prosecution filed a motion in limine to allow Sutherland to present a PowerPoint presentation about gangs and gang culture that connected Bynum to the Boardman Boys gang and showed how Battle Creek gangs, including
During trial, the court revisited the issue. Defense counsel reiterated that he was “still objecting to the use of essentially most of this testimony on the basis that it is more prejudicial than probative.” Specifically, he claimed that it was “not particularly relevant.. . whether [Bynum] is in [a] gang or not,” although defense counsel also admitted that Sutherland could “offer his . .. testimony as to associations and behavior and conduct of these groups . . . .” Even so, photographs and references “to gangs on a national stage that [Bynum] is not a member of [are] more prejudicial [than] probative.”
The court allowed Sutherland’s testimony and PowerPoint presentations to proceed on the basis that the evidence was relevant to prove Bynum’s motive for shooting Carter, Mitchell, and Davis.
In his testimony, Sutherland defined a gang as “a group of three or more individuals” who “collectively engage in criminal activity” and “identify themselves by a gang name,” usually a street name or a geographical area corresponding to their turf. They also “adopt certain signs and symbols that they like from nationally recognized gangs,” using them as “key identifiers” in their tattoos, graffiti, and clothes. According to Sutherland, the Boardman Boys satisfied the definition of a gang and often used a unique style of the letter “B” and a five-pointed star as their symbols, and Bynum had his street nickname, “Cannon,” tattooed on his person.
One of the key principles of gang culture, Sutherland explained, is that a gang enforces respect on its turf through power and fear. Gang members take “every opportunity they can to show how powerful they are.” Moreover, the Boardman Boys were engaged in an ongoing turf war with a rival gang, and the party store where these crimes occurred sits on the border between the two gangs’ turfs.
Sutherland also discussed the different levels of gang membership: hardcore
Finally, Sutherland turned to the events at the party store, explaining that if Bynum and other members of the gang had not reacted to what they had perceived was a sign of Carter’s disrespect, both the individual members who were slighted and the gang itself would have lost respect in the ongoing turf war. He also expressed his opinion of Bynum’s state of mind at the time of the shooting:
[W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn’t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us-give me [i.e., Bynum] a reason to--to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.”
Defense counsel did not specifically object to any of this testimony after the initial, general objection to Sutherland’s testimony.
The jury convicted Bynum as charged. Newly appointed appellate counsel moved for a new trial in the circuit court, citing the ineffective assistance of trial counsel for failing to object to Sutherland’s testimony as improper propensity evidence.*
The Court of Appeals reversed Bynum’s convictions in a split, unpublished opinion per curiam.
We granted the prosecution’s application for leave to appeal,
(1) whether the police officer’s expert testimony regarding gangs and gang membership — especially the testimony as to the defendant’s gang, the defendant’s role in his gang, and premeditation — was more prejudicial than probative under MEE 403; (2) the extent to which the profiling factors listed in People v Murray,234 Mich App 46 , 56-58 [593 NW2d 690 ] (1999), apply to the admissibility of this expert testimony; (3) whether any error by the trial court with respect to this testimony was preserved; and (4) whether, if there was any such error by the trial court, the Court of Appeals correctly held that the defendant was entitled to a new trial or whether any error was harmless.[18 ]
II. STANDARD OF REVIEW
The decision to admit evidence is within a trial court’s discretion, wrhich is reviewed for an abuse of that discretion.
If a defendant has failed to preserve a claim of evidentiary error, relief may be granted only upon a showing that a plain error affected the defendant’s substantial rights and that the defendant is actually innocent or the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
III. ANALYSIS
The Michigan Rules of Evidence provide the appropriate framework for reviewing the Court of Appeals’ conclusion that Bynum is entitled to a new trial on the basis of evidentiary error. When considering whether to admit expert testimony, MRE 702 requires the trial court to determine that the expert testimony “will assist the trier of fact to understand the evidence or to determine a fact in
MRE 404(a) prohibits the admission of character evidence except under limited circumstances:
Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted[,]... evidence of a trait of character for aggression of the accused offered by the prosecution[.]
Application of these and other rules of evidence to expert testimony about gangs, gang membership, and gang culture has not been developed in our caselaw, although gang activity and gang culture have increasingly been the focus of federal, state, and local law enforcement agencies.
As a threshold matter, applying MRE 402 and MRE 702 requires 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. The introduction of evidence regarding a defendant’s gang membership is
Sometimes, however, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters — such as clothing, symbolism, and tattoos — as features of gang membership and gang involvement. At other times, “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”
In the context of gang-related violence, we conclude that expert testimony may be admitted regarding general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. For example, the Kansas Supreme Court upheld testimony “that if someone got a member of the gang in trouble, the gang would retaliate” as part of “the State’s attempt to establish a motive” for such retaliation.
IV APPLICATION
A. PRESERVATION
Before examining the merits of the claimed evidentiary errors at issue in this appeal, one threshold question we must answer is whether Bynum preserved these claims of evidentiary error. As previously
The court allowed the presentation to proceed but restricted it “to a question and response format so that [defense counsel] can object to particular issues if he finds the basis to do so .. . .”
To summarize: We will apply our standard of review for preserved error to the threshold inquiry regarding whether any expert testimony about gangs is admissible in the first instance under MRE 402, and if it is admissible in the first instance, we will apply our standard of review for unpreserved error to the claims that the extent of the testimony admitted at trial violated MRE 404(a) and other pertinent rules of evidence. We now proceed to these inquiries.
B. FACT EVIDENCE REGARDING GANG-RELATED VIOLENCE
As stated, in applying MRE 402 and 702 to the facts of this case, fact evidence to show that the crime at issue is gang-related provides a sufficient basis for a trial court to conclude that expert testimony regarding gangs is relevant and will be helpful to the jury, although the significance of fact evidence and its relationship to gang violence can be gleaned from expert testimony.
Sutherland testified that the shootings occurred on disputed gang territory, and “an expert’s testimony that the
C. INADMISSIBLE EXPERT TESTIMONY UNDER MRE 404(a)
The prosecution argues that Sutherland’s testimony was proper evidence of motive because “[i]n a prosecution for murder proof of motive, while not essential, is always relevant.”
Nevertheless, Sutherland veered into objectionable territory when he opined that Bynum had acted in conformity with his gang membership with regard to the specific crimes in question.
[W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn’t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us — give me [i.e., Bynum] a reason to-to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.”
In contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland’s testimony interpreting the video evidence specifically connected
Therefore, we agree with the Court of Appeals that 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).
D. PREJUDICE
As stated, defense counsel did not specifically object to Sutherland’s testimony that Bynum acted in conformity with his gang membership in committing the charged crimes. As a result, Bynum must show that a plain error affected his substantial rights and that he is actually innocent or that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
Sutherland actually and clearly opined on Bynum’s character traits as a gang member to link him to the particular conduct at issue when he explained what he saw on the surveillance video: Bynum’s conformity with traits commonly associated with gang members on a particular occasion to show “ ‘how violent we [i.e., Bynum and the other Boardman Boys] can be . .. .’ ” Under the standard articulated above, Sutherland exceeded the limitations of MRE 404(a) when he went beyond discussing the general characteristics of gang membership and gang culture and instead testified that he believed that Bynum exemplified, on a particular occasion, the character trait of a gang member who needed to protect territory through violence. The error in allowing this testimony to be admitted was plain.
Furthermore, we agree with the Court of Appeals that, although “there was overwhelming evidence that Bynum participated in the shooting that led to Carter’s death and that his self-defense theory was not particularly persuasive,” the evidence of Bynum’s premeditation “was threadbare, at best.”
Carines also requires that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
As for the nature of Bynum’s relief, the prosecution argues that a new trial is not warranted because any evidentiary error would not have affected the jury’s rejection of Bynum’s self-defense claim, only its finding of premeditation — an element of first-degree murder, but not the lesser included offense of second-degree murder. As a result, the prosecution requests that, if we conclude that Bynum is entitled to relief, we enter a guilty verdict on the lesser included offense of second-degree murder, which does not require a finding of premeditation. We decline to do so because we cannot so easily separate the prejudice regarding premeditation from the prejudice regarding self-defense. While the evidence against Bynum’s self-defense claim was stronger than the evidence supporting premeditation, a conclusion that Bynum premeditated necessarily entails a rejection of his self-defense claim. Moreover, Sutherland’s testimony implicated Bynum’s propensity for violence relating to both the murder charge and his self-defense claim, and Sutherland’s opinion rejecting Bynum’s self-defense claim cannot be considered merely cumulative to the prosecution’s other evidence of Bynum’s guilt.
By proffering an opinion that Bynum exhibited the character trait of violence commonly associated with gang members to explain how Bynum allegedly premeditated in the murder, Sutherland gave the jury a separate reason for rejecting Bynum’s self-defense claim. In particular, Sutherland’s testimony provided jurors with a specific basis to reject Bynum’s statement to police that he was on his guard because “it’s not safe to walk nowhere” and was “scared for [his] life.” Unlike the partial dissent, we cannot look behind the jury’s decision to reject Bynum’s self-defense claim and determine, as a matter of law, that this claim was objectively unreasonable.
V CONCLUSION
As stated, we hold that MRE 402 and MRE 702 require a trial court to act as a gatekeeper for the admission of relevant expert testimony that will help the fact-finder “to understand the evidence or to determine a fact in issue . . . .” Such expert testimony may meet these requirements when there is fact evidence that the crime at issue is gang-related. However, when the connection between the crime and gang activity is beyond the ken of common knowledge, the requirements of MRE 402 and MRE 702 “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.”
Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a). Because Bynum was prejudiced by the expert opinion that, on a particular occasion, he acted in conformity with character traits commonly associated with gang members, we conclude that he is entitled to a new trial. We therefore affirm the result of the Court of Appeals’ judgment and remand this case to the Calhoun Circuit Court for further proceedings consistent with this opinion.
Notes
See National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends, p 15 (observing that “gang members are responsible for an average of 48 percent of violent crime in most jurisdictions”), available at <http://www.fbi.gov/stats-services/ publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends> (accessed July 3, 2014) [http://perma.cc/P8WZ-Y88E]; National Gang Intelligence Center, 2013 National Gang Report, p 52 (observing that gangs will “continue to vie for control of the territories they inhabit and will thereby continue to perpetrate violence and criminal activities in prisons and communities throughout the nation”), available at <http://www.fbi.gov/statsservices/publications/national-gang-report-2013/view> (accessed July 7, 2014) [http://perma.cc/XC2R-2M36].
Similarly, Mitchell and Davis denied knowing Bynum, the other shooters, and the other members of the crowd.
Because the police did not recover Bynum’s firearm, forensic evidence could not conclusively connect Bynum’s firearm to Carter’s death. However, a forensics expert testified that the bullets retrieved from Carter’s body came from the same firearm and were consistent with the type of firearm that Bynum carried.
MCL 750.316.
MCL 750.83.
MCL 750.227.
MCL 750.227b.
The motion in limine did not propose to introduce the presentation as substantive evidence in the case, only as a guide or roadmap to Sutherland’s testimony.
There is a factual dispute regarding which slides were shown to the jury as part of Sutherland’s expert testimony. For the reasons explained later, our ruling relies only on the matters on which Sutherland verbally opined during his testimony, not on what slides he showed the jury. As a result, we need not resolve this factual dispute between the parties. Instead, we caution the prosecution that the court unsuccessfully sought to insulate this appeal from this very factual dispute when it directed that the “images on the power point presentation be separately preserved as a special record for subsequent appellate review” and assigned that task to the assistant prosecutor.
Counsel also objected to Sutherland’s qualification as an expert witness, but that objection is not at issue in this appeal.
Indeed, appellate counsel called trial counsel’s failure to object “kind of shocking.”
People v Bynum, unpublished opinion per curiam of the Court of Appeals, issued April 18, 2013 (Docket No. 307028).
Id. at 7.
Id. at 9.
Id. at 3 (Boonstra, J., dissenting).
Id. at 5.
Bynum also filed an application for leave to cross-appeal, claiming violations of the right to the effective assistance of counsel and the Confrontation Clause, evidentiary error, prosecutorial misconduct, and instructional error. Because we affirm the result of the Court of Appeals’ judgment, we need not reach the merits of Bynum’s cross-appeal and deny leave to cross-appeal, although many of the issues presented on cross-appeal are related to Sutherland’s testimony.
People v Bynum,
People v McDaniel,
Id.
People v Cannes,
Additionally, MRE 703 requires that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference ... be in evidence.”
Gilbert v DaimlerChrysler Corp,
MRE 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Daubert v Merrell Dow Pharm, Inc,
In 1992, the FBI began the Safe Streets Violent Crime Initiative, which joins federal, state, and local law enforcement agencies to address gang-related crime. Federal Bureau of Investigation, Gangs, Violent Gang Task Forces <http://www.fbi.gov/about-us/investigate/vc_majorthefts/ gangs/violent-gangs-task-forces> (accessed July 7, 2014) [http:// perma.cc/M25P-MTBG]. The National Gang Intelligence Center provides centralized access to information about gangs and their growth, migration, and evolution. Federal Bureau of Investigation, Gangs, National Gang Intelligence Center <http://www.fbi.gov/about-us/investigate/ vc_majorthefts/gangs/ngic> (accessed July 7, 2014) [http:// perma.cc/S4A9-T2Q2].
MRE 702.
It is foreseeable that certain criminal activity is unrelated to membership in a gang. If, for instance, a member of a gang is charged with domestic violence, the crime might not be gang-related and, as a result, evidence of gang membership might not be relevant to the defendant’s guilt or innocence of the crime. Otherwise, “a juror might associate a defendant with such an affiliation as a person of bad character or someone prone to aggressive or violent behavior.” Utz v Commonwealth, 28 Va App 411, 420;
Gutierrez v State, 423 Md 476, 496; 32 A3d 2 (2011).
Id.
State v Tran, 252 Kan 494, 505;
Counsel’s only objection during Sutherland’s question-and-answer testimony was to a question about whether the victims were armed, which the court overruled after a foundation for Sutherland’s knowledge of the question had been established. Counsel also objected to whether Sutherland qualified as an expert witness, although the court overruled counsel’s objection. Neither of these objections is at issue in this appeal.
Gutierrez, 423 Md at 496.
People v Mihalko,
See, e.g., People v Bryant, 241 Ill App 3d 1007, 1022-1023; 182 Ill Dec 376;
Cf. United States v Mejia,
Cannes,
Bynum, unpub op at 9.
Id. at 10.
Carines,
Cf. People v Murray,
The partial dissent claims to profess that “this very issue is one submitted to the jury,” post at 640 (emphasis omitted), yet we, not the partial dissent, would again submit the self-defense issue to a jury to accept or reject.
Because it is not necessary to this award of relief, we do not reach the issue of whether it was also reversible error for the trial court to admit Sutherland’s testimony regarding Bynum’s status as a “hardcore member” of the Boardman Boys. We leave it to the trial court to assess the admissibility of such testimony if and when it is offered at retrial, as well as to resolve any other challenges regarding gang-related testimony not otherwise addressed in this opinion. In that regard, we also note that, of course, gang-related testimony remains subject to MRE 403. See, e.g., People v Musser,
[t]he potential for prejudice [when a police officer testifies as both an expert and a fact witness] can he addressed by means of appropriate cautionary instructions and by examination of the witness that is structured in such a way as to make clear when the witness is testifying to the facts and when he is offering his opinion as an expert. [United States v Mansoori,304 F3d 635 , 654 (CA 7, 2002).]
Gutierrez, 423 Md at 496.
Concurrence Opinion
(concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion that the errors committed in the trial court warrant a new trial. I concur with the majority’s conclusions that the testimony of Officer Tyler Sutherland, an expert on gangs and gang culture, was generally admissible, but that his specific statement opining on the issue of defendant’s premeditation was inadmissible. Additionally, I agree that the prejudice resulting from the impermissible statement regarding defendant’s state of mind warrants relief with respect to defendant’s first-degree premeditated murder conviction.
However, I dissent from the majority’s holding that the prejudice resulting from that improper testimony was inseparable from defendant’s unpersuasive claim of
As a result, I dissent from the majority’s conclusion that defendant is entitled to a new trial, and I would instead enter a conviction on the lesser-included offense of second-degree murder.
I. PLAIN ERROR STANDARD
The majority correctly concludes that the evidentiary error of the improperly admitted testimony is unpreserved. Because defendant’s counsel failed to raise the proper objections, it is defendant’s burden on appeal to show plain error affecting substantial rights.
II. DEFENDANT’S SELF-DEFENSE CLAIM
Because defendant timely raised the issue of self-defense, the prosecution bore the burden at trial of disproving that the killing was done in self-defense.
For these reasons, I conclude that the error in admitting Sutherland’s impermissible statement was not prejudicial to defendant’s self-defense claim such that a different outcome would have been even remotely likely if not for the evidentiary error.
III. CONCLUSION
Because any prejudice to defendant’s claim of self-defense was not outcome-determinative, I respectfully dissent from the majority’s holding that defendant is entitled to a new trial. Although one part of Sutherland’s testimony improperly touched on premeditation, the jury’s findings on all
I note that both the Court of Appeals majority and this Court’s majority have recognized the weakness of defendant’s claim of self-defense. See People v Bynum., unpublished opinion per curiam of the Court of Appeals, issued April 18, 2013 (Docket No. 307028), p 9 (stating that defendant’s “self-defense theory was not particularly persuasive”); ante at 632-633.
People v Carines,
Id.
Id. (quotation marks and citation omitted).
People v Dupree,
See People v Riddle,
Id. at 129 (“If it is possible to safely avoid an attack then it is not necessary, and therefore not permissible, to exercise deadly force against the attacker.”).
See People v Richardson,
By purporting to be unable to easily “separate the prejudice regarding premeditation from the prejudice regarding self-defense,” the majority fails to fully account for the distinction between defendant’s subjective belief in the need to employ deadly force and the objective reasonableness of that belief. The majority does not even directly assess this use of deadly force question.
See Riddle,
One could reasonably infer that the victim’s choice to throw a punch at defendant (who was surrounded by a substantial group of men), rather than, say, pull a gun or draw a knife, was evidence that he wasn’t armed. Indeed, defendant’s contention that his belief that lethal force was necessary is compromised by the lack of any record evidence that would have led defendant to reasonably believe the victims were armed.
See id.
By concluding that the speed “with which the verbal altercation escalated into a physical altercation belies the .. . claim that Bynum could have retreated easily,” the majority not only fails to account for the potential use of nondeadly force but ignores that defendant’s group vastly outnumbered the victim and his companions.
The prosecutor clearly made this point in his closing argument stating: “[I]f you can in a safe fashion back out of a situation, you are required to do so before you use deadly force,” and that “there is no question that Levon Bynum had the opportunity and had the means of exiting that situation without ever having drawn the gun that he was carrying, pointing the gun he was carrying, or firing the gun that he was carrying.”
See MCL 750.316; MCL 750.317; People v Carter,