SHELTON BURRIS a/k/a TYRONE BURRIS v. STATE OF MARYLAND
Court of Appeals, Battaglia, Filed Oct. 23, 2013,
http://www.mdcourts.gov/opinions/coa/2013/79a12.pdf
Absent a tie to the facts of the case strong enough to warrant admission, discussion of gang history, gang affiliation, and gang tattoos on defendant was unfairly prejudicial and required reversal

Basing much of the opinion on the 2011 Gutierrez decision, the Court of Appeals laid out the admissibility of gang-related testimony when related to motive:

First- The threshold requirement for the admissibility of gang expert testimony is fact evidence showing that the crime was gang-related
– There must be sufficient fact evidence of such nexus to transform membership in a gang “from an impermissible prior bad act to a concrete component of the crime” charged
– There is no requirement that any violation of a gang statute be charged for gang-related testimony to be admissible

Second- the probative value of the testimony must not be substantially outweighed by any unfair prejudice to the defendant
– evidence is considered unfairly prejudicial when it might influence the jury to disregard the evidence or lack of evidence regarding the particular crime with which the defendant is being charged
– The more probative the evidence, therefore, “the less likely it is that the evidence will be unfairly prejudicial.”
– The fact that a crime is gang-related does not justify the admission of extensive evidence regarding gangs “untethered to the facts of the particular case, which does nothing ‘to add to the jury’s understanding of why the defendant was the person who committed the particular crime charged.'”

The Court did not foreclose admissibility of gang testimony, but rather held the State liable for failing to connect the testimony to the facts.

According to the CoA opinion, the facts presented were that Burris killed the victim on behalf of a BGF leader. The expert testimony spoke to BGF operations, but did not explain that a BGF leader would be able to order a BGF hit-man to kill someone. And, despite the rather obvious connotation of “hit-man” and “boss,” the CoA declined to connect the dots on behalf of the State.

Additionally, the expert testified as to Burris’ tattoos, but did not connect any of them specifically to BGF. Nor did he directly connect the recanting witnesses to BGF operations or even gang operations generally.

Because of this, the gang testimony was relevant, but unfairly prejudicial. Remanded for new trial.