# Gutierrez v. State

> Court of Appeals of Maryland · November 29, 2011 · 423 Md. 476

URL: https://www.frixlaw.com/law-library/cases/9753161

## Case

- **Full name:** Mario Rodriguez GUTIERREZ v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** November 29, 2011
- **Citations:** 423 Md. 476; 32 A.3d 2; 2011 Md. LEXIS 682
- **Precedential status:** Published
- **Opinion:** Dissent by Bell
- **Judges:** Adkins, Bell, Greene
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753161

## How later opinions describe it (automated extraction)

- concluding that, notwithstanding the circuit court’s erroneous admission of expert testimony in contravention of Md. Rule 5-702 and 4-263(d)(8)(A), the error was harmless predicated on a comprehensive review of the record therein
- recognizing the inflammatory nature of evidence regarding gang membership
- declining to admit evidence describing the defendant’s gang as more violent than other gangs

## Opinion text

BELL, C.J.,
dissenting, in which GREENE, J., joins in Part B.
This case considers the propriety, and effect, of the introduction, at the trial of Mario Rodriguez Gutierrez, the appellant, of evidence, expert testimony, regarding the history, practices and violent tendencies of a gang of which the appellant was alleged to be a member. The trial court admitted the testimony and the jury convicted the appellant of first degree murder and use of a handgun in the commission of a felony. Although agreeing with the appellant that admission of some of the expert testimony was error, the majority holds that the error was harmless. Gutierrez v. State, 423 Md. 476, 499-500 , 32 A.3d 2, 15-16 (2011). It, therefore, affirms the appellant’s convictions. Id. at 500 , 32 A.3d at 16 . I do not agree. Under the facts and circumstances of this case, I am satisfied that the expert testimony, in its entirety, was inadmissible, either because it was not material or because it was more prejudicial than probative. Consequently, although I certainly agree that the trial court erred, I do not agree that the error was harmless.
The following facts, although contested by the appellant, were presented to the jury and, for purposes of this appeal, must be assumed to have been accepted by the jurors as fact. See Blake v. State, 418 Md. 445, 460 , 15 A.3d 787, 796 (2011) (Stating that the “clearly erroneous” standard of review is applicable to the circuit court’s finding of facts); Longus v. State, 416 Md. 433, 457 , 7 A.3d 64, 78 (2010) (Stating that the reviewing court makes its own independent appraisal of the law but defers to the trial courts finding of facts unless they are clearly erroneous) (citing Jones v. State, 343 Md. 448, 457-58 , 682 A.2d 248, 253 (1996)). Francisco Quintanilla, the victim, was one of a small group approached by a black Honda Civic, from which one of the passengers shouted “Mara Salvatrucha,” (“MS-13”), referring to a gang, and asked the persons in the group to identify their gang affiliations. According to *502 eyewitness Ellen Villatoro, Quintanilla and his companion denied that they were in a gang, and the person in the front passenger seat of the car began to shoot. According to two other eyewitnesses, the appellant’s co-defendants, who were also in the Honda, one person standing in the group — it is not clear whether it was the victim — insulted MS-13, and the front-seat passenger, in response, pulled out a gun and shot into the crowd. The person who did the shooting, alleged by the State to be, and identified at trial as, the appellant, shot Quintanilla four times, killing him.
At trial, Ellen Villatoro, who was standing next to the victim, identified the appellant as the shooter. The appellant’s co-defendants, Hector Tirado and Luis Alvarado-Pineda, also testified that the appellant was the shooter. Not content with this direct evidence, the State called Sergeant George Norris (“Sgt. Norris”), supervisor of the Prince George’s County Police Gang Unit, as an expert witness on gang-related activity and culture. Sgt. Norris testified to the history, practices and violent tendencies of the MS-13 gang. Specifically, he said:
“(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 ‘[violence ... [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 to be for 13 seconds.’ ”
On appeal, the appellant argues that the trial court erred by allowing Sgt. Norris to testify at all as to the gang-related history, activity and culture of MS-13. Asserting that such *503 testimony was irrelevant and unfairly prejudicial, he submits that it served no purpose other than to prejudice the appellant, by misleading the jury into believing that the appellant’s membership in the gang, MS-13, caused him to form the intent for premeditated murder. He posits specific points that Sgt. Norris emphasized in his testimony, the origins of the name, the initiation practices and the penalty for impersonating a gang member, to prove his point. The appellant maintains that testimony regarding the origins of the MS-13 gang’s name as deriving from a connection with the Mexican Mafia, the initiation practice of “jumping in,” and the punishments related to “false flagging” have absolutely no relevance, thus, value, in this case, as they do not relate to, elucidate or explain any issue in this case. There were no facts presented in this case, nor any allegations made, that the appellant acted under the direction, or for the purposes, of the Mexican Mafia, or that the murder was committed as part of an initiation or in response to “false flagging” by the victim.
The majority holds that expert testimony regarding gang activities and culture, such as that given by Sgt. Norris, is admissible as long as “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.” Op. at 481-82, 32 A.3d at 5 . Thus, as a threshold matter, there must be “some evidence connecting the crime and the gang.” Id. at 496 n. 2, 32 A.3d at 14, n. 2 . The probative value of the testimony, moreover, must not be outweighed substantially by any unfair prejudice to the defendant. Id. at 481-82 , 32 A.3d at 5 .
The majority concedes that the evidence of gang affiliation is evidence of “prior bad acts,” which is admitted only upon the satisfaction of a three-part test gleaned from Md. Rules 5-404(b) and 5-403. Op. at 489-90, 32 A.3d at 9-10 . Citing State v. Faulkner, 314 Md. 630, 634-35 , 552 A.2d 896, 897 (1989), the majority states, op. at 489, 32 A.3d at 10 , that the evidence must be “substantially relevant to some contested issue in the case[,]” and tend to prove “motive, opportunity, intent, preparation, common scheme or plan, knowledge, iden *504 tity, or absence of mistake or accident.” Md. Rule 5-404(b). See also State v. Westpoint, 404 Md. 455, 488 , 947 A.2d 519, 539 (2008) (citing Wynn v. State, 351 Md. 307, 316 , 718 A.2d 588, 592 (1998); State v.Taylor, 347 Md. 363, 368 , 701 A.2d 389, 392 (1997)). Pointing to the testimony of Ellen Villatoro and the appellant’s co-defendants, turned State witnesses, who testified that, upon driving up to where Quintanilla was standing, the appellant shouted, “Mara Salvatrucha” and asked the victim to identify his gang affiliation, the majority states that the “some evidence” standard was met and, thus, those facts provided sufficient basis for the admission of “gang” expert testimony. Op. at 497-98, 32 A.3d at 14-15 . The majority concedes that it was error to allow the expert to testify that “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 ...,’” but finds that error to be harmless. Id. at 499-500 , 32 A.3d at 15-16 . The rest of Sgt. Norris’ testimony the majority found to be relevant to explain the various motives that Gutierrez might have had for shooting the victim, and that, with regard to the testimony admitted in error, “strong MS-13 undercurrent heightened the probative value of Norris’ testimony, such that it was not outweighed by any unfair prejudice.” Id. at 498 , 32 A.3d at 15 .
The appellant does not, nor could he reasonably, dispute that one of the propositions about which Sgt. Norris testified, ie. [w]hen responding to criticism of their gang, MS-13 members react with “[vjiolence ... [u]p to death,” may be relevant, tending to prove, see Maryland Rule 5-401, 1 the appellant’s motive for committing the murder. He acknowledges, as he must, the testimony that, at the time of the murder, the victim had criticized, or was engaged in criticizing MS-13. The appellant denies that that testimony is admissible, *505 however. While it may be relevant to prove motive, he argues that motive was not a material issue in the case, “of consequence to the determination of the action,” Rule 5-401, 2 and, indeed, was not even contested. The appellant also rejects, and I believe rightly so, the majority’s conclusion that any of Sgt. Norris’ other propositions has that special relevance that Rule 5-404(b) requires for admission, arguing that they have “no logical tendency” to show motive and only serve to show his propensity toward violent acts by associating the defendant with the violent practices of the MS-13 gang. See United States v. Ring, 513 F.2d 1001, 1006 (6th Cir.1975) (citing United States v. Birns, 395 F.2d 943 (6th Cir.1968)) (During the defendant’s trial for mailing threatening letters, where previous letters received by the victim did not indicate that the defendant had any relationship with the victim’s wife, as asserted by the government, the court held that the prior threats had “no logical tendency” to show a motive.). I agree with the appellant.
A.
Md. Rule 5-404(b), provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, 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.” This Rule’s purpose is to limit the admissibility of evidence offered to prove criminal propensity. Membership in MS-13 and adherence to its practices and culture fit the definition of “other wrongs” or “bad acts,” since “they are activities] or conduct, not necessarily criminal, that tend[ ] to impugn or reflect adversely upon one’s character, taking into *506 consideration the facts of the underlying lawsuit.” Klauenberg v. State, 355 Md. 528, 549 , 735 A.2d 1061, 1072 (1999).
It has been well established by this Court that “other crimes, wrongs or acts evidence may be admissible when it has ‘special relevance,’ ie., when the evidence ‘is substantially relevant to some contested issue and is not offered simply to prove criminal character.’” Westpoint, 404 Md. at 488 , 947 A.2d at 539 (citing Wynn, 351 Md. at 316 , 718 A.2d at 592 ; Snyder v. State, 361 Md. 580, 603 , 762 A.2d 125, 138 (2000); Taylor, 347 Md. at 368 , 701 A.2d at 392 ). This is consistent with the rule in other states. People v. Golochowicz, 413 Mich. 298 , 319 N.W.2d 518, 524 (1982). In that case, the Michigan Supreme Court outlined this well-established concept, holding that in order for “other crimes” evidence to be admitted, the issue it is offered to prove must be
“genuinely in issue — not ‘in issue’ in the sense that criminal intent, identity, motive, lack of accident or some criminal plan are nearly always in issue to some greater or lesser degree in every case, but in issue or ‘material’ in the sense that they are genuinely controverted matters. A genuine controversy exists concerning such matters when the defendant, either by counsel’s opening statement, a motion in limine, the nature of cross-examination by the defense, or evidence offered by the defense, has made one or more of them an issue actually disputed in the case.”
Id. The foregoing is “subject, of course, to the balancing requirement of Maryland Rule 5-403.” Snyder, 361 Md. at 603 , 762 A.2d at 138 (and cases cited therein). Maryland Rule 5-403 makes clear that, “[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.” It seems too obvious to state, but it is worth remembering that, when evidence of other bad acts or crimes is offered without the predicate of a contested issue to be resolved, its only purpose is to show those prior bad acts or crimes, from which the logical inference of propensity natural *507 ly and inexorably will flow. In the absence of a contested issue, therefore, the only purpose of such evidence is “to prove the character of a person in order to show action in conformity therewith.” Md. Rule 5-404(b).
We must first look to whether the evidence offered to prove the appellant’s alleged motive was material. “The fact that evidence may fit one of the certified exceptions to the ‘other crimes’ rule does not mean that it is automatically admissible.” Jones v. State, 38 Md.App. 432, 437 , 381 A.2d 317, 321 (1978). Motive is not an element of the crime of murder. It follows, then, that evidence of motive “serves no legitimate purpose,” and is therefore not material, when motive is not an essential element of any offense charged and when the prosecution is aware that it will not be contested. Martin v. State, 40 Md.App. 248, 254-55 , 389 A.2d 1374, 1377-78 (1978). See also Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594, 624 , 17 A.3d 676, 693 (2011) (quoting Harris v. State, 324 Md. 490, 500 , 597 A.2d 956, 961 (1991)); Westpoint, 404 Md. at 488 , 947 A.2d at 539 (citing Wynn, 351 Md. at 316 , 718 A.2d at 592 ; Taylor, 347 Md. at 368 , 701 A.2d at 392 ); Ayers v. State, 335 Md. 602, 631 , 645 A.2d 22, 36 (1994).
The cases on which the majority relies, Faulkner, 314 Md. 630 , 552 A.2d 896 , Ayala v. State, 174 Md.App. 647 , 923 A.2d 952 (2007), United States v. Mansoori, 304 F.3d 635 (7th Cir.2002), United States v. Robinson, 978 F.2d 1554 (10th Cir.1992), People v. Gonzalez, 38 Cal.4th 932 , 44 Cal.Rptr.3d 237 , 135 P.3d 649 (2006), People v. McDaniels, 107 Cal.App.3d 898 , 166 Cal.Rptr. 12 (1980), People v. Bryant, 241 Ill.App.3d 1007 , 182 Ill.Dec. 376 , 609 N.E.2d 910 (1993), Utz v. Commonwealth, 28 Va.App. 411 , 505 S.E.2d 380, 383 (1998), and State v. Nieto, 129 N.M. 688 , 12 P.3d 442 (2000), among others, are consistent with, and indeed, follow, this rule. Thus, those cases do not refute the appellant’s argument that the gang-related evidence is inadmissible nor support its holding that it is. In Ayers , the defendant was charged with, “inter alia, assault, assault with intent to maim, kidnapping, conspiracy to commit a racially motivated crime, and committing a racially motivated crime in violation of § 470A(b)(3)(i).” 335 Md. at *508 608 , 645 A.2d at 25 . Then Maryland Code (1957, 1992 Repl. Vol., 1993 Cum.Supp.) Art. 27, § 470A 3 required the prosecution to prove, as a part of its case, that the defendant committed the criminal acts because of the victim’s race. 4 Id. at 633, 645 A.2d at 37 . The proof of defendant’s motive thus was essential for the prosecution to obtain a conviction and, for that reason, this Court found the evidence of motive to be material. Id.
To be sure, the Court of Special Appeals, in Ayala v. State, like this case, a first-degree murder case, found evidence of the defendant’s gang-related motive to commit murder to be material. 174 Md.App. at 662 , 923 A.2d at 960 . The facts of Ayala , however, differ greatly from those in the current case. There, Mario Ayala defended by contending that he committed the murder in self-defense and/or in the defense of others and that he “was intimidated” by other members of the gang and feared retaliation if he did not assist. Id. at 652 , 923 A.2d at 955 . In rejecting the defendant’s argument that expert gang related testimony was inadmissible, the intermediate appellate court opined:
*509 “As in Davis, the gang testimony presented by the State corroborated the defendant’s — in this case Ayala’s — pretrial statement that the perpetrators and the victim were members of rival gangs. Further, the evidence served to explain the ‘otherwise inexplicable,’ by providing a motive for a brutal and seemingly senseless killing---- Detective Porter’s detailed testimony regarding the history and structure of the MS-13 gang was highly probative in that it explained the gang’s code of conduct and revealed the gang’s long and bitter rivalry with the 18 Street gang. The detective’s testimony made clear that the relationship between the two gangs was regularly punctuated by acts of extreme violence, and that such acts might be based on amorphous, perceived slights that occurred between other gang members in the distant past rather than on any concrete, identifiable disputes between the immediate parties to the acts. In addition to showing that Ayala personally might have desired revenge for an earlier beating, the evidence indicated that Ayala, like the defendant in Nieto, may have participated in the murder in order to secure his place in the gang.... ”
Id. at 664 , 923 A.2d at 962 . Although the court does not expressly address this step in its analysis, it is clear that not only is the court’s analysis consistent with the requirements of the applicable evidence rules and the case law implementing them, it follows inexorably from them. By offering self defense or intimidation as the explanation and excuse for his actions, which he did not dispute, the defendant placed motive at issue. The State was entitled to, as it did, rebut these defenses, to challenge the proffered motives by introducing evidence to prove that the defendant possessed some other motive, such as his MS-13 affiliation and gang loyalty. Id. at 653 , 923 A.2d at 955 .
The other cases on which the majority relies also are cases in which the State was required to show motive or another contested issue in order to rebut the defense presented and meet its burden of proof and, thus, are clearly distinguishable from the instant case. In Faulkner, 314 Md. at 632 , 552 A.2d *510 at 897 , the defendant, Alvin Faulkner, was convicted of robbery after the State offered testimonial evidence of past robberies he had committed using a similar modus operandi The trial judge admitted the “other crimes” evidence because the contested issue at trial was Faulkner’s identity as the perpetrator. Id. at 635 , 552 A.2d at 898 . The Court noted that, although the characteristics of the robbery at issue were unremarkable when considered separately, ie. the robber wearing a mask and gloves, carrying a handgun, and carrying a bag for the fruits of his crime, the evidence considered as a whole, including the State’s prior bad acts/“other crimes” evidence, established a method so unusual and distinctive that it established a modus operandi. Id. at 638-39, 552 A.2d at 900 . Once it was shown that the “other crimes” evidence fell neatly within an exception, this Court held that, because most of the State’s evidence regarding the robbery was circumstantial, aside from a witness whose testimony would have to be corroborated because he acted as Faulkner’s accomplice in the robbery, the “other crimes” evidence was not merely cumulative in establishing Faulkner’s guilt, but necessary and corroborative. Id. at 643 , 552 A.2d at 902 . See Robinson, 978 F.2d at 1561-62 (10th Cir.1992) (holding that expert testimony of gang affiliation was directly probative of the defendants’ knowledge and intent to distribute narcotics, elements of the offenses charged); Gonzalez, 44 Cal.Rptr.3d 237 , 135 P.3d at 653, 659 (Cal.2006) (allowing expert testimony on gang culture and activities, where the only objections to the testimony were different from those made here, relating to the breadth and effect of certain of the assertions, id., 44 Cal.Rptr.3d 237 , 135 P.3d at 657 , whether the testimony invaded the province of the jury, id., 44 Cal.Rptr.3d 237 , 135 P.3d at 658 , as well as the sufficiency of the foundation laid for the opinion. Id., 44 Cal.Rptr.3d 237 , 135 P.3d at 659 .) 5 ; McDaniels, 166 Cal.Rptr. *511 at 14-15 (Ct.App.1980) (Expert testimony about gang fights admissible when the witnesses were in disagreement about whether only one gang member intended to fight, or whether wholesale retaliation was contemplated. In addition, the defendant offered testimony that he was no longer a member of the gang, although he was present at the scene with gang members.); Bryant, 182 Ill.Dec. 376 , 609 N.E.2d at 918 (Ill.App.Ct.1993) (Where the State and the defendant told contrary stories of the motivation for the shooting); Utz, 505 S.E.2d at 383 (Va.Ct.App.1998) (Where the defendant asserted self-defense, the Commonwealth could seek to prove the murder was gang-related and, therefore, rebut the defendant’s motive); Nieto, 12 P.3d at 446 (N.M.2000) (holding that, where the defense is duress, cooperation in commission of a murder out of fear for his own life, the State may offer contrary evidence, that the defendant was accommodating the 18th Street Gang, which had ordered a hit on the victim).
Nor is Mansoori, 304 F.3d 635 (7th Cir.2002) authority for the admission of the evidence regarding gang culture in this case. In Mansoori , the appellants were convicted in federal district court of engaging in a conspiracy to possess with intent to distribute narcotics. 304 F.3d at 640 . The State’s theory of the case was that “the defendants were involved in a unitary conspiracy that used the Traveling] V[ice] L[ords], organization!, the gang with which the defendant and his co-defendants were associated] to distribute cocaine and heroin!.]” Id. at 653 . To prove that theory, over the objections of the defense, the court permitted a police gang specialist to give opinion testimony regarding the history, leadership, and operations of the TVL. The defense had a different theory, it posited that the narcotics transactions were part of a series of unrelated conspiracies. Id. at 652-54 . These opposing theories were evident from the opening statements. Id. at 653 . The United States Court of Appeals for the Seventh Circuit held that the trial court did not abuse its discretion in permit *512 ting the expert testimony, reasoning that the average juror was unlikely to be familiar with the operations of narcotics traffickers or of street gangs; thus, the testimony supplied the jury with useful background concerning the history and structure of TVLs, as well as their involvement in narcotics activities. Id. at 654 . The court also found no reason to believe that the testimony invited the jury to reach incorrect conclusions, or to otherwise mislead, confuse, or prejudice the defendants’ case. See id.
In all of the cases, on which the majority relies, in which the admission of gang-related expert evidence was allowed, the expert testimony on gang affiliation was material to the case, addressed a contested issue, and was not offered simply to prove criminal propensity. That is not the situation in the case sub judice. Here, neither the requirements prescribed by Md. Rules 5-404(b) and 5-403 nor by Maryland case law supports the admission of such evidence.
Indeed, in this case, there simply was no legitimate basis or justification for the State’s proffer of evidence to prove motive. 6 The appellant was charged with first degree murder *513 and the use of a handgun in the commission of a felony. 7 Unlike the crimes charged in Ayers (hate crime), Mansoori (conspiracy), or Robinson (distribution of narcotics), neither of these crimes requires the accused to possess a particular motive, or any motive, knowledge, or intent — beyond deliberateness — in order to be convicted. 8 Furthermore, the appellant did not defend on the basis that he was not a member of MS-13, that he had no motive to kill the victim or, as was the case in Ayala, McDaniels, Bryant, Utz, or Nieto , offer any evidence of self-defense and/or defense of others or of any other matter that would have made motive a contested and material issue in the case. His defense was simple: although there was eyewitness testimony to the contrary, he asserted that he did not fire the gun. To sustain that position, the *514 appellant attacked the credibility of the eyewitnesses; 9 he did not offer a moderating or exculpatory motive for having committed the act alleged. Expert testimony regarding gang activities, culture, and the like does not respond to this impeaching evidence offered by the appellant. Therefore, the gang-related testimony offered to prove Gutierrez’s motive had absolutely no relevance to, and served no legitimate purpose in proving, the prosecution’s case, for either of the crimes charged.
In Faulkner , the defendant’s identity was clearly a contested issue, and the “other crimes” evidence was especially important, even necessary. There was no eyewitness to identify the robber; therefore, identity had to be proven circumstantially and, hence, was a material contested issue. Thus, this circumstantial evidence, the testimony concerning the prior robberies, had a particular and significant non-prejudicial relevance: it would show that the robber from previous stick-ups displayed almost identical physical and behavioral characteristics as Faulkner. 314 Md. at 636 , 552 A.2d at 899 . *515 The cases of Ayala, McDaniels, Bryant, Utz, and Nieto , which admitted evidence of prior “bad acts” in the form of gang involvement, also involved materially contested issues; in those cases, the State and defense asserted conflicting theories of motive, or the defendant argued that he lacked any intent whatsoever. Lastly, in Gonzalez , although explainable on the basis of witness testimony repudiation, the objection made here simply was not made to, and therefore not addressed by, the court.
The State offered Sgt. Norris’ testimony in its case-in-chief, this is before the defendant had the opportunity to raise the issue of motive. At that point in the trial, he had simply pled not guilty, and had given no indication that he would be contesting the issue of motive. “A plea of not guilty cannot, by itself, be construed as raising such a keen dispute on [the issue of motive] as to justify the admission of this type of evidence.” Jones, 38 Md.App. at 440 , 381 A.2d at 322 (1978) (citing United States v. Fierson, 419 F.2d 1020, 1022-23 (7th Cir.1969)). Consequently, where its case is supported by sufficient evidence and motive is not at issue, the only effect, and thus result, of permitting the State to offer evidence of motive is to buttress the State’s case with evidence whose only effect and purpose is to prejudice the defendant, rather than assist the trier of fact to resolve that disputed issue.
Courts generally approve of the government anticipating, in its case-in-chief, a defendant’s theory of defense, so long as the anticipated theory is in rebuttal to, or negates actual elements of the charged crime. See United States v. Aranda, 963 F.2d 211, 215 (8th Cir.1992) (quoting United States v. Mothershed, 859 F.2d 585, 589 (8th Cir.1988); citing United States v. Lewis, 759 F.2d 1316 , 1349 n. 14 (8th Cir.1985), cert. denied, 474 U.S. 994 , 106 S.Ct. 406 , 88 L.Ed.2d 357 (1985)) (Holding that a “plea of not guilty places in issue every element of the crimes charged[,]” and, moreover, “it [is] not necessary for the government to await defendant’s denial of [the elements] before introducing this evidence; the government may anticipate the defense and introduce it in its case-in-chief.”). The State may also anticipate a defense that is not generated by *516 the elements and present evidence to meet it in its case-in-chief, but only when the “defense is clearly raised in the defense’s opening statement and [the defense] obviously materializes through a defendant’s presentation of its own witnesses or through cross-examination of the government’s witnesses,” United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir.1992) (entrapment); see United States v. McGuire, 808 F.2d 694, 696 (8th Cir.1987) (finding that it was error for the district court to allow the government to introduce rebuttal evidence in its case-in-chief in anticipation of an entrapment defense that was proposed in defense counsel’s opening statement but that never actually materialized), or it is peremptorily to introduce evidence that the defense could use to impeach one of its witnesses, United States v. Curtin, 489 F.3d 935, 940-41 (9th Cir.2007) (and cases therein cited). When the government introduces evidence that does not respond to a defense that is not dictated by, or based on, the denial of the necessary elements of the crime, however, the evidence has been ruled inadmissible. See Banks v. State, 92 Md.App. 422, 434, n. 2 , 608 A.2d 1249, 1255, n. 2 (1992) (citing Commonwealth v. DelValle, 351 Mass. 489 , 221 N.E.2d 922, 924 (1966)) (testimony of threats made by defendant against victim inadmissible to rebut suicidal state of mind where introduced in State’s case-in-chief and there was no evidence from the defense of victim’s suicidal tendencies). See also United States v. Hicks, 635 F.3d 1063, 1071-72 (7th Cir.2011) (holding inadmissible the defendant’s prior conviction offered to rebut an anticipated but then unraised entrapment defense).
In Jackson v. State, 87 Md.App. 475 , 590 A.2d 177 (1991), the front of the victim’s Fort Meade home was firebombed and the victim, after noticing the fire, went to the kitchen and called the police. While on the phone, the victim was fatally shot in the chest from a bullet fired through a kitchen window. Id. at 478 , 590 A.2d at 179 .
“As part of its case in chief, the prosecution offered evidence intended to show that appellant, who was a military police sergeant stationed at Fort Meade, had a motive for committing the arson and the murder. Specifically, the *517 prosecution introduced the fact that appellant knew he was a suspect in the rape of [the victim’s mother]. Additionally, the prosecution showed that appellant knew that there was a military Article 32 hearing scheduled for November 27, 1989 to determine whether there was sufficient evidence against him to proceed with a general court martial.”
Id. Although the opinion is unclear as to whether the defendant objected to the peremptory introduction of motive evidence — the issue raised by the defendant was his right to offer evidence of a lack of motive in response, id. at 478 , 590 A.2d at 179 , — the case can be read as affirming the proposition that the proof of prior bad acts to show motive was properly admitted as circumstantial evidence of guilt, during the state’s case-in-chief, as it was material to show that the appellant had a motive to murder the rape victim’s daughter, a possible witness in his upcoming rape trial. Id. at 483-87 , 590 A.2d at 181-84 . Nevertheless, the facts of the case sub judice are not at all similar to those in Jackson . In Jackson , no one witnessed either the fire bombing or the murder. Consequently, there was no direct evidence of the defendant’s criminal agency, as there is in this case. Because of this lack of direct evidence, the State could only prove its case circumstantially, including introducing evidence tending to show the defendant’s motive to commit the crimes. By contrast, here, the State had multiple witnesses to testify that the appellant shot and killed the victim. Not only was motive not an element of the offense, but the evidence of gang-related motive was not, with Quintanilla’s murder, “so linked together in point of time or circumstances that one [could not] be fully shown without proving the other,” so as to make motive not simply a material, but a necessary, part of the State’s case. Westpoint, 404 Md. at 489 , 947 A.2d at 539 (internal citations omitted). Moreover, motive was never placed into controversy by the defense; “lack of motive” or a defense that would generate the issue was never introduced in the defense’s opening statement and the defense never raised any such issues during the State’s case or at any time during the trial. Thus, no issue *518 permitting the State to offer evidence of motive ever materialized during trial, never mind during the State’s case.
I agree with the court in United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir.1974), when it explained that we must continue to recognize that the categories of exceptions — motive, intent, identity, etc. — to the prohibition against other crimes evidence “are not magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in their names.” By this holding, we fail to heed that advice and, in fact, do the opposite, we expand these exceptions to the point where, if it has not already occurred, they will swallow the rule. More significantly, and sadder still, the State is permitted to force onto a defendant a defense he or she would not otherwise have asserted or, even worse, may have strategically decided not to raise and, in that event, the obligation either to defend or explain it.
Furthermore, this Court has held that prior bad acts/other crimes evidence is only admissible if its probative value outweighs its prejudicial impact. Johnson v. State, 332 Md. 456, 473 , 632 A.2d 152, 160 (1993). In arriving at the proper balance, the special relevance of that evidence must be considered, to be sure, but also must its necessity. As I have explained, I believe the evidence at issue fails the special relevance prong of the test, since, where there is no contested issue, there can be but one purpose for introducing the evidence, “to prove the character of a person in order to show action in conformity therewith.” Maryland Rule 5-404(b). I believe it also fails the necessity prong. Id. In Cross v. State, 282 Md. 468, 474 , 386 A.2d 757, 761 (1978), this Court said:
“[TJhough the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of por *519 tions or all of the evidence of the defendant’s specific criminal actions may be permissible.” (Citations omitted, emphasis added).
It is widely recognized that “we must balance the actual need for that evidence in view of the contested issues and other evidence available to the prosecution.” Goodwin, 492 F.2d 1141, 1150 (5th Cir.1974). Here, even if the evidence of motive were material and contested, which it was not, the gang-related testimony of Sgt. Norris to prove the defendant’s motive simply was not necessary.
The State produced eyewitness testimony, as we have seen, that the appellant was the murderer, that he engaged the crowd with an announcement and a question and then shot the victim. In addition, it called three witnesses who testified, over the appellant’s objection, to the defendant’s membership in the gang and that the murder was related in some way to the MS-13 gang. These witnesses testified to similar, though not the exact, information given by Sgt. Norris. Thus, while perhaps nice to have, the expert testimony was not necessary. Moreover, it must be remembered, when addressing this prong of the test, that the only contested issue was who killed the victim, the appellant or someone else. On this issue, the value of Sgt. Norris’ testimony, relating to the gang’s culture, procedures and affiliations, was not only unnecessary, but of limited probative value, it added very little information helpful to the jury in its deliberation. On the other side of the balance, the evidence was highly prejudicial to the defendant, aligning him with a violent organization with ties to the “Mexican Mafia,” whose penalties result in punishments “up to death.” When conveyed to the jurors by a seasoned police officer, determined by the court to be an expert on the subject, this information could be expected to, and likely did, result in the assumption by the jurors that the appellant, because of this association, would be more likely to kill, or use a handgun in the commission of a felony. It is clear that the probative value of Sgt. Norris’ testimony simply does not outweigh the prejudicial impact it would have on the jury.
*520 B.
While I disagree with the conclusion of the majority in regards to the relevancy of any of the expert witness’ gang-related testimony, I agree that the majority is correct when it states, that “the trial court erred when allowing [the expert witness] to testify that 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.’ ” Op. at 499, 32 A.3d at 16 . Certainly, the fact that MS-13 or any gang is more violent than others has no bearing on whether this particular defendant committed this particular crime. I do not agree that the error was harmless.
The test that controls the resolution of this issue was pronounced in Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976):
“[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.” (footnote omitted)
Id. at 659 , 350 A.2d at 678 . The test focuses on the effect of evidence, admitted or excluded in error, on the verdict delivered by the trier of fact. When a reviewing court determines that an error was committed, reversal of the conviction is required unless the error is harmless. The error is harmless only if it “in no way influenced the verdict.” Id. The reviewing court must exclude this possibility “beyond a reasonable doubt.” Id. Furthermore, this Court has stated, that the harmful error test should be implemented strictly, that it “should be carefully circumscribed” for the reasons given in Younie v. State, 272 Md. 233 , 322 A.2d 211 (1974), where it said that:
*521 “Continued expansion of the harmless error rule will merely encourage prosecutors to attempt to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.”
Id. at 248 , 322 A.2d at 219 (quoting People v. Jablonski, 38 Mich.App. 33, 38-39 , 195 N.W.2d 777, 780 (1972) (internal quotation marks omitted)).
The majority in its review of this issue quotes the harmless error test enunciated in Dorsey ; however its application of the test is flawed, or, rather, it applies a different test than it states. The majority states, “[booking to the other evidence on the record, we are confident that the statement would not have persuaded the jury to render a guilty verdict when it would not have otherwise done so.” Op. at 500, 32 A.3d at 16 . This is not the harmless error test set forth in Dorsey . The Dorsey test requires “in order to find the error harmless, ‘the good evidence standing alone must be sufficient to convict, and we must be convinced beyond a reasonable doubt that the jury was in no way influenced by the bad [evidence].’ ” Dorsey, 276 Md. at 656 , 350 A.2d at 676 (quoting Younie, 272 Md. at 247-48 , 322 A.2d at 219 .); see also State v. Blackwell, 408 Md. 677, 698 , 971 A.2d 296, 308 (2009). The majority only addresses the sufficiency prong of the test, stating that at trial “[t]hree different eyewitnesses named him as the shooter,” and “other properly admissible evidence established that Gutierrez was affiliated with MS-13.” Op. at 500, 32 A.3d at 16 . This may be absolutely correct; however, it alone does not satisfy the test. That all of the evidence the jury used in determining its verdict, excluding the detective’s statement, would be sufficient for the jury to find the appellant guilty is but one consideration.
In conformity with the Dorsey test, the appellate court must also consider whether, beyond a reasonable doubt, the wrongly admitted evidence had any influence on the jury’s verdict. In *522 the case sub judice, it is not unreasonable to believe that the testimony of an expert witness, who has been a police officer for 19 years, a supervisor in the police gang unit, and who states that a gang is one law enforcement had seen “the most violence with” in recent years, would influence the jury and its verdict. This is particularly so, when the prosecutor has taken great pains to attempt to connect the defendant to this particular gang. It is entirely logical to believe, and thus conclude, that a juror might have concluded that the appellant was a member of MS-13 and, from that, use the officer’s statement to find that the appellant committed the violent acts charged.
The majority does not address why it believes the officer’s testimony did not influence the jury’s decision, other than to assert that the statement “is not so shocking in light of the mountain of other testimony detailing the violent practices of the gang.” Op. at 500, 32 A.3d at 16 . Again, that is not the question or the test. Testimony need not be “shocking” in order for it to influence the jury. Furthermore, I find that nowhere in the “mountain of other testimony” the majority points to, is it mentioned that the MS-13 gang and its acts are more violent than any other acts or gangs, in the region or in recent years. This statement is unlike any articulated by the officer, or any other witness, and does not “so easily blend in” as the majority suggests. Id. I am not persuaded beyond a reasonable doubt that this statement made by the expert witness had no influence on the jury’s verdict.
I dissent.
Judge GREENE authorizes me to state that he joins in Part B of this opinion.
. Maryland Rule 5-401, defining "relevant evidence,” provides:
"Relevant evidence’ means 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.”
. We said in Snyder v. State, 361 Md. 580, 591 , 762 A.2d 125, 131 (2000), citing the Rule, that "[r]elevance is a relational concept. Accordingly, an item of evidence can be relevant only when, through proper analysis and reasoning, it is related logically to a matter at issue in the case, i.e., one that is properly provable in the case.”
. By 2002 Md. Laws, Chap. 26 Article 27 of the Maryland Code was repealed and replaced by the Criminal Law Article. Former Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Art. 27, § 470A (3)(i) is now Maryland Code (2009) § 10-304 of the Criminal Law Article. As relevant, it now provides:
"Because of another’s race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another is homeless, a person may not:
"(1) (i) commit a crime or attempt to commit a crime against that person;
"(ii) damage the real or personal property of that person;
"(iii) deface, damage, or destroy, or attempt to deface, damage, or destroy the real or personal property of that person; or
"(iv) bum or attempt to burn an object on the real or personal property of that person....”
. Subsection (b) of § 470A made it a criminal offense to:
"(3) Harass or commit a crime upon a person or damage the real or personal property of:
"(i) A person because of that person’s race, color, religious beliefs, or national origin.”
. In People v. Gonzalez, 38 Cal.4th 932 , 44 Cal.Rptr.3d 237 , 135 P.3d 649, 653, 659 (2006), all but one eyewitness repudiated their prior testimony, and a witness to the defendant's admission to being the shooter recanted at trial. Admission of the expert testimony was consistent with the Maryland standard: identity was very much at *511 issue; expert testimony was admissible, inter alia, to help the jury decide whether to credit the repudiated testimony.
. Despite having multiple witnesses who could and would provide direct evidence that the appellant committed the murder, the State's opening statement focused largely on the appellant’s motive. Pointing to the evidence that the murder was gang-related, which was circumstantial, and promising to introduce expert testimony to explain the appellant’s motive, the prosecutor argued:
"On the night of July 14th, 2007, the Defendant, Mario Gutierrez, was looking to kill somebody. It didn't really matter to him what his reason was in particular, because he had the reason. It didn’t really matter who to him, because he had the reason. And that reason was his embracement, his affiliation, and association with MS-13. It's a violent, deadly, aggressive street gang.
"You heard me talk about MS-13. And some of you may know, have heard of them, some of you may not have. You're going to hear the testimony of an expert witness.
"And he’s going to tell you about MS-13. Its history. Its nature. To do that testimony, you're going to see the motivation this Defendant would have had to kill Francisco. The motivation that he would have had to even be in that area anyway. Looking for somebody. And *513 you’re going to hear testimony and evidence about tile Defendant's affiliation and embracement of MS-13. That’s going to be from his own words at the scene. There are going to be other evidence of that."
. Gutierrez was also charged with conspiracy to murder; however, the trial court granted his motion for judgment of acquittal as to this charge.
. Md.Code (2002) § 2-201(a) of the Crim. Law Article provides:
“In general. — A murder is in the first degree if it is: (1) a deliberate, premeditated, and willful killing; (2) committed by lying in wait; (3) committed by poison; or (4) committed in the perpetration of or an attempt to perpetrate: (i) arson in the first degree;(ii) burning a barn, stable, tobacco house, warehouse, or other outbuilding that: 1. is not parcel to a dwelling; and 2. contains cattle, goods, wares, merchandise, horses, grain, hay, or tobacco; (iii) burglary in the first, second, or third degree; (iv) carjacking or armed carjacking; (v) escape in the first degree from a State correctional facility or a local correctional facility;(vi) kidnapping under § 3-502 or § 3-503(a)(2) of this article; (vii) mayhem; (viii) rape; (ix) robbery under § 3-402 or § 3-403 of this article; (x) sexual offense in the first or second degree; (xi) sodomy; or (xii) a violation of § 4-503 of this article concerning destructive devices.”
Md.Code (2003) § 4-204(a) of the Criminal Law Article provides:
“Prohibited. — A person may not use an antique firearm capable of being concealed on the person or any handgun in the commission of a crime of violence, as defined in § 5-101 of the Public Safety Article, or any felony, whether the antique firearm or handgun is operable or inoperable at the time of the crime."
. In its closing, the defense pointed out that the crime scene was not well-lit, and there was no light directly in front of the house by which the victim was standing. It further identified and emphasized inconsistencies in the testimony of the State witnesses: one witness (and possibly another, who told the detective on the scene) identified the shooter as a person with long black hair, when, at die time of the shooting, the appellant had short black hair and Hector Tirado, a witness and co-occupant of the car, who identified the appellant as the murderer, had long black hair. Tirado, testified that he was sitting in the back seat passenger side, behind a window with illegal black tints that did not roll down, which contradicted the testimony of a witness who identified the shooter as having "shoulder length, long black hair,” sitting in the front passenger seat. That witness was never subpoenaed or brought to court.
In addition, the appellant contended that some of the State's witnesses had a motive to lie, noting that one, Luis Alvarado-Pineda, was offered a plea deal for his testimony and that Tirado was never charged. Rather than offering lack of motive or intent as a defense, the appellant sought to exclude evidence bearing on the subject. Indeed, the defense objected to the State's introduction of expert evidence of gang affiliation on several occasions. Any discussion of gang membership in which the defense engaged was to rebut the State's accusations that the appellant was affiliated with the MS-13 gang.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753161. Public record. Not legal advice.