Burris v. State

BATTAGLIA, J. In the present case, Shelton Burris, 1 was convicted of the first degree murder of Hubert Dickerson, Jr., and a related charge, after a jury trial in the Circuit Court for Baltimore City. Burris, according to the State’s theory of the case, was a “hit man” for the Black Guerilla Family gang (“BGF”) and was ordered by his gang boss, “Bam,” 2 to Mil Hubert Dickerson, Jr., because Mr. Dickerson owed Bam money. The State moved, prior to trial, 3 to introduce the testimony of Sergeant Dennis WorMey of the Baltimore City Police Department, proffered as a gang expert, who would identify Burris as a member of BGF, and testify that BGF was a “violent” gang that would commit murder on the basis of a debt owed to one of its members: “This is what [BGF] do[es]. You owe them money.

They’re going to go out and Mil you----” According to the State, Sergeant WorMey’s testimony was necessary to establish Burris’s membership in BGF and, in turn, Burris’s motive: that he killed Mr. Dickerson “because that’s what he was ordered to do” by Bam, his BGF gang boss. 4 The State further proffered that Sergeant Workley’s testimony was necessary were witnesses to recant pretrial statements implicating Burris at trial, because the State intended to have Sergeant Workley testify as to “what BGF is, what they do. They extort.” ³⁷⁵ Burris’s counsel, in response, argued that Sergeant Workley should not be permitted to testify, because “every single witness in this case has known [Burris] for years. So, this isn’t a question about identity[,]” and that gang evidence was not relevant to motive: The motive ... is that supposedly they’re alleging that Mr. Burris shot Mr. Dickerson because Mr. Dickerson owed Bam money. Not that it had anything to do with the fact that either of these gentlemen may or may not have been in the organization....

All the State wants to do is taint the water in this case and taint [Burris] and say, okay, he’s a gang member. The court, thereafter, ruled the evidence admissible to prove motive based upon its understanding of the State’s proffer: All right. Based upon my understanding at this time and in what was presented to me before, I am prepared to allow this information to come in. I believe that it is relevant in that the theory of the State’s case as all parties seem to consider that the murder was as a result of a debt that was owed, but why the Defendant is the person who did the shooting because a debt was owed to Bam involves the question of their relationship.

That their relationship that the State is prepared to prove involves the Black G[ue]rilla[ 5 ] Family — I believe makes that relevant evidence.[ 6 ] The State, at trial, called several crime scene witnesses and the medical examiner, in addition to three fact witnesses who the State indicated, prior to trial, would likely recant. One of ³⁷⁶ these witnesses allegedly told investigators that Burris was a “hit man” for Bam, that Bam told Burris to kill the victim, that he heard Burris bragging to Bam about shooting a man, and that Bam responded to Burris’s bragging by stating “[tjhat’s my boy, straight G[ue]rilla”; another allegedly had told investigators that she overheard Burris state that he had shot a person subsequent to Mr. Dickerson’s murder because “he owed Bam some money”; and the third allegedly had stated to detectives he had witnessed Burris shoot the victim and that Burris did so over a debt. 7 Two of these witnesses allegedly identified Burris and Bam as members of BGF. At trial, all three witnesses — Austin Lockwood, Ashley Sparrow, and Dominic Falcon — testified that they either did not remember or fabricated their pre-trial statements to investigators implicating Burris and, accordingly, recordings of their pretrial statements were played for the jury pursuant to Rule 5-802.1(a). 8 The State then called Sergeant Workley and, prior to his taking the stand, a bench conference ensued during which the State identified various photographs of Burris’s tattoos that it intended to present to Sergeant Workley for the purpose of having the Sergeant explain their relationship to Burris’s membership in BGF. Burris’s counsel objected to Sergeant Workley testifying as to Burris’s tattoos, “because the[ ] tattoos [were] not relevant to th[e] case in any, in any way ³⁷⁷ whatsoever.” The court ruled, however, that Sergeant Workley would be permitted to testify as to the substance of Burris’s tattoos insofar as they were related to his opinion that Burris was a member of BGF: As these [tattoos] have an appearance of prejudice because there are some nasty things said, but just as if he had decided as he may someday to have tattooed I killed Hubert Dickerson, that if he chose to have it written on him may come back to be evidence against him at some point.

What I’m going to do is allow the State after establishing the S[e]rge[a]nt’s expertise to go through pictures [of Burris’s tattoos] one at a time and ask if there is anything in the picture that you see that is of significance in your determination on this question of your expert opinion. If they are, then I’ll allow him to say what it is. If, in any of these pictures he says, I don’t know what it is, it doesn’t mean anything, we can take that picture out and it’s, it’s useless, but we have to understand that I am expecting the Detective S[e]rge[a]nt to say that within the world of gang orientation, marks are left in places, on walls, on buildings, on cars, on people so that other members of their own gang and others gangs understand what they’re saying. If the Detective S[e]rge[a]nt can interpret that for us, then he can interpret it.

Sergeant Workley was then qualified as an expert “in the field of gangs, gang membership, gang insignia, gang ranking, [and] gang identification.” Burris’s counsel interposed numerous objections during Sergeant Workley’s testimony, 9 which began by explaining gang practices in general: ³⁷⁸ [STATE’S ATTORNEY]: [0]nce in a gang, can members quit whenever they want to? [SERGEANT WORKLEY]: Usually not. [STATE’S ATTORNEY]: And what is a phrase like blood in, blood out mean? [SERGEANT WORKLEY]: They’re a blood member for life. [STATE’S ATTORNEY]: And does the concept of respect, the word respect have a special significance in the world of gang, criminal street gangs? [SERGEANT WORKLEY]: Absolutely one hundred percent. That’s their code, their code, their creed they live by. They have to be respected. [STATE’S ATTORNEY]: And how does a gang member gain respect in their membership ... ? ... Generally speaking. [SERGEANT WORKLEY]: Generally speaking, by committing crimes. [STATE’S ATTORNEY]: Does turf or territory have special significance in the gang culture? [SERGEANT WORKLEY]: Sure. [STATE’S ATTORNEY]: And what about the term payback? .... [SERGEANT WORKLEY]: Just like any other criminal enterprise, if you do something against, you know, even going as far back as prohibition, when you did something against somebody else it was always pay back for whatever you did and whatever happens.

There’s always conse ³⁷⁹ quences to your actions and actions always have consequences. Sergeant Workley further testified about the history, hierarchy, organization, and practices of BGF: [STATE’S ATTORNEY]: Can you tell me ... briefly what the Black G[ue]rilla family is? [SERGEANT WORKLEY]: BGF started out, they still are a prison gang. They’re a prominent prison gang in the State of Maryland. They control most of the jails in the State of Maryland.

They control what goes on inside and they get information that happens on the outside and generally inside speaking, they control the narcotic trade inside, inside the jails and the inflow of information going back and forth. [STATE’S ATTORNEY]: Well, let’s break it down. Does BGF have a constitution? [SERGEANT WORKLEY]: Yes, they do. [STATE’S ATTORNEY]: Or a creed. Can you explain what that means? [SERGEANT WORKLEY]: We learned BGF inside the prison walls, they have a leader and that leader came up with the concept, core ideas. It’s just like any other business.

Any other gang, there’s a leader. He came up with concepts. There’s a rank structure. There’s rules to be followed.

If you don’t follow those rules, there’s consequences and actually what they did inside the prison walls is that they came up with a way and they found an author and they authored a book, a manual for them to follow that creed by. [STATE’S ATTORNEY]: And based on your experience and training, is the Black G[ue]rilla Family run like a business? [SERGEANT WORKLEY]: Absolutely. ³⁸⁰ [STATE’S ATTORNEY]: And just, does Black G[ue]rilla Family use like it’s own language? [SERGEANT WORKLEY]: Absolutely. When most members are inducted into BGF, they are taught that, basically almost like a Bible. Like we, you know we teach our regular, you know, for the ladies and gentlemen of the jury, like your kids, you’re teaching them Bible study. They have, you know what they go by and actually they speak Swahili and the reason they speak Swahili is so the prison officials can’t understand what they’re saying and sometimes most of them, they learned how to write in that so that can’t be — it’s harder, it’s harder to break their codes. [STATE’S ATTORNEY]: And would you say that — does Black G[ue]rilla Family actually even have things like their own laws and guidelines? [SERGEANT WORKLEY]: Absolutely.

They have a constitution within that book that they published. You know, if you do this, this is what the actual consequences are. This is what you’re allowed to do. This is what we don’t allow you to do. [STATE’S ATTORNEY]: ...

Does Black G[ue]rilla Family, do they rank their members? [SERGEANT WORKLEY]: Sure, absolutely. [STATE’S ATTORNEY]: Do people have their place in that organization? [SERGEANT WORKLEY]: Yes, they do. [STATE’S ATTORNEY]: What is a, what would the, what would the term hit man be in Black G[ue]rilla Family? What would that person be? [SERGEANT WORKLEY]: Just like you said. That person goes out and they carry out the orders of violence either by assault and murder. Sergeant Workley then testified as to his ultimate conclusion that Burris was a member of BGF: ³⁸¹ [STATE’S ATTORNEY]: Now S[e]rge[a]nt Workley, in the course of your work, do you review law enforcement records about individual gang memberships? [SERGEANT WORKLEY]: Yes, I do. [STATE’S ATTORNEY]: And has the Department of Corrections listed the Defendant Tyrone Burris as a member of the Black G[ue]rilla Family?[ 10 ] [SERGEANT WORKLEY]: Yes, they have. [STATE’S ATTORNEY]: Now based on information that you were able to review and your expertise in gangs, can you make a conclusion as to whether the Defendant is a member of the Black G[ue]rilla Family? [SERGEANT WORKLEY]: Mr. Burris is a member of the Black G[ue]rilla Family.

Sergeant Workley, thereafter, testified regarding tattoos on Burris’s face and upper body as seen in photographs proffered for identification by the prosecutor. 11 As to tattoos on Burris’s forearms that read “Baltimore” and “Franklin,” Sergeant Workley opined, “[s]everal gang members, they tattoo themselves with the area that they’re in, that they, you know, do their business in.” Sergeant Workley also testified that Burris’s tattoo on his left forearm “187” was “a penal code in ³⁸² California for homicide” that was “[absolutely” seen on gang members. As to Burris’s “MOB” tattoo on his left forearm, Sergeant Workley testified: Knowing that he’s a member of the Black G[ue]rilla Family, two things. MOB in Baltimore means member of blood or money over bitches. Since he’s a member of BGF, it’s probably money over bitches....

A tattoo on Burris’s chest of “Sixx 9,” according to Sergeant Workley, would be his “street name.” A tattoo on Burris’s left biceps depicting a weapon being fired with the words “Death B4 Dishonor” was also, according to Sergeant Workley, common “on guys that are inside the walls. They get tattoos and come out basically depicting and saying, you know, they’ll die before they dishonor themselves.” Sergeant Workley identified an “OG” tattoo on Burris’s left forearm as meaning “original gangster” and, finally, opined that Burris’s tattoo on that same forearm which read “real nigga don’t die,” was similar to others he had seen on gang members. After Sergeant Workley’s testimony Burris’s counsel restated for clarification the basis for his numerous objections interposed during that testimony: You’ve got a murder case here and to the best of what I’ve heard in this case and I could be wrong, but to the best of what I’ve heard in the case, nobody ever said that this was a gang ordered hit. So, that’s why I have to object to all this stuff about the gang and the prejudice is outweighing the probative value.

Then you have these tattoos that have guns. These tattoos have death before dishonor and all this other stuff and this is a murder case and none of this stuff has anything to do with the identification of the Defendant involved in this particular murder. It isn’t like anybody said, I saw this tattoo.... So, we’ve got a murder case and I just think that the prejudice clearly outweighs the probative value.

It poisons the well for the jury. So, that’s why I have to object to all of these and [Sergeant Workley’s] testimony. ³⁸³ The court disagreed and ruled Sergeant Workley’s testimony was admissible to show why witnesses recanted and to establish that Burris was a member of BGF: Because we have witnesses who have changed their testimony from the time that they met with the police shortly after this event, to taking four[ 12 ] different tacts of denying their statements.... Each of them in their statements indicate some level of fear of the Defendant, some specifically stating because of his gang involvement or Barn’s gang involvement. That’s how it got to be relevant in the case.

It was in the statements. I wasn’t going to clear it out of the statements. Now, the question is whether or not the State should be allowed to prove that the Defendant is in fact a member of a gang. I think because of the way in which the information came from the reluctant witnesses, it is unavoidable.

Had the witnesses not been and I am satisfied afraid to testify, we could have kept this all out, but because they changed their testimony because I am satisfied that they were afraid to testify truthfully, then everything they said virtually has to come in to explain why they’ve changed their testimony.... Now, [Sergeant Workley] who is before us now and the evidence that we’re considering is only for the purpose of establishing whether or not the Defendant is a member of the gang. I remind you and the record that in anticipation of this, we asked the general voir dire question about whether information or references about gang activity would interfere with the juror’s ability to render a fair and impartial verdict. That said, ...

I am anticipating from [both Burns’s counsel and the prosecutor] some form of specific instruction for me to give them about how they should be processing this information and I’ll consider what ³⁸⁴ either one of you suggests about that instruction, but that’s later on. So, I believe your position and the basis for my ruling are ... on the record as they can be. Burris was convicted of first degree murder and use of a handgun in the commission of a crime of violence. The Court of Special Appeals, in a reported opinion, affirmed Burris’s convictions determining, inter alia, that the Circuit Court did not err in permitting Sergeant Workley to testify.

Burris v. State, 206 Md.App. 89 , 47 A.3d 635 (2012). We granted certiorari, Burris v. State, 429 Md. 81, 54 A.3d 759 (2012), to consider the following questions: 1. Whether it was error for the trial court to admit extensive gang-related evidence, including expert testimony, that Mr. Burris was a member of the Black Guerrilla Family gang? Whether the Court of Special Appeals erred in holding that expert testimony on gangs was admissible to explain why several witnesses recanted prior to trial?

We shall hold that the trial court abused its discretion in allowing Sergeant Workley to testify as he did, because the probative value of his testimony was substantially outweighed by unfair prejudice, and because this error was not harmless, we shall reverse and remand for a new trial. The State sought to introduce Sergeant Workley’s testimony under Rule 5-404(b), positing that Burris’s BGF gang membership was a bad act that was probative of his motive to kill Mr. Dickerson. Rule 5-404, governing admission of prior bad acts, provides: Character evidence not admissible to prove conduct; exceptions; other crimes. (a) Character evidence.

(1) Prohibited uses. Subject to subsections (a)(2) and (3) of this Rule, evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion. (2) Criminal and delinquency cases. Subsection (a)(2) of this Rule applies in a criminal case and in a delinquency ³⁸⁵ case.

For purposes of subsection (a)(2), “accused” means a defendant in a criminal case and an individual alleged to be delinquent in an action in juvenile court, and “crime” includes a delinquent act as defined by Code, Courts Article, § 3-8A-01. (A) Character of accused. An accused may offer evidence of the accused’s pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.

(B) Character of victim. Subject to the limitations in Rule 5-412, an accused may offer evidence of an alleged crime victim’s pertinent trait of character. If the evidence is admitted, the prosecutor may offer evidence to rebut it. (C) Homicide case.

In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Character of witness. Evidence of the character of a witness with regard to credibility may be admitted under Rules 5-607, 5-608, and 5-609. (b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. Rule 5-404(b) is a rule of exclusion, State v. Westpoint, 404 Md. 455, 488-89 , 947 A.2d 519, 539 (2008); Wynn v. State, 351 Md. 307, 316-17 , 718 A.2d 588, 592-93 (1998); see Harris v. State, 324 Md. 490, 494-95 , 597 A.2d 956, 959 (1991), grounded in the reality that “substantive and procedural protections are necessary to guard against the potential misuse of other crimes or bad acts evidence and avoid the risk that the evidence will be used improperly by the jury against a defendant.” Str eater v. State, 352 Md. 800, 807 , 724 A.2d 111, 114 (1999). In fact, “the evidence must be ‘clear and convincing in establishing the accused’s involvement’ in the prior bad acts.’ ” ³⁸⁶ Gutierrez v. State, 428 Md. 476, 489 , 32 A.3d 2, 10 (2011), quoting State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896, 898 (1989).

Admissibility of prior bad act evidence is limited to situations in which the evidence is “specially relevant” to a contested issue, beside an accused’s propensity to commit crime, “such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Rule 5-404(b); see Streater, 352 Md. at 808 , 724 A.2d at 115 . When special relevance has been demonstrated and an accused’s involvement in a prior crime or bad act has been established by clear and convincing evidence, however, a trial court still must carefully balance the probative value of prior bad acts evidence against its potential for unfair prejudice under Rule 5-403. Gutierrez, 423 Md. at 497-98 , 32 A.3d at 14-15 , Boyd v. State, 399 Md. 457, 483 , 924 A.2d 1112, 1127 (2007); Faulkner, 314 Md. at 634-35 , 552 A.2d at 898 . Rule 5-403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Gutierrez v. State, 423 Md. 476 , 32 A.3d 2 (2011), we recently were called upon for the first time to determine “whether expert testimony about the history, hierarchy, and common practices of a street gang is admissible as proof of motive or is prohibited by Maryland Rule 5-404(b) as evidence of other crimes, wrongs or acts.” Id. at 481, 32 A.3d at 5 . We held that “such testimony is permissible where 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.” Id. at 481-82, 32 A.3d at 5 . In the case, a car carrying Gutierrez and three other men approached a house where a group of people was congregating and Gutierrez “addressed the group, shouting ‘Mara Salvatru ³⁸⁷ cha[,]’ [which] witnesses interpreted ... to mean that [Gutierrez] was a member of the MS-13 street gang.” Id. at 482, 32 A.3d at 5 . Gutierrez then demanded to know the gang affiliation of the assembled group, to which one member responded by insulting MS-13.

Gutierrez retaliated by firing multiple gunshots into the group, killing the victim. At Gutierrez’s trial, several witnesses testified about what Gutierrez shouted and also that the victim’s murder was “motivated by Gutierrez’s ties to MS-13,” and was part of Gutierrez’s initiation into the gang, because “ ‘[y]ou have to kill someone to get into MS[-13.]’ ” Id. at 497, 32 A.3d at 14 . The prosecution also called Sergeant George Norris “as an expert witness ‘in the area of MS-13 and gangs in general[,]’ ” to establish Gutierrez’s gang-related motive for the shooting. Id. at 484, 32 A.3d at 6 .

We summarized Sergeant Norris’s testimony as: [Sergeant] Norris provided jurors with an overview of the MS-13 culture. He began by explaining that “MS-13” stands for “Mara Salvatrucha,” with “mara” meaning gang or group, “salva” referring to El Salvador, and “trucha” translating as “watch out” or “look out.” The 13 in the gang’s name, he testified, is “indicative of their alliance with the Mexican Mafia[.]” [Sergeant] Norris also described how prospective members are inducted, or “jumped,” into MS-13, which involves a 13 second beating by four or five gang members. He identified Langley Park, the location of the apartment where Gutierrez, [and other occupants of the car] were congregated before driving to Riverdale, as an MS-13 stronghold. Riverdale (the scene of the crime), on the other hand, was a predominantly Mexican neighborhood and “[t]he gangs within that community are more of the Mexican-based gangs as opposed to MS-13, which is predominantly Central American based.” Thus, Riverdale is “an area where rival gang members are expected to be.” [Sergeant] Norris explained that MS-13 members respond to criticism of their gang or untruthful displays of MS-13 membership (an act known as “false flagging”) with violence “up to death.” In fact, MS-13 is “the gang that [law ³⁸⁸ enforcement] had seen the most violence with recently for the past four, four and a half years in this region----” Finally, [Sergeant] Norris, who often conducted internet investigations by visiting gang members’ MySpace webpages, articulated a belief that Gutierrez was affiliated with MS-13 based on pictures of the defendant taken from MySpace.

Id. at 484, 32 A.3d at 6-7 . Gutierrez argued that he was entitled to a new trial, because “the trial court abused its discretion by admitting [Sergeant] Norris’s irrelevant and unfairly prejudicial testimony on gang activity.” Id. at 486, 32 A.3d at 8 . We disagreed and initially determined that the “threshold requirement” for admission of gang expert testimony was the fact evidence demonstrating the crime was gang related: We agree with the Supreme Court of New Mexico that courts must be vigilant in guarding against the improper use of gang affiliation evidence “as a backdoor means of introducing character evidence by associating the defendant with a gang and describing the gang’s bad acts.” [State v. Torrez, 146 N.M. 331 , 210 P.3d 228, 235 (2009) ]. Thus, we hold that the threshold requirement for the admissibility of gang expert testimony is fact evidence showing that the crime was gang-related.

Accord Torrez, 210 P.3d at 235-36 . Proof of such a link transforms a defendant’s gang membership, current or prospective, from an impermissible prior bad act to a concrete component of the crime for which the defendant is on trial. To be clear, this requirement may be satisfied by fact evidence that, at first glance,