State of Minnesota, Respondent, vs. Mitchell John Stark, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-1048

 

State of Minnesota,

Respondent,

 

vs.

 

Mitchell John Stark,

Appellant.

 

Filed March 16, 2004

Affirmed

Kalitowski, Judge

 

Meeker County District Court

File No. K600435

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355-2155 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            This appeal from a conviction for drive-by shooting committed for the benefit of a gang and second-degree assault has been remanded by the supreme court for reconsideration in light of that court's decision in State v. DeShay, 669 N.W.2d 878 (Minn. 2003).  Because we conclude that the admission of gang-expert testimony was not error under DeShay, we affirm.

D E C I S I O N

            The supreme court granted further review of our opinion affirming appellant Mitchell Stark's conviction of drive-by shooting committed for the benefit of a gang and stayed the appeal pending its decision in State v. DeShay, 669 N.W.2d 878 (Minn. 2003).  State v. Stark, No. C0-01-1048 (Minn. App. May 28, 2002), review granted and appeal stayed (Minn. Aug. 20, 2002).  Following the release of DeShay, the supreme court remanded this case to us for consideration in light of DeShay.

            Stark challenges the trial court's admission of testimony from a gang expert.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The admission of expert testimony is also within the broad discretion of the trial court and is reviewed under a clear-abuse-of-discretion standard.  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).

            The supreme court held in DeShay, 669 N.W.2d 878, that trial courts should exercise caution in admitting gang-expert testimony and that some testimony on the characteristics of gangs and the identification of gang members should not be admitted.  The court noted several concerns:  (1) gang-expert testimony may be "largely duplicative" of testimony from lay witnesses, which, the court stated, "is how the state can and should go about proving the essential elements" of a crime committed for the benefit of a gang, id. at 886; (2) expert testimony may be used to "launder inadmissible hearsay evidence," id.; (3) testimony may serve as a pretext for admitting far-reaching opinions on criminal gangs in general, id. at 887; (4) the ten-point gang identification criteria employed by experts are of questionable reliability, id. at 887 n.8; and (5) testimony concerning prior offenses of gang members may be unduly prejudicial, see id. at 887 (noting that defendant should not be in the position of having to defend against criminal allegations made against others).  Despite these concerns, the supreme court concluded that admission of the expert testimony in DeShay was harmless error.  Id. at 888.

            Here, the state presented the expert testimony of Officer James Rugel, a Minneapolis police officer and former member of the Minnesota Gang Strike Force.  The state also presented the testimony of Fabrianne McGaw and Dustin Boettcher, both of whom pleaded guilty to offenses related to the drive-by shooting, and police officers who executed a search warrant at the apartment Stark shared with Boettcher and another man.

            Officer Rugel's testimony that the Hutchinson Gangster Disciples was a "gang," as defined by Minn. Stat. § 609.229, subds. 1, 2 (1998); that its members used gang signs and had as a primary activity the commission of criminal acts; and that Stark was a member of this gang was not "largely duplicative" of lay witness testimony.  None of the state's lay witnesses, who were primarily Stark's friends and associates, testified that Stark was a member of the Gangster Disciples.  Although an officer testified that McGaw had identified Stark as a member, McGaw denied that Stark was a gang member.  And there was minimal lay testimony concerning the Gangster Disciples' leadership structure or its criminal activity.

            Officer Rugel's testimony did include some hearsay statements.  But, as discussed above, McGaw and Boettcher repudiated two of the hearsay statements.  Moreover, the prior convictions of the Hutchinson gang members could have appropriately been established through other means.  And although Officer Rugel's testimony also included hearsay references to police reports from various local agencies concerning the activities of the Hutchinson Gangster Disciples, we cannot conclude that admission of this evidence was unduly prejudicial and constitutes reversible error.

            Another significant concern identified in DeShay is the risk that gang-expert testimony may range far afield into the practices, particularly the criminal activities, of other gangs in other areas, which have nothing to do with the charged offense.  DeShay, 669 N.W.2d at 887.  Here, Officer Rugel gave minimal testimony, mostly statistical, about other gangs and other Gangster Disciples groups in Minnesota.  But he did not offer inflammatory testimony about members of other gangs committing heinous crimes.  And the prior convictions he identified on the records of Hutchinson Gangster Disciples members were not for offenses significantly more serious than the drive-by shooting charged in this case.

            Another concern expressed in DeShay, the reliability of some of the ten-point gang criteria, is alleviated here because Officer Rugel based his testimony on the more reliable of the ten criteria.  Id. at 887 n.8.  A photograph of Stark with one admitted Gangster Disciple member and another alleged member, all of them flashing the gang's hand sign, was admitted as a reliable indicator that Stark at least associated with gang members.  Similarly, Stark not only "associate[d] on a regular basis" with known gang members, but also roomed with them in an apartment in which gang paraphernalia was present.  Rugel also cited Stark's writings about gang activities.  He did not rely on the more questionable criteria, including hearsay statements of "reliable sources" that Stark was a gang member or the mere fact he was arrested along with gang members.  Cf. DeShay, 669 N.W.2d at 887 n.8.

            The final concern expressed in DeShay, concerning the prejudicial impact of evidence of past crimes by fellow gang members, is not present here.  Id. at 887.  As indicated above, the prior convictions put in evidence (drug offenses, assault, and criminal sexual conduct) are not disproportionate in severity to the drive-by shooting and second-degree assault charged here.  Moreover, Officer Rugel provided no inflammatory details concerning those prior convictions.

            We conclude that admission of the gang-expert testimony here was not an abuse of discretion.

            Affirmed.