(concurring specially)-
I concur with the result reached by the majority but respectfully disagree with the majority’s analysis relating to the admission of expert testimony on gangs and gang affiliation. For reasons similar to those mentioned in my special concurrence in DeShay, we should not exclude a gang’s expert testimony primarily because the testimony was “largely duplicative of that given by witnesses with firsthand knowledge who had already testified.” The majority again fails to utilize our clear abuse of discretion standard, which we have used in these circumstances in the past because the district court should be given broad discretion in deciding to admit expert testimony. State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995). This decision creates a murky new standard when it announces: “here significant parts of the expert’s testimony were beyond the margin of what we deem acceptable. Therefore, we conclude that there was little, if any, real value to much of the gang expert testimony, especially when considered in light of its probative value versus potential prejudice * * The majority’s tepid decision departs from our clear abuse of discretion standard, but then nevertheless holds that “the admission of the testimony was not sufficiently prejudicial to justify a new trial.”
The question now is whether expert testimony can ever be used even when the expert uses the criteria as part of an investigation workup? The majority’s analysis would appear to exclude such testimony, even though there was no motion in limine, cross-examination or impeachment evidence offered by the defense, and gang-related activity is an element of the crime that the state has to prove beyond a reasonable doubt. It is unclear why in this case there was no “real value” to the gang-related testimony or why it was held to be “beyond the margin of what we deem acceptable.”
I agree with the majority that if the admission of such testimony is not carefully monitored, a defendant can end up being tried for the criminal actions and bad acts of the others. However, it is the primary responsibility of defense counsel to do such monitoring and if the testimony is objectionable, to make proper and timely objections. Otherwise, the trial court must sua sponte interject itself into the trial tactics of presenting a case. Here, a motion in limine and hearing as to foundation would have provided a basis for the judge to respond to objections as to qualifications and the factual basis for the objection and at the same time provide a record on appeal. Now, because of an inadequate record, the majority is hampered in providing any guidance or to delineate in detail to counsel or the trial court as to what “significant parts of the expert testimony were beyond the margin ‡ ⅜ ⅜ »