concurring in part and dissenting in part:
I concur in the majority’s determination that Pineda’s conviction ought to be reversed because of the erroneous instructions given the jurors concerning the defense of self-defense. However, I disagree that, at a new trial, the jurors should be permitted to hear the testimony of Dr. Ron Martinelli, the expert called by the defense, or any other so-called expert on gang culture, who would testify concerning the reasonableness of a gang member’s belief of apparent imminent danger.
The record below discloses that the defense, outside the jury’s presence, offered the testimony of Ron Martinelli. Dr. Martinelli described himself as a criminologist, a criminal justice consultant and a former law enforcement officer with twenty-four years of experience as a police officer. While Martinelli was not asked to describe his qualifications for the record, his resume is a part of the record and discloses that he obtained a Doctor of Philosophy in Criminology in 1986 from Columbia Pacific University. He worked for the San Jose Police Department from 1977 through 1992. His duties while so employed were varied; “Street Gang Investigations” was one of a wide array of assignments. From 1992 to 1993, he was involved in the administration of the California POST accredited law enforcement Basic Police Academy. He left in 1993 to begin full-time consulting. In 1994, he served as a police officer and detective for the Morro Bay Police Department. His duties included investigating felonies, major crimes and narcotics violations. Gang work is not mentioned in the resume. Martinelli’s resume also lists his work as a private consultant from 1980 through the present. His services as a consultant are varied, and gang violence and community-oriented policing strategies are mentioned, along with a variety of other areas of expertise.
The heart of Martinelli’s testimony began with his agreement with Pineda’s counsel that “gang members do not act, think or react in the same fashion as nongang members.’ ’ At this point, the trial judge intervened to ask Martinelli if he had interviewed any of the people involved in this case. Martinelli had not. The testimony continued and finally, after a lengthy hypothetical predicate, Martinelli was asked for his opinion as to whether an individual’s
gang subculture/affiliation would be a significant factor in considering or evaluating whether a reasonable person under the circumstances that existed that night that this particular individual from Southern California was confronted with, whether a person under those circumstances would have a belief that he was in imminent danger of his life or great bodily injury when confronted with these two other individuals?
*216In response, Martinelli testified that
[t]here is always a risk associated with anybody involved in gang activity, the risk of injury or the risk of death. Their perception^], because of the environment that they live in, ... are heightened as compared to a regular person on the street .... I think that being involved in the totality of that gang environment and that experience, coupled with the situation that is occurring immediately in front of them in which they are directly involved, I think has a great basis on how that person is going to attempt to defend themselves or fend off an attack.
Pineda’s counsel added more to his original hypothetical and eventually asked Martinelli for his opinion as to “whether the decision to use the knife was formed in passion and was the product of an unconsidered and rash impulse.’ ’ Martinelli responded by agreeing with counsel’s statements and adding that it was
an impulsive act, but certainly a desperate act in that case, again, given a history of a person that grew up in a gang environment, had been around violence, especially in southern California which is extremely violent, being involved in a direct confrontation with one gang member with another gang member possibly coming in and having to be held back by another person, feeling that level of jeopardy, and in recalling rat packs and what that is like in that gang environment, I think the person would be quite desperate to finish the fight with one person present for the fight with the second person.
The State objected to Martinelli’s testimony and characterized the witness’s conclusions, in a nutshell as, “based upon my experience with gang members and violence out of California, he’s justified in using deadly force under that factual scenario.” In my opinion, the State’s characterization is a fair one. Martinelli’s testimony, if believed, permits the conclusion that every gang member has been inculcated with the belief that he must respond violently to every potential act of aggression — without the intent to commit murder as his state of mind. Martinelli has never personally interviewed Pineda nor has he consulted with any psychiatric expert who has interviewed or tested Pineda. His testimony is simply: Pineda, as a gang member, has a heightened sense that he must respond violently to protect himself and so he does not possess the intent to commit murder. If this is so, no gang member is ever guilty of murder. I cannot accept that this proposition is proper evidence for the jury and remain unconvinced that Martinelli, in any event, possesses sufficient knowledge and expertise to so testify.
It is surprising to me that the majority would volunteer that this type of evidence is admissible at a new trial. The district court al*217ready heard Martinelli and, in a proper exercise of discretion, refused to let the jury hear it. The trial judge correctly expressed his concern that basic relevance had not been established since, according to Martinelli’s resume, his gang experience as a police officer was dated and was not shown to be similar to the gang environment of Reno in 2004.
Pineda’s counsel sought to admit the testimony based upon the authority of Boykins v. State.1 In that case, we held that the effect of domestic violence upon a person’s beliefs, behavior and perception is admissible in a murder prosecution to show the defendant’s state of mind.2 Our decision in Boykins was based upon NRS 48.061, which authorizes the admission of expert evidence concerning the effect of domestic violence on the beliefs, behavior and perception of the person when determining state of mind or self-defense.3 Boykins is this court’s recognition of a legislative policy determination concerning the admissibility of evidence documenting the effects of domestic violence. Defense counsel candidly admitted to the court that there is no documented “gang member syndrome” as described in the substance of Martinelli’s testimony. Counsel acknowledged that Martinelli’s testimony was “cutting edge” but urged the court to accept the premise that recognition of a gang member syndrome, like Battered Women’s Syndrome, had to start somewhere. Counsel asked the court to accept Martinelli’s testimony as helpful for the jury concerning what Pineda was thinking, why Pineda may have reacted as he did and, though not a defense to murder, as evidence that “can go to an issue of self-defense in explaining why certain things were done.” The trial judge denied Pineda’s request to admit Martinelli’s testimony. The trial judge’s determination should be affirmed.
First, if the majority is to evaluate the trial judge’s decision at all, it must do so under an abuse of discretion standard. I am hard pressed to conclude that the trial judge abused his discretion. He heard the evidence, expressed doubts based upon legal relevance as to the currency of the witness’s experience and the similarity of the witness’s experience in the 1970s in California to northern Nevada in 2004. These doubts are legitimate, substantive and within the discretion of the court.
Additionally, the trial judge questioned the applicability of the Boykins decision to the facts at hand. This also appears to be within the discretion of the trial judge. In Boykins, the court dealt with the application of legislative policy memorialized in a statute authorizing the admissibility of evidence of Battered Women’s Syndrome. Here, we have no statute and no recognized syndrome *218of a person victimized by violence who learns, as a product of such violence, patterns of survival behavior. In Boykins, the expert who testified was an acknowledged expert concerning Battered Women’s Syndrome. The jury was required, before accepting her testimony, to determine whether Boykins had established that she suffered from Battered Women’s Syndrome.
In contrast, in this case, the majority concludes that the trial judge should admit the testimony of a person with no direct experience with the current gang culture in northern Nevada, the currency of whose experience with gangs is questionable, dated and regionalized to southern California and who has not ever spoken with, tested or interviewed the defendant. The majority concludes that it is permissible to admit “expert” testimony that the defendant’s conduct in killing the victim was, as characterized by the State, justified — because the defendant is a gang member and therefore possessed of a heightened sense of danger.
Finally, I am concerned that the analysis applied by the majority in formulating the conclusion that this kind of “expert” testimony is admissible was never offered to the trial judge for his consideration. Pineda’s appellate briefs never discuss Boykins nor do they address the specific questions that were objected to at trial and precluded by the trial judge. Instead, Pineda argues that Martinelli’s testimony would have helped the jury understand the imminent danger in which Pineda found himself. Pineda argues that, because the trial judge had excluded Martinelli’s testimony, he, Pineda, was forced to take the stand and, in doing so, his credibility was questioned by the State, “discrediting [Pineda’s] attempts to explain his state of mind and his circumstances.” The majority’s analysis morphs Pineda’s appellate argument further into an analysis which would permit the use of “expert” testimony descriptive of a generalized sense of danger that is characteristic of gang interactions to support Pineda’s claim of self-defense. If only this were so. The fact is, Martinelli’s testimony was offered at trial, as stated explicitly by Pineda’s trial counsel, to show, ‘ ‘what perhaps Mr. Pineda was thinking or why he may have reacted the way that he reacted on this particular occasion.”
If we are indeed to leave questions of the admissibility of evidence to the discretion of the trial judges, then we must review the record to determine if the trial judge acted with prudence and deliberation. The record supports the conclusion that the trial judge, who had the benefit of seeing and hearing the proposed testimony during a hearing outside the jury’s presence, exercised his discretion in a prudent and calmly deliberative fashion. I would not volunteer a road map for remand endorsing this evidence for another purpose which I believe is equally suspect.
116 Nev. 171, 995 P.2d 474 (2000).
Id. at 176, 995 P.2d at 477-78.
Id.