Utz v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued by teleconference

CHARLES JUSTIN UTZ, S/K/A CHARLES JUSTIN UTZ,
A/K/A JUSTIN C. UTZ
OPINION BY
v. Record No. 1188-97-4 JUDGE CHARLES H. DUFF
OCTOBER 20, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge

Sean D. O'Malie (Leon S. Demsky; Pelton,
Balland, Young, Demsky, Baskin &
O'Malie, P.C., on brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Charles Justin Utz appeals his convictions for the second

degree murder of Jose Danilo-Alberto (the "victim") and for using

a firearm in the commission of that murder. He contends the

evidence was insufficient as a matter of law to sustain the

convictions and that the trial judge erred in allowing expert

testimony of "street-gang" culture. We disagree and affirm.

I.

SUFFICIENCY OF THE EVIDENCE

"Self-defense is an affirmative defense which the accused

must prove by introducing sufficient evidence to raise a

reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va.

App. 68, 71, 435 S.E.2d 414, 416 (1993). Whether the evidence

raises such a reasonable doubt is a question of fact that will
not be disturbed on appeal unless plainly wrong or unsupported by

the evidence. See Yarborough v. Commonwealth, 217 Va. 971, 979,

234 S.E.2d 286, 292 (1977). Words alone, no matter how

insulting, are not sufficient to justify assault. See Smith v.

Commonwealth, 192 Va. 186, 189, 64 S.E.2d 761, 763 (1951); Roark

v. Commonwealth, 182 Va. 244, 252, 28 S.E.2d 693, 696 (1944).

The trier of fact may infer malice from the deliberate use of a

deadly weapon. See Perricllia v. Commonwealth, 229 Va. 85, 91,

326 S.E.2d 679, 683 (1985); Doss v. Commonwealth, 23 Va. App.
679, 685-86, 479 S.E.2d 92, 96 (1996). Moreover, "evidence of

flight may be considered as evidence of guilt along with other

pertinent facts and circumstances." Hope v. Commonwealth, 10 Va.

App. 381, 386, 392 S.E.2d 830, 833 (1990) (en banc).

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the

evidence proved that appellant possessed a concealed weapon that

he used to fatally shoot the victim in the forehead at close

range. Saul Palma, nicknamed "Primo," was a friend of the

victim. Palma testified that he and the victim, nicknamed

"Snoopy," had been outside, at night, near an apartment complex

when some "yelling" attracted the victim's attention. The victim

had been drinking. The victim and appellant exchanged insults

and argued as the victim crossed a bridge and walked toward

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appellant. Palma and one or two others followed the victim, who

approached a group of approximately ten people in a parking lot.

Appellant and the victim stood face to face. The victim "raised

his hands as if he was going to fight." Appellant "made a half

turn" and fired a single shot at close range at the victim's

head. After firing, appellant said two or three times to Palma

and Palma's friends, "you want more." Palma stated that, as the

victim approached, everyone with appellant "started walking away

towards" their car. Appellant, however, "stayed on the sidewalk"

and did not move or turn away as the victim approached him.

After appellant shot the victim, he left in a car that was

accompanied by another car. Palma never saw a gun or other

weapon in the victim's hands and, as far as he knew, nobody in

the group that he was with made any gestures indicating that they

possessed a weapon.
William Martinez was with the victim and Palma and

corroborated much of Palma's testimony. Martinez and Palma

followed the victim toward the parking lot. Martinez never saw

the victim with a weapon, nor did he see a weapon near the

victim's body after the shooting.

Frank Saffelle, Jr. testified that he operates a tow truck

that regularly patrols the parking lot where the shooting

occurred. On the night of the murder, he towed a Ford Explorer

from the parking lot to a storage lot a few miles away. After

towing the Explorer, Saffelle returned to the parking lot. While

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there, he heard "words [being] exchanged," then he heard a

gunshot. Saffelle saw a car leave "with the lights out like in a

real fast manner of leaving . . . immediately after the shot went

off."

Shortly after the shooting, Officer James Wasem was told

that the shooting suspects may have been "potentially involved in

a tow dispute," so he proceeded to Saffelle's storage lot. About

ninety minutes after the shooting, a car containing five males

arrived at the lot. Appellant was one of the five occupants who

were taken into custody.
Officer Andrew Baciocco arrived at the crime scene to

recover and document any evidence. Baciocco testified that no

weapons were found at or around the crime scene.

Officer Noel Hanrahan interviewed appellant following his

arrest. After concluding a taped interview, appellant asked

Hanrahan how the police caught him. Hanrahan testified:
He asked if we had followed the car that he
was stopped in along with several others over
by the tow company lot, if we had followed
him from the apartment house. And I told
him, no, that we had staked out Brownie's
Ford Explorer at the tow lot. He put his
head down, started shaking it back and forth,
and said we'd never would have gotten him if
he hadn't gone there.

Numerous friends of appellant who were present at the scene

testified. Although they testified, contrary to the testimony of

Palma and Martinez, that the victim kept a hand hidden under his

shirt, none of those witnesses saw the victim brandish a weapon.

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 Appellant testified that the victim approached him, cursing.

When the victim asked appellant "are you ready to die now,

puto?," appellant said he "turned around and shot the gun."

Appellant said he "thought he was going to die." On

cross-examination, appellant testified that "[w]hen he was right

behind me, I was looking out the corner of my eye, and when he

said the last thing, I just turned and went like that. Boom."

Appellant stated that the victim appeared to have a weapon

because he had a "bulge" under his shirt.
The fact finder believed the Commonwealth's evidence and

rejected the evidence presented by appellant, including his

theory of self-defense. "The weight which should be given to

evidence and whether the testimony of a witness is credible are

questions which the fact finder must decide." Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt

that appellant was guilty of second degree murder and the

attendant firearm charge.

II.

A. EVIDENCE OF GANG AFFILIATION AND CULTURE

On December 4, 1996, the trial court heard argument on a

motion in limine concerning the Commonwealth's intent to

introduce expert testimony from Detective Paul Kozich about the

characteristics and culture of street gangs and, particularly,

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about the gangs of which the victim and appellant were respective

members. Appellant argued that such testimony was not probative

of the ultimate issue in the case, namely, whether he acted in

self-defense when he shot the victim, and, if probative, it was

overly prejudicial. The Commonwealth asserted that the proposed

testimony would be relevant to rebut appellant's self-defense

claim and to show that appellant had a motive, other than

self-defense, for shooting the victim. The trial court ruled

that the testimony was "relevant to both the Commonwealth's case,

their theory of their case, and to the defendant's theory of

self-defense." However, the trial court also ruled that "[t]here

should be limits. . . . I think you have to limit it to the

areas that you were referring to today in your motions." In

response to defense counsel's request that he "reconsider at a

later point based on any authority that we may be able to come up

with," the trial judge replied, "You can always do that."
"Evidence is relevant if it has any logical tendency,

however slight, to establish a fact at issue in the case."

Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,

678 (1993).

[W]hen relevant evidence is offered which may

be inflammatory . . . its relevancy "must be

weighed against the tendency of the evidence

to produce passion and prejudice out of

proportion to its probative value." The

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 responsibility for balancing these competing

considerations is largely within the sound

discretion of the trial judge. And a trial

court's discretionary ruling will not be

disturbed upon appeal absent a clear abuse of

discretion.

Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)

(citations omitted).
Although motive is not a necessary element of murder, "'it

is relevant and often most persuasive upon the question of the

actor's intent.'" Archie v. Commonwealth, 14 Va. App. 684, 690,

420 S.E.2d 718, 722 (1992) (quoting Epperly v. Commonwealth, 224

Va. 214, 232, 294 S.E.2d 882, 892-93 (1982)). See also King v.

Commonwealth, 243 Va. 353, 367, 416 S.E.2d 669, 677 (1992).

There is little Virginia case law addressing the

admissibility of evidence of gang membership. In Payne v.

Commonwealth, 233 Va. 460, 357 S.E.2d 500 (1987), the defendant

was convicted of murdering an inmate with whom he was

incarcerated. On appeal, Payne alleged that the trial court

erroneously admitted "testimony from a fellow inmate that

defendant wished to be a member of the 'Pagans' motorcycle group,

which apparently had an active local chapter within the

correctional facility." Id. at 465, 357 S.E.2d at 503. The

fellow inmate testified that Payne told him that he needed to

prove himself in order to become a member of the "group" and that

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he would "'automatically become a Pagan' when he became a

'killer.'" Id. Finding the evidence admissible, the Supreme

Court held:
Even though the prosecution is not required
to prove motive, evidence of motive is
relevant to establish a defendant's intent.
According to the evidence, the main reason
that defendant killed the victim was because
the victim may have "snitched" on defendant,
who had planned to escape from the facility,
and because the victim had reneged on a drug
deal in which defendant had paid the victim
$500 cash to procure drugs for him. An
additional motive, according to the evidence,
was defendant's desire to be feared as a
killer in order to join the local chapter of

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 the "Pagans." Manifestly, this evidence was
relevant and properly admissible.

Id. at 465-66, 357 S.E.2d at 503.

Although gang membership alone is not evidence of a

defendant's prior bad conduct, a juror might associate a

defendant with such an affiliation as a person of bad character

or someone prone to aggressive or violent behavior. Therefore,

we analyze the admissibility of such evidence under the prior bad

act standard. Evidence of prior bad conduct is not admissible to

prove that the defendant is a person of bad character and more

likely to commit the offense charged; however, it is admissible

in certain situations. As with all evidence deemed relevant,

before it can be admitted, the trial judge must balance its

relevance against the resultant prejudice.
"Evidence of other independent acts of an
accused is inadmissible if relevant only to
show a probability that the accused committed
the crime for which he is on trial because he
is a person of bad or criminal character."
However, such evidence is admissible when it
is "relevant to an issue or element in the
present case." "[I]f such evidence tends to
prove any of the relevant facts of the
offense charged and is otherwise admissible,
it will not be excluded merely because it
also shows him to be guilty of another
crime."
Accordingly, we have held that evidence
of prior bad acts may be properly admitted

(1) to prove motive to commit the
crime charged; (2) to establish
guilty knowledge or to negate good
faith; (3) to negate the
possibility of mistake or accident;
(4) to show the conduct and feeling

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 of the accused toward his victim,
or to establish their prior
relations; (5) to prove
opportunity; (6) to prove identity
of the accused as the one who
committed the crime where the prior
criminal acts are so distinctive as
to indicate a modus operandi; or
(7) to demonstrate a common scheme
or plan where the other crime or
crimes constitute a part of a
general scheme of which the crime
charged is a part.

"With respect to these exceptions, the test
is whether 'the legitimate probative value
outweighs the incidental prejudice to the
accused.'"

Reynolds v. Commonwealth, 24 Va. App. 220, 223-24, 481 S.E.2d

479, 481 (1997) (citations omitted). See also Guill v.

Commonwealth, 255 Va. 134, 140-41, 495 S.E.2d 489, 492-93 (1998)

(discussing and analyzing "intent" exception to rule; test for

admission of evidence of other crimes requires a "causal relation

or logical connection" between past conduct and charged offense

to be admissible under that exception) (citation omitted).
While commonly recognizing that evidence
identifying a defendant as a member of a gang
may be prejudicial, since juries may
associate such groups with criminal activity
and improperly convict on the basis of
inferences as to the defendant's character,
many courts have held that such evidence may
nevertheless be admissible if it is
sufficiently relevant to a proper issue in
the case, weighing this probative value
against the danger of unfair prejudice. Gang
membership has frequently been found to be
probative and admissible, for example, as
evidence of a possible motive for the crime,
particularly in homicide cases where the
defendant and his victim are shown to have

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 been members of rival gangs; as an indication
of possible bias on the part of defense
witnesses who are shown to be members of the
defendant's gang . . . . Courts holding that
such evidence should have been excluded in
the case at hand have generally held that it
had not been shown to be probative of the
issues presented, that the point it related
to was relatively minor, or that point could
have been made with other, less prejudicial
evidence.

John E. Theuman, Admissibility of Evidence of Accused's

Membership in Gang, 39 A.L.R.4th 775 (1985). See also id. (Supp.

1997) (citing additional cases).
In United States v. Abel, 469 U.S. 45, 47 (1984), Ehle, a

government witness, implicated Abel in a robbery in which Ehle

was also involved. Abel called Mills, an inmate, as a witness.

See id. Mills, who was not involved in the robbery, testified

that Ehle told him that he "intended to implicate [Abel]

falsely." Id. In rebuttal, the government recalled Ehle, who

testified that he, Abel, and Mills were members of a secret

prison gang. See id. Although Abel did not testify, the Court

ruled that the government's witness could testify about the

gang's tenets and that such evidence was admissible to impeach

Mills and to show his bias. See id. at 49.

Other jurisdictions addressing the admissibility of evidence

of gang membership or gang activity make a threshold

determination whether such evidence is relevant to an issue in

the case. 1 If the evidence is deemed relevant, the trial court
1
Most of the cases cited in this discussion suggest that the
gang-related evidence was admitted in the prosecution's

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must decide whether its admission constitutes unfair prejudice. 2

case-in-chief. In such cases, the prosecution was required to
lay a proper foundation by closely linking the gang-related
evidence to the charged offense. Cf. Guill, 255 Va. at 140, 495
S.E.2d at 492 (requiring causal relation or logical connection).
2
See, e.g., Siler v. State, 705 So. 2d 552, 556-59 (Ala.
Crim. App. 1997) (admission of past gang-related activity and
rivalry was directly relevant to show motive and state of mind;
due to its direct relevance, it was not overly prejudicial);
State v. Romero, 870 P.2d 1141, 1147-48 (Ariz. Ct. App. 1993)
(evidence of defendant's gang affiliation established a link
between the crime and gang rivalry and was relevant to establish
motive; trial court properly balanced probative value with
prejudice); People v. Williams, 940 P.2d 710, 738 (Cal. 1997) (in
gang-related case, gang evidence is admissible if relevant to
motive or identity, so long as probative value not outweighed by
prejudicial effect), cert. denied, 118 S. Ct. 1169 (1998); State
v. Taylor, 687 A.2d 489, 500 (Conn. 1996) (finding evidence of
gang affiliation relevant and not overly prejudicial to establish
motive for murder), cert. denied, 117 S. Ct. 2515 (1997); People
v. Knox, 608 N.E.2d 659, 663 (Ill. Ct. App. 1993) (explaining
that gang-related evidence "is only admissible where there is
sufficient proof that gang membership or activity is related to
the crime charged"; holding that gang-related evidence was
sufficiently linked to offense and was, therefore, admissible to
provide motive for otherwise inexplicable murder); State v.
Toney, 862 P.2d 350, 352-53 (Kan. 1993) (evidence of defendant's
gang membership and expert testimony about gang conduct was
relevant and admissible in government's case-in-chief to show
motive for murder); Hoops v. State, 681 So. 2d 521, 529-31 (Miss.
1996) (upholding admission of evidence of defendant's involvement
in gang that had rivalry with victim's gang to show motive for
otherwise unexplained assault; finding that probative value
outweighed danger of unfair prejudice); Tinch v. State, 946 P.2d
1061, 1064-65 (Nev. 1997) (upholding admissibility of evidence of
gang affiliation where it was relevant to charged offense and
probative value was not substantially outweighed by danger of
unfair prejudice; "conclud[ing] that the [gang-related] evidence
was relevant to the gang enhancement charge and could show
motive"); People v. Connally, 481 N.Y.S.2d 432, 433 (N.Y. App.
Div. 1984) (limited evidence of gang affiliation was relevant and
admissible to prove motive and intent); State v. Campbell, 901
P.2d 1050 (Wash. Ct. App. 1995) (holding that evidence of
defendant's gang affiliation was sufficiently linked with crime
and was probative to show motive and premeditation, supporting
state's theory of case; trial judge carefully limited evidence so
as to avoid undue prejudice).

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 Here, the gang-related evidence was relevant to establish a

motive for the murder and was probative of appellant's intent.

Moreover, the record fails to show that the trial judge abused

his discretion in finding that its probative value was outweighed

by any incidental prejudice.

B. EXPERT TESTIMONY ABOUT GANGS

"Expert testimony is appropriate to assist triers of fact in

those areas where a person of normal intelligence and experience

cannot make a competent decision." Swiney v. Overby, 237 Va.

231, 233, 377 S.E.2d 372, 374 (1989). The expert testimony must

be relevant, and the trial judge must determine whether the

subject matter of the testimony is beyond a lay person's common

knowledge and whether it will assist the trier of fact in

understanding the evidence or in determining a fact in issue.

See Farley v. Commonwealth, 20 Va. App. 495, 498-99, 458 S.E.2d

310, 312 (1995). "The admission of expert testimony is committed

to the sound discretion of the trial judge, and we will reverse a

trial court's decision only where that court has abused its

discretion." Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,

178 (1992).

Despite our extensive body of law regarding expert

witnesses, whether an expert can provide testimony about gang

culture and characteristics is an issue of first impression in

Virginia. Therefore, we look to other jurisdictions for

guidance.
A witness qualifies as an expert if "because

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 of his skill, training, or experience, he is
better able to form a more accurate opinion
as to the matter under consideration than is
an ordinary person." . . . [S]pecialized
formal training [i]s unnecessary, . . . [and]
experience alone [can] qualify one as an
expert, . . . . [A]s long as the testimony
is based upon information of the "type
reasonably relied upon by experts in the
field," it would be proper to admit it.

People v. Ayala, 567 N.E.2d 450, 455 (Ill. Ct. App. 1990)

(holding that police officer with two years experience

investigating gang-related criminal activities "possessed a

greater knowledge of gang activity than would be available to the

average person") (citations omitted).
"An expert need not acquire his [or her] knowledge through

personal experience" as long as he or she possesses "specialized

knowledge [that] will assist the trier of fact to understand the

evidence or to determine a fact in issue." State v. Campbell,

901 P.2d 1050, 1056 (Wash. Ct. App. 1995) (allowing expert

testimony of gang terminology, gang interactions with other

gangs, and types of activities in which gangs involved to

establish premeditation, intent and motive at murder trial). See

also People v. Williams, 940 P.2d 710, 739 (Cal. 1997) (upholding

qualification of police officers as gang experts and admission of

their testimony regarding gang behavior and motives); People v.

Gardeley, 927 P.2d 713, 720-21 (Cal. 1996) (subject matter of the

culture and habits of criminal street-gangs was sufficiently

beyond common experience that witness with special knowledge or

matter in question may qualify as expert), cert. denied, 118

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S. Ct. 148 (1997).

Detective Kozich had been a police officer since 1979. At

the time of trial, he was "detailed to the ATF Gang Task Force in

Northern Virginia." He received "over 300 hours of training

involving drug gangs or drug investigations and much of that has

to do with gang investigations." In addition, Kozich received

"approximately 200 hours of gang-related training" conducted by

"various experts from Los Angeles, New York, Chicago, DEA, FBI,

[and] INS." Kozich explained that he teaches classes and

conducts lectures about gangs for numerous law enforcement

organizations and civic groups. He testified that, "on a

national level, I get information bulletins from virtually all

over the country."
On a more regional level, [he is] a member of
a group called MARGIN, which stands for Metro
Area Regional Gang Investigative Network.
That's a group of investigators from the
Washington Metropolitan area. There are
approximately 52 agencies which range from
Baltimore down to Stafford County. And
[they] meet once a month, and [they] exchange
information on gangs because gangs very often
cross jurisdictional boundaries.

Kozich has conducted surveillance of local gangs, and he

regularly receives reports from the local police regarding gang

activity. He explained that he was familiar with appellant's

gang and with the victim's gang.

Kozich described the two kinds of gangs which exist in the

area. According to Kozich, "[t]here is either a gain- or

economic- or asset-type of gang or the other type would be a

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turf-oriented gang." Kozich was familiar with the gang of which

appellant was a member, the Tiny Rascals Gang ("TRG"), and the

gang of which the victim was a member, Mal Sal Latruca 3 ("MS").

Kozich characterized both gangs as "turf-oriented" gangs. He

explained: "[T]he individuals that are involved in these gangs

are not involved for the purpose of profit like a, for example, a

drug gang would be. These individuals are there often for self

identity, and, . . . sometimes the gang becomes a sort of

substitute family for the individual members." Kozich further

explained that, because a "turf-oriented" gang's "motive is not

profit, very often . . . the leader is the person who is most

notorious or the most violent or the person who has the gun at

the time."
On cross-examination, Kozich agreed that the victim lived in

the area where the shooting occurred and that appellant and his

friends were likely on "turf" claimed by the MS gang, of which

the victim was a member. Kozich also agreed that when a gang

member approaches someone with his hand concealed, "[i]t could

mean that he's armed."

Based on Kozich's extensive experience with and knowledge of

gangs, he was qualified to testify as an expert. Because the

subject matter was beyond the common knowledge and experience of

ordinary jurors, the trial judge did not abuse his discretion in
3
In the transcript of the hearing on the motion in limine,
the prosecutor referred to the victim's gang as "Mara Salva
Chuka."

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allowing Kozich to testify about gang culture in order to show

motive and intent and to rebut appellant's claim of self-defense.

Moreover, the evidence showed that the victim was a member of

another gang that occupied the area where the shooting occurred.

That evidence was beneficial to appellant and supported his

theory that the victim was the aggressor, thus belying the

prejudice that appellant claims he suffered.

At trial, Kozich was asked to define a gang. He explained:
The way we define a gang in Arlington County
is when a group meets a certain criteria.
And those -- that criteria is five or more
people, they have a unique name, they display
symbols, which is usually in the form of hand
signs or tatoos or the things they use in
graffiti, they claim some kind of turf, they
associate on a regular basis, and most
importantly they're involved in some sort of
criminal or illegal activity.

Defense counsel objected, the jury was excused, and

appellant moved for a mistrial. The trial judge refused to grant

a mistrial but admonished counsel to "[c]lear that up" lest he

"instruct them." After the jury returned, the prosecutor asked

Kozich, "[I]s it fair to say that not everyone in a gang commits

a crime?" Kozich agreed.

Appellant failed to argue on appeal that the trial judge

erred in refusing to grant a mistrial. Instead, he contends

Kozich's statement further prejudiced him. Appellant conceded in

his brief that "the Trial Court gave a curative instruction," but

he contends that "it is impossible to expect ordinary persons to

completely erase what they have just heard." In a written

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stipulation received by the jury, appellant admitted to a prior

conviction for carrying a concealed weapon. Moreover, two of

appellant's witnesses, Joy Nouanelady and Marcus Lee, admitted

having prior convictions that were proper subjects of

impeachment. Because of the prompt corrective action taken

regarding Kozich's statement, and in light of the fact that the

jury was aware of criminal convictions involving appellant and

two of his witnesses, we find no additional, excessive prejudice

requiring reversal.
Accordingly, the convictions appealed from are affirmed.

Affirmed.

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