IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-029
Filing Date: May 29, 2009
Docket No. 29,869
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ORLANDO TORREZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Peggy J. Nelson, District Judge
Aarons Law Firm, P.C.
Stephen D. Aarons
Santa Fe, NM
for Appellant
Gary K. King, Attorney General
Max Shepherd, Assistant Attorney General
Santa Fe, NM
for Appellee
OPINION
CHÁVEZ, Chief Justice.
{1} Defendant Orlando Torrez directly appeals his convictions of first degree murder,
shooting at a dwelling or occupied building resulting in injury, and tampering with evidence;
charges arising from the shooting death of Danica Concha at a Halloween party in 2003.
Defendant raises four arguments on appeal: (1) the trial court erred in not granting a mistrial
after the jury expressed fears of gang retaliation; (2) the trial court erred in admitting the
testimony of an expert witness on the subject of gang-related law enforcement and gang
culture; (3) his convictions for felony murder and shooting at a dwelling house resulting in
1
injury violated his constitutional protection against double jeopardy; and (4) cumulative
error. We hold that the trial court erred in admitting the testimony of the gang expert, vacate
Defendant’s convictions, and remand for a new trial.
I. BACKGROUND
{2} On Halloween night in 2003, Defendant, his girlfriend, Samantha Sanchez, his friend,
Alfredo Sanchez, and three others went to a house party near Taos, New Mexico. During
the party, two unidentified men confronted Defendant and threatened to kill him and his
family because Defendant had killed a young man named Jeremy a few years earlier.1
Defendant and his companions left the house and the two unknown men, armed with guns,
approached them as they walked toward Defendant’s vehicle. The men again threatened the
lives of Defendant and his family and instructed him and his friends to leave or they would
be killed. Defendant and his companions got into his car, and while they were driving away,
the two men fired gunshots at Defendant’s vehicle, hitting it at least twice. No one was
injured.
{3} Defendant and his companions returned to his house. Defendant testified that he was
scared that the assailants would come by his house and shoot at them again because they had
told him they knew where he lived. He stated that he wanted to go back to the party and
confront the men rather than take the chance that they might come to his house and hurt his
pregnant girlfriend or unborn child. Defendant armed himself with a 9 millimeter handgun,
and he and Alfredo then gathered five of Defendant’s firearms–a 12-gauge shotgun, a 16-
gauge shotgun, a .22 caliber rifle, a .303 caliber rifle, and a .270 caliber rifle–and loaded
them into Defendant’s car. Defendant and Alfredo returned to the party in Defendant’s car
with the firearms.
{4} At trial, Defendant described the following events after he and Alfredo returned to
the party. He parked the car near the edge of the property and, having noticed one of the two
men who had threatened him earlier standing outside the house, Defendant approached the
man. While talking to him, Defendant was hit on the head from behind, fell to the ground,
and was kicked. He reached for the 9 millimeter handgun that he had stuffed in his
waistband, but it was missing. After getting back on his feet, Defendant was running to his
car when he heard gunshots fired from behind him. Alfredo testified that when he saw
Defendant running back toward the car, Defendant was unarmed and there was gunfire
coming from the house. However, Alfredo could not state with certainty that Defendant had
not been the first to shoot.
1
As a minor, Defendant apparently pled no contest to the involuntary manslaughter
of Jeremy and spent two years in reform school. Although the facts supporting Defendant’s
prior homicide conviction were not before the jury and are not part of the record, Defendant
and his grandmother both testified that they had lived in fear because of Defendant’s
involvement in Jeremy’s death.
2
{5} Once back at his car, Defendant testified that he grabbed the .303 caliber rifle and
fired toward the house where he could see sparks of light that looked like gunfire. He stated
that he heard more gunfire from a different area of the yard, grabbed the 12-gauge shotgun
from his car, and then fired in the direction of those shots. Alfredo testified that he fired the
12-gauge shotgun, implying that Defendant did not. No one admitted to having fired the
.270 caliber rifle, but casings from that gun were found at the scene.
{6} At the time of the shooting, Naarah Holgate and Danica Concha were in a bathroom
inside the house. Naarah testified that she heard what she thought were fireworks and then
saw Danica collapse in the bathtub. An expert testified that Danica had been shot in the
chest and killed with a bullet that was consistent with being fired from a center-fire, high
velocity rifle. However, the expert could not say which weapon fired the fatal bullet.
{7} The jury convicted Defendant of first degree murder, shooting at a dwelling resulting
in injury, and tampering with evidence. Defendant raises four issues on appeal: (1) jury
bias; (2) improper expert testimony; (3) double jeopardy; and (4) cumulative error. Because
we grant Defendant’s request for a new trial on the basis that the trial court erred in
admitting the expert’s testimony, we do not address Defendant’s other claims of error. Any
possible error associated with juror bias will be corrected when a new jury is empaneled at
Defendant’s new trial. Because we vacate his convictions, Defendant’s constitutional
protection against double jeopardy has not been impaired. Finally, we conclude that his
cumulative error argument is without merit. Therefore, we address only the error associated
with the admission of the expert’s testimony.
II. DISCUSSION
{8} At trial, the State called Detective Robert Martinez as an expert witness to testify
about “gang-related law enforcement and gang culture.” The trial court admitted his
testimony over Defendant’s objections. On appeal, Defendant raises four arguments,
alleging that the trial court’s admission of Detective Martinez’s expert testimony was in
error. First, he argues that Detective Martinez was not qualified to be an expert on the
behaviors of Taos gang members. Second, he contends that the expert’s testimony was the
equivalent of “junk science,” amounting to nothing more than a prediction of Defendant’s
behavior on the basis of his association with a gang. Third, Defendant argues that evidence
of Defendant’s association with gangs was impermissible propensity evidence that
encouraged the jury to conclude that he acted in conformity with the actions of members of
criminal street gangs. Finally, Defendant asserts that the expert’s testimony was irrelevant
and unfairly prejudicial because there was no evidence presented at trial that this shooting
was gang-related. The State contends that Detective Martinez was qualified to give expert
testimony on the subject of the behaviors of gang members and that the evidence of
Defendant’s affiliation with gangs was allowable to show Defendant’s motive or intent,
which the parties agree was the ultimate issue in this case. The State also argues that the
expert’s testimony was neither irrelevant nor unfairly prejudicial because “the record clearly
establishes that gang membership and gang affiliation permeated this entire trial.”
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{9} We review the trial court’s admission of expert testimony for an abuse of discretion.
State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993). However, our role is not
to simply “rubber stamp” the trial court’s determination. Id. at 170, 861 P.2d at 206. The
abuse of discretion standard “should not prevent an appellate court from conducting a
meaningful analysis of the admission [of] scientific testimony to ensure that the trial judge’s
decision was in accordance with the Rules of Evidence and the evidence in the case.” Id.
We agree with the State that the trial court did not err in qualifying Detective Martinez as
an expert on the subject of gang-related law enforcement and gang culture. We also agree
that the expert’s testimony was not impermissible propensity evidence because it was offered
to prove Defendant’s motive. However, we conclude that the danger that the expert’s
testimony was unfairly prejudicial to Defendant substantially outweighed its probative value.
Therefore, we vacate Defendant’s convictions and remand for a new trial.
A. THE PURPOSE OF THE EXPERT’S TESTIMONY
{10} In Alberico, we stated that “the proper initial inquiry for the admissibility of expert
opinion testimony . . . is [to determine] the purpose for which it is being offered.” 116 N.M.
at 172, 861 P.2d at 208. The purpose of the testimony guides our inquiry into whether the
expert was qualified to give an opinion on the subject, as well as our determination of
whether the testimony was relevant, probative, and not unfairly prejudicial. Thus, we begin
our inquiry by determining what the State sought to prove with Detective Martinez’s
testimony.
{11} In our review of the record, we discern two distinct purposes of Detective Martinez’s
testimony: (1) to prove that Defendant was a member of the Barrio Small Town (BST)
criminal street gang and (2) to explain Defendant’s motive for returning to the party and
shooting at the house. Prior to Detective Martinez’s testimony, evidence had been
introduced that Defendant had a tattoo that identified him as a BST member. Detective
Martinez corroborated this testimony when he testified that BST was a “homegrown” gang
in Taos and that the letters “BST” identified BST gang members. He emphasized that
tattoos are prevalent in gang society and that tattoos of gang signs, symbols, and
abbreviations are identifiers of who is a member of a particular gang. Thus, Detective
Martinez offered circumstantial evidence that Defendant was a member of BST. However,
no direct evidence was presented at trial that Defendant was a member of BST or any other
gang at the time of the shooting.
{12} The other, more significant purpose of Detective Martinez’s testimony was to refute
Defendant’s claim of self-defense by offering another explanation of Defendant’s motive for
shooting at the house. The expert’s testimony was significant because Defendant’s intent
was the primary focus of the parties’ dispute. Defendant admitted that he shot at the house
with a gun that could have fired the fatal bullet. However, he asked the jury to find that he
did so in self-defense, in response to being shot at first by unidentified assailants. In contrast
with Detective Martinez’s testimony, the State asked the jury to conclude that Defendant,
an alleged gang member, returned to the party that night seeking revenge or retribution for
4
being threatened, shot at, and otherwise disrespected.
{13} Detective Martinez testified that respect is the most important value in gang culture.
He testified that gang members gain respect through fear, intimidation, violence, and by
controlling the drug trafficking trade. He also stated that gang members are governed by
“the code of the street” and are motivated by “retribution,” “an eye for an eye,” with “[n]o
assault go[ing] unanswered.” He stated that in his expert opinion, once a gang member has
been disrespected, he or she must retaliate with “retribution that . . . is always done through
violence.”
{14} Detective Martinez explained that gang members can be disrespected in a number
of ways. For example, showing a gang-specific tattoo in public or to members of another
gang would be disrespectful, as would “mad-dogging,” a form of confrontation where two
individuals aggressively stare at one another. Spoken threats are another form of disrespect,
as are threats to a person’s life and the destruction of a person’s property. Detective
Martinez further explained that disrespecting a gang member in front of other people
demands retribution, especially if the member is disrespected in front of members of his or
her own gang. Additionally, Detective Martinez repeatedly referred to gangs as “criminal,”
explaining that
if somebody is making threats to the well-being of another or to their life,
some course of action must be taken [by] the person who is being threatened,
not only because he must protect himself from becoming a victim from the
perpetrator, but also because other people know about this. And if you don’t
go out and take care of business, like he is supposed to be under this
unwritten code that the criminal gang adheres to, then he shows weakness on
his part.
With these purposes for the expert’s testimony in mind, we now turn to Defendant’s
arguments on appeal.
B. THE EXPERT WAS QUALIFIED
{15} Under Rule 11-702 NMRA, “a witness must qualify as an expert in the field for
which his or her testimony is offered before such testimony is admissible.” State v. Downey,
2008-NMSC-061, ¶ 26, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and citation
omitted). Rule 11-702 permits a witness to be qualified based on his or her knowledge, skill,
experience, training, or education, “but no set criteria can be laid down to test such
qualifications.” Id. (internal quotation marks and citation omitted). We have emphasized
the use of the disjunctive “or” in Rule 11-702 in recognizing the wide discretion given the
trial court in qualifying experts to testify. See, e.g., State v. McDonald, 1998-NMSC-034,
¶ 20, 126 N.M. 44, 966 P.2d 752.
{16} The trial court qualified Detective Martinez to testify as an expert witness with
5
respect to gang-related law enforcement and gang culture on the basis of his knowledge,
skill, and experience in those fields. Defendant argues that Detective Martinez was not
qualified to be an expert on these subjects because he (1) did not have personal knowledge
of Taos area gangs; (2) did not have a college degree; (3) had not previously testified as an
expert before a jury; (4) had never worked undercover in a gang unit; (5) had not published
any materials that were subject to peer review; and (6) could not point to any recognized
field of study that sought to determine why gang members assault one another. Defendant
also argues that Detective Martinez was not qualified to predict the human behavior of gang
members. The State contends that Detective Martinez was qualified to give expert testimony
on gang culture and gang-related law enforcement because, among his other qualifications,
he had thirteen years’ experience as a police officer working with gang units, had spent
approximately 2,000 hours instructing other law enforcement personnel about gang culture
and investigation, and had written the Albuquerque, Bernalillo County Street Gang Manual.
{17} In addition to the expert’s qualifications upon which the State relies, the record
reflects that Detective Martinez also possessed the following qualifications at the time of
Defendant’s trial. As an investigating officer with the Bernalillo County Sheriff
Department’s gang unit, it was his responsibility to certify gangs as criminal, identify
members of those gangs, and collect intelligence on and conduct investigations of those
gangs and individuals. He had been certified by the New Mexico Gang Task Force and the
Bernalillo County Sheriff’s Department, as well as a private entity that certifies police
officers who have completed its gang specialization course. His specialist certification was
valid with the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
In addition to authoring the Albuquerque, Bernalillo County Street Gang Manual, he had
also authored training programs on gang-related law enforcement and was certified as an
instructor with the New Mexico Law Enforcement Training Academy. Finally, through his
work, he had become familiar with Taos area gangs.
{18} Based on these qualifications, we cannot say that the trial court abused its discretion
in qualifying Detective Martinez as an expert on gang-related law enforcement and gang
culture. Rule 11-702 expressly allows experts to be qualified based on their skills and
experience, and Detective Martinez’s experience with gangs was sufficient to allow his
testimony on this subject. That Detective Martinez did not have a college degree, had not
previously testified as an expert before a jury, and had never worked undercover in a gang
unit does not nullify the trial court’s determination that his experience in working with
criminal gangs in New Mexico was sufficient for him to testify as an expert on gang culture
and the behaviors of gang members. Furthermore, we note that the jury was free to weigh
every aspect of Detective Martinez’s qualifications in their evaluation of his testimony, and
any perceived deficiencies in his qualifications were “relevant to the weight accorded by the
jury to [the] testimony and not to the testimony’s admissibility.” McDonald,
1998-NMSC-034, ¶ 21 (internal quotation marks and citation omitted). Therefore, the trial
court did not err in qualifying Detective Martinez as an expert.
C. THE EXPERT’S TESTIMONY WAS BASED ON HIS SPECIALIZED
6
KNOWLEDGE
{19} Although an expert may be qualified to give an opinion on a given subject, the
expert’s testimony may nevertheless be inadmissible under Rule 11-702, which requires that
the testimony assist the trier of fact and be based on “scientific, technical or other specialized
knowledge.” See Alberico, 116 N.M. at 166, 861 P.2d at 202 (“We discern three
prerequisites in Rule [11-]702 for the admission of expert opinion testimony. The first
requirement is that the expert be qualified. . . . The second consideration . . . is whether [the
testimony] will assist the trier of fact. . . . The third requirement . . . is that an expert may
testify only as to ‘scientific, technical or other specialized knowledge.’”). We have already
addressed the first of these three inquiries, whether the expert is qualified. We do not
address whether the expert’s testimony assisted the trier of fact because that argument was
not raised by Defendant. In light of Defendant’s remaining arguments, we now turn to
whether Detective Martinez’s testimony was based on his specialized knowledge.
{20} Defendant argues that the trial court should have excluded Detective Martinez’s
testimony because it amounted to nothing more than “junk science” and an unscientific
attempt to predict the behavior of gang members. Defendant also argues that the reliability
of Detective Martinez’s methodology could not be tested because there is no recognized field
of scientific study that seeks to explain in a scientific manner why gang members assault one
another. To the extent that Defendant is arguing that Detective Martinez’s expert testimony
should have been excluded because it is not the subject of a valid science and there are no
means to test the reliability of his results, we disagree. Defendant confuses the standards
applicable to determining the admissibility of expert scientific testimony with those for
admitting expert testimony based on the specialized knowledge of the expert witness.
{21} The requirements that scientific expert testimony be “grounded in valid, objective
science” and “reliable enough to prove what it purports to prove,” Alberico, 116 N.M. at
168, 861 P.2d at 204, are inapplicable to expert testimony that is based on the expert’s
specialized knowledge. See State v. Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d
20 (“[A]pplication of the Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)] factors is unwarranted in cases where expert testimony is based solely upon
experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th
Cir. 1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir. 2000) (“The
Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable
to [gang expert] testimony, whose reliability depends heavily on the knowledge and
experience of the expert, rather than the methodology or theory behind it.”). Nevertheless,
“[i]t is the duty of our courts . . . to determine initially whether expert testimony is competent
under Rule 702 . . . .” Alberico, 116 N.M. at 164, 861 P.2d at 200. In other words, even
with non-scientific expert testimony, the trial court must exercise its gate-keeping function
and ensure that the expert’s testimony is reliable. However, when testing the reliability of
non-scientific expert testimony, rather than testing an expert’s scientific methodology as
required under Daubert and Alberico, the court must evaluate a non-scientific expert’s
personal knowledge and experience to determine whether the expert’s conclusions on a
7
given subject may be trusted. See Hankey, 203 F.3d at 1168-69.
{22} While this inquiry is similar to a determination of whether an expert is qualified to
opine on a given subject, the two inquiries are not identical. The first inquiry, testing an
expert’s qualifications, requires that the trial court determine whether an expert’s skills,
experience, training, or education qualify him or her in the relevant subject. Although the
second inquiry uses these same factors, the court uses them to test the validity of the expert’s
conclusions. In this way, an expert may be qualified to offer opinions on a subject, but those
opinions may nevertheless be unreliable in that they do not prove what they purport to prove.
We need not repeat Detective Martinez’s qualifications here. We have already concluded
that the trial court did not err in qualifying him as an expert on the subject of “gang-related
law enforcement and gang culture.” However, our inquiry does not stop with a
determination of his specialized knowledge on these subjects. We must also determine
whether his knowledge of gangs generally permitted him to offer an expert opinion regarding
the motives of individual gang members.
{23} It is widely held that expert opinion testimony is admissible to prove motive or intent
of a gang member, subject to the balancing requirements of Rule 11-403 NMRA. See State
v. Torres, 874 A.2d 1084, 1093-95 (N.J. 2005) (listing cases admitting expert testimony on
gang issues to prove the defendant’s motive). Indeed, this Court has held that Rule 11-
404(B) NMRA permits an expert to testify regarding a defendant’s affiliation with a gang,
as well as gang-specific rituals and procedures, “to show Defendant’s alleged motive (to rise
up in the ranks of the gang by performing a hit on its behalf) and intent to murder the
victims.” State v. Nieto, 2000-NMSC-031, ¶ 25, 129 N.M. 688, 12 P.3d 442. Here,
Detective Martinez testified from his personal experience with gangs that gang members
retaliate in violent ways when disrespected. He testified that being disrespected can occur
in any number of ways, some of which could have been applicable in Defendant’s situation
if sufficient evidence of Defendant’s gang affiliation had been presented to the jury. Based
on his experience and knowledge, the trial court did not err in concluding that Detective
Martinez’s opinions were reliable and that his testimony regarding the motives of gang
members proved what it was offered to prove.
{24} Despite the admissibility of evidence of a defendant’s “other crimes, wrongs or acts”
to prove his or her motive or intent under Rule 11-404(B), Defendant encourages us to
conclude that the expert’s testimony was impermissible propensity evidence that was offered
to show his conformity with the criminal actions of gang members in general and of BST
members in particular. “To be sure, evidence of gang affiliation could be used improperly
as a backdoor means of introducing character evidence by associating the defendant with the
gang and describing the gang’s bad acts.” Nieto, 2000-NMSC-031, ¶ 25. However, Rule
11-404(B) specifically allows evidence of “other crimes, wrongs or acts” to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident.” Defendant does not dispute that the expert’s testimony was offered to rebut his
claim of self-defense, and therefore went to his motive for shooting at the house. In fact,
Defendant acknowledged at trial that “the only battleground here is [Defendant’s] intent.”
8
Given Defendant’s admission at trial that he fired a high-powered rifle that could have killed
Danica, we agree that the primary issue the jury needed to resolve was his motive for doing
so. Therefore, like the defendant in Nieto, the expert’s testimony was not impermissible
propensity evidence because it was offered to establish Defendant’s motive.
{25} Defendant attempts to distinguish Nieto on the basis that the expert in Nieto was
allowed to testify only regarding the defendant’s affiliation with a particular gang and that
gang’s specific rituals, procedures, clothing, and symbolism. See id. ¶ 25 (stating that the
expert testified regarding the defendant’s “affiliation with the 18th Street Gang and the
specific rituals and procedures of that gang”). We understand Defendant to be arguing that
Detective Martinez’s expert testimony should have been excluded as impermissible character
evidence under Rule 11-404 because he did not base his testimony on the specific behaviors
and rituals of BST, the gang to which Defendant allegedly belonged at the time of the
shooting. We agree with Defendant that Detective Martinez’s testimony should have been
grounded in facts specific to Defendant’s case and that he effectively concluded that
Defendant was motivated by the code of conduct of street gangs without sufficient additional
evidence that any of the key players were gang members or that the shooting was in any way
gang-related. However, rather than distinguishing Nieto on Rule 11-404 grounds, we believe
our analysis is better suited to balancing the testimony’s probative value against the danger
of unfair prejudice to Defendant under Rule 11-403.
D. THE EXPERT’S TESTIMONY WAS UNFAIRLY PREJUDICIAL
{26} Although gang expert testimony may be allowable to prove motive under Rule 11-
404(B), it must still satisfy the requirements of Rule 11-403, which mandates exclusion “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.” See Nieto, 2000-NMSC-031, ¶ 26
(subjecting gang expert’s testimony admitted to prove motive to Rule 11-403 balancing).
Here, the probative value of Detective Martinez’s testimony was outweighed by the danger
of unfair prejudice because there was no evidence presented at trial that Defendant was a
gang member at the time of the shooting, the party was a “gang party,” or the shooting was
in any way gang-related.
{27} “[T]he allegation that a defendant is in a gang ought not serve as a justification for
extensive expert testimony regarding criminal gangs.” State v. DeShay, 669 N.W.2d 878,
887 (Minn. 2003); see also Utz v. Commonwealth, 505 S.E.2d 380, 385 (Va. Ct. App. 1998)
(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” (citation omitted)). Thus,
“[t]he district court should scrutinize proffered gang expert testimony, preferably outside the
presence of the jury, and exclude it where irrelevant, confusing, or otherwise unhelpful.”
DeShay, 669 N.W.2d at 888 (internal quotation marks and citation omitted). Gang expert
testimony “must be carefully monitored by the court so that the testimony will not unduly
9
influence the jury or dissuade it from exercising its independent judgment.” Id.
{28} Here, the probative value of Detective Martinez’s testimony would have been
significant if the State had offered other evidence that the shooting was gang-related. The
purpose of the expert’s testimony was to prove that Defendant returned to the party with the
intention of shooting at the house in retribution for having been disrespected. However, the
probative value of this testimony was contingent upon the State offering additional evidence
that Defendant was in fact a gang member at the time of the shooting or that the shooting
was somehow related to gang rituals, rivalries, procedures, or other aspects of gang culture.
Absent corroborative evidence that the incident was influenced by a gang’s code of conduct
or other criminal aspects of gang culture, the risk that Defendant was convicted because he
was, or at one time had been, a member of a gang is too great to allow the evidence to be put
before the jury. See State v. Cox, 908 P.2d 603, 609 (Kan. 1995) (“Gang evidence is only
admissible where there is sufficient proof that membership or activity is related to the crime
charged.”).
{29} At Defendant’s trial, there was no evidence presented supporting the State’s theory
that Defendant was a member of BST or any other gang at the time of the shooting.
Evidence was presented that on the night of the shooting, Defendant admitted to having been
in BST at one time, an admission he confirmed with his testimony. The State also presented
evidence of Defendant’s BST tattoo. However, the State never connected that tattoo with
his continued membership in BST, and the State did not present any evidence that Defendant
was a member of another gang at the time of the shooting. Thus, even considering Detective
Martinez’s testimony, the State produced no evidence of Defendant’s gang membership at
the time he shot at the house.
{30} In addition, the State produced no evidence that the Halloween party was a “gang
party,” such that the shooting was somehow connected to gang rivalry or other gang rituals
or procedures. Indeed, testimony was presented that while members of one or more
unidentified gangs were at the party, it was not a “gang party.” Testimony was also given
that the shooting itself was not gang-related. Furthermore, the men who threatened and shot
at Defendant and his companions were not identified, and their membership in any gang was
unknown. Similarly, the party’s hosts were never identified as members of BST or any other
gang. Finally, the State’s expert did not testify that the shooting itself was related to gang
rivalry or other gang rituals.
{31} Because no evidence was presented that Defendant was a member of any gang at the
time of the shooting, the party was a “gang party,” or the shooting was gang-related,
Detective Martinez’s testimony regarding Defendant’s motive was largely, if not entirely,
irrelevant. See, e.g., Cox, 908 P.2d at 611 (holding that because “[n]o evidence was
introduced . . . to suggest that the motive for the killing was gang related . . .[,] the trial court
abused its discretion by admitting the gang expert testimony”). While Detective Martinez’s
testimony was relevant to show that Defendant was a member of BST, his testimony
regarding Defendant’s motive was irrelevant because the State offered no evidence that
10
Defendant was a gang member at the time of the shooting. In the absence of supporting
evidence, the expert’s testimony unfairly prejudiced Defendant by asking the jury to find that
Defendant was a member of a gang and to conclude that he acted in accordance with the
gang’s code of conduct.
{32} Evidence of a defendant’s gang affiliation “is likely to be damaging to a defendant
in the eyes of the jury” because “[g]angs generally arouse negative connotations and often
invoke images of criminal activity and deviant behavior.” United States v. Irvin, 87 F.3d
860, 864, 865 (7th Cir. 1996) (internal quotation marks and citation omitted). “There is
therefore always the possibility that a jury will attach a propensity for committing crimes to
defendants who are affiliated with gangs or that a jury’s negative feelings toward gangs will
influence its verdict.” Id. at 865. In Defendant’s case, we are especially wary of the threat
of guilt by association because Defendant’s intent was the primary issue to be resolved at
trial. See State v. Phillips, 2000-NMCA-028, ¶ 29, 128 N.M. 777, 999 P.2d 421 (“[A] real
threat of guilt by association may exist where the defendant’s gang membership is the entire
theme of the trial.” (internal quotation marks and citation omitted)). As a result, we
conclude that the trial court abused its discretion in admitting Detective Martinez’s expert
testimony on gang culture and gang-related law enforcement. See State v. Chamberlain, 112
N.M. 723, 726, 819 P.2d 673, 676 (1991) (“[I]n applying Rule [11-]403, . . . [e]vidence
should be excluded if it is calculated to arouse the prejudices and passions of the jury and
[is] not reasonably relevant to the issues of the case.” (internal quotation marks and citation
omitted)).
E. THE EXPERT’S TESTIMONY WAS NOT HARMLESS
{33} Having concluded that the trial court erred in admitting Detective Martinez’s
testimony, we must now determine if that error was harmless. See, e.g., Casaus v. State, 94
N.M. 58, 59, 607 P.2d 596, 597 (1980) (concluding that evidence admitted improperly under
the predecessor to Rule 11-403 was not harmless error). To determine whether a non-
constitutional error was harmless, we must assess whether there is no reasonable probability
that the error affected the verdict. State v. Barr, No. 30,191, slip op. at ¶ 54 (N.M. Sup. Ct.
May 22, 2009). In this case, we have no doubt that there is a reasonable probability that the
expert’s testimony contributed to Defendant’s conviction. The expert testified that
Defendant was a member of the BST criminal street gang, that the events of the night of the
shooting were such that any gang member in Defendant’s shoes would have been
disrespected, and that gang members always retaliate against those who disrespect them with
violence. Because Defendant’s motive for shooting at the house was the primary issue
before the jury and the expert’s testimony was the linchpin in the State’s evidence rebutting
Defendant’s claim of self-defense, the error of admitting Detective Martinez’s testimony was
not harmless.
III. CONCLUSION
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{34} For the reasons stated above, we hold that the trial court erred in admitting Detective
Martinez’s expert testimony on gang culture and gang-related law enforcement. We
therefore vacate Defendant’s convictions for first degree murder, shooting at a dwelling
resulting in injury, and tampering with evidence, and remand to the district court for a new
trial.
{35} IT IS SO ORDERED.
____________________________________
EDWARD L. CHÁVEZ, Chief Justice
WE CONCUR:
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
CHARLES W. DANIELS, Justice
Topic Index for State v. Orlando Torrez, No. 29,869
AE APPEAL AND ERROR
AE-HE Harmless Error
CL CRIMINAL LAW
CL-HO Homicide
CL-SD Self-defense
CA CRIMINAL PROCEDURE
CA-EX Expert Witness
EV EVIDENCE
EV-AE Admissibility of Evidence
EV-EW Expert Witness
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EV-ON Opinion
EV-PJ Prejudicial Evidence
EV-PB Probative Value vs. Prejudicial Effect
EV-RC Relevancy, Materiality, and Competency
EV-SC Scientific Evidence & Daubert Standard
13