EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 19, 2015

Battle Creek Battle: Court of Appeals of Michigan Reverses Murder Conviction Based on Prejudicial Gang Testimony by Expert

According to an article in the Battle Creek Enquirer,

A Battle Creek murder conviction, overturned last month, will be appealed.

Calhoun County Prosecutor David Gilbert said Friday his office is preparing an application to appeal the case of Kaleb Hampton to the Michigan Supreme Court.

Why was the conviction reversed? According to the article.

in a 16-page opinion in December a three-judge panel of the Michigan Court of Appeals agreed that testimony about gang membership and Hampton’s alleged membership tainted the jury and exceeded what was permissible.

After reading the opinion of the Court of Appeals, I think that the reversal of Hampton's conviction will stand.

The opinion is People v. Hampton, 2014 WL 6778937 (Mich.App. 2014), in which Hampton's conviction for second-degree murder was reversed. The conviction was reversed because it was largely the result of the expert testimony of Battle Creek police officer Tyler Sutherland, the same expert who testified in a similar case that led to a reversalSee People v. Bynum, 852 N.W.2d 570 (Mich. 2014). In Bynum, the Supreme Court had found the admission of the following testimony constituted reversible error:

"[W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn't know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. ‘Make us-give me [i.e., Bynum] a reason to-to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.'"

According to the Supreme Court of Michigan, this testimony was objectionable because

"[i]n contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland's testimony interpreting the video evidence specifically connected those character traits to Bynum's conduct in a particular circumstance.” Id.4 As noted earlier in the Bynum analysis, “an expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant's conduct simply because he or she is a gang member."

This takes us back to Hampton. In Hampton, the court was easily able to reverse Hampton's conviction because

Sutherland three times crossed the Bynum line by testifying that: (1) defendant, Gordon, and Bolden "purposely" entered enemy territory to “avenge some sort of gang disrespect they felt was done...," (2) defendant, Gordon, and Bolden drove "into this hornet's nest ... purposely as gang members attempting to avenge disrespect," and (3) defendant and the other two men “were just intending to shoot at that entire neighborhood that was full of rival gang members to prove a point.” We agree that at these points, Sutherland's testimony contravened MRE 404(a). Were these Sutherland's only entries into prohibited evidentiary territory, we might be inclined to agree with the prosecutor's argument that this testimony constituted only "a minor blip in the context of the great weight of his time on the witness stand." The record instead reflects that Sutherland's pronouncements of defendant's guilt permeated his expert presentation.

Sutherland not only impermissibly crossed the MRE 404(a) line by connecting general character with specific conduct, he repeatedly told the jury that the facts demonstrated defendant's guilt of the crimes with which he stood charged. This was a bridge too far. While expert testimony regarding gangs and their culture was relevant in this case, MRE 702 does not allow an expert testifying in a criminal trial to offer his or her learned opinion regarding the ultimate question of a defendant's guilt or innocence.

Interestingly, the Court of Appeals of Michigan merely cited Rule 404(a), which deals with character evidence, and Rule 702, which is the general rule that deals with expert testimony. The specific rule that actually precludes experts from offering legal conclusions is Rule 704, which was cited in Bynum. But, whatever the rule, it seems like the Court of Appeals reached the correct conclusion in Hampton, and I doubt that the Supreme Court of Michigan will disturb its opinion on appeal.



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