HEADNOTE: Mario Rodriguez Gutierrez v. State of Maryland, No. 98 ...

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IN THE COURT OF APPEALS OF MARYLAND No. 98 September Term, 2009 MARIO RODRIGUEZ GUTIERREZ v. STATE OF MARYLAND Bell, C.J. Harrell Battaglia Greene *Murphy Adkins Barbera, JJ. Dissenting Opinion by Bell, C.J., Part B of which Greene, J., joins . Filed: November 29, 2011 *Murphy, J., participated in the hearing of this case as an active member of this Court, but did not take part in the conference and adoption of the opinion.
This case considers the propriety, and effect, of the introduction, at the trial of Mario Rodriguez Gutierrez, the appellant, of evidence, expert testimony, regarding the history, practices and violent tendencies of a gang of which the appellant was alleged to be a member. The trial court admitted the testimony and the jury convicted the appellant of first degree murder and use of a handgun in the commission of a felony. Although agreeing with the appellant that admission of some of the expert testimony was error, the majority holds that the error was harmless. Gutierrez v. State, __ Md. __, __, __ A.2d __, __ (2011) [slip op. at 22]. It, therefore, affirms the appellant’s convictions. Id. at __, __ A.2d at __ [slip op. at 24]. I do not agree. Under the facts and circumstances of this case, I am satisfied that the expert testimony, in its entirety, was inadmissible, either because it was not material or because it was more prejudicial than probative. Consequently, although I certainly agree that the trial court erred, I do not agree that the error was harmless. The following facts, although contested by the appellant, were presented to the jury and, for purposes of this appeal, must be assumed to have been accepted by the jurors as fact. See Blake v. State, 418 Md. 445, 460, 15 A.3d 787, 796 (2011) (Stating that the “clearly erroneous” standard of review is applicable to the circuit court’s finding of facts); Longus v. State, 416 Md. 433, 457, 7 A.3d 64, 78 (2010) (Stating that the reviewing court makes its own independent appraisal of the law but defers to the trial courts finding of facts unless they are clearly erroneous) (citing Jones v. State, 343 Md. 448, 457-58, 682 A.2d 248, 253 (1996)). Francisco Quintanilla, the victim, was one of a small group approached by a black Honda Civic, from which one of the passengers shouted “Mara Salvatrucha,” (“MS-13"),
Page 1 and 2: HEADNOTE: Mario Rodriguez Gutierrez
Page 3 and 4: In this case we must determine whet
Page 5 and 6: Gutierrez told Alvarado-Pineda to s
Page 7 and 8: Norris was admitted as an expert, w
Page 9 and 10: (3) When a non-gang member uses han
Page 11 and 12: objection to the admission of evide
Page 13 and 14: Lords because the average juror is
Page 15 and 16: was a member of that gang, opened t
Page 17 and 18: State’s theory of the case was th
Page 19 and 20: 18th Street [G]ang.” Id. at 664,
Page 21 and 22: Q. What about [one of the other pas
Page 23 and 24: MS-13 undercurrent heightened the p
Page 25: in light of the mountain of other t
Page 29 and 30: ‘[v]iolence . . . [u]p to death.
Page 31 and 32: a half years in this region...,’
Page 33 and 34: may be admissible when it has ‘sp
Page 35 and 36: are consistent with, and indeed, fo
Page 37 and 38: which he did not dispute, the defen
Page 39 and 40: contrary evidence, that the defenda
Page 41 and 42: and the use of a handgun in the com
Page 43 and 44: material contested issue. Thus, thi
Page 45 and 46: the necessary elements of the crime
Page 47 and 48: magic passwords whose mere incantat
Page 49 and 50: that the appellant, because of this
Page 51 and 52: (2009). The majority only addresses
Page 53 and 54: IN THE COURT OF APPEALS OF MARYLAND

HEADNOTE: Mario Rodriguez Gutierrez v. State of Maryland, No. 98 ...

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