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

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"),