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

elated expert evidence was allowed, the expert testimony on gang affiliation was material
to the case, addressed a contested issue, and was not offered simply to prove criminal
propensity. That is not the situation in the case sub judice. Here, neither the requirements
prescribed by Md. Rules 5- 404(b) and 5-403 nor by Maryland case law supports the
admission of such evidence.
Indeed, in this case, there simply was no legitimate basis or justification for the State’s
proffer of evidence to prove motive. 6 The appellant was charged with first degree murder
6 Despite having multiple witnesses who could and would provide direct evidence
that the appellant committed the murder, the State’s opening statement focused largely on
the appellant’s motive. Pointing to the evidence that the murder was gang-related, which
was circumstantial, and promising to introduce expert testimony to explain the appellant’s
motive, the prosecutor argued:
“On the night of July 14 th , 2007, the Defendant, Mario Gutierrez, was
looking to kill somebody. It didn’t really matter to him what his reason was
in particular, because he had the reason. It didn’t really matter who to him,
because he had the reason. And that reason was his embracement, his
affiliation, and association with MS-13. It’s a violent, deadly, aggressive
street gang.
* * *
“You heard me talk about MS-13. And some of you may know, have heard
of them, some of you may not have. You’re going to hear the testimony of
an expert witness.
* * *
“And he’s going to tell you about MS-13. Its history. Its nature. To do that
testimony, you’re going to see the motivation this Defendant would have
had to kill Francisco. The motivation that he would have had to even be in
that area anyway. Looking for somebody. And you’re going to hear
testimony and evidence about the Defendant’s affiliation and embracement
of MS-13. That’s going to be from his own words at the scene. There are
going to be other evidence of that.”
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