This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-149

 

State of Minnesota,
Plaintiff,

vs.

Myon Demarlo Burrell,
Defendant.

 

Filed October 3, 2006

Certified questions dismissed

Minge, Judge

 

Hennepin County District Court

File No. 02098794

 

 

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for plaintiff)

 

Tracy R. Eichhorn-Hicks, 1660 Highway 100 South, Suite 500, St. Louis Park, MN 55416 (for defendant)

 

            Considered and decided by Klaphake, Presiding Judge; Minge, Judge; and Forsberg, Judge.*

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            After the supreme court vacated defendant’s conviction for first-degree murder and remanded for a new trial, the district court certified questions regarding the admissibility of gang expert testimony.  Because these matters are within the discretion of the district court, we do not answer the certified questions. 

FACTS

After Tyesha Edwards was shot and killed November 22, 2002, defendant Myon Burrell was charged on eight counts, including first-degree murder and attempted first-degree murder for the benefit of a gang.  A jury found defendant guilty of all counts.  On appeal to the Minnesota Supreme Court, defendant argued for a reversal of his conviction on a number of grounds.  State v. Burrell, 697 N.W.2d 579, 591 (Minn. 2005).  The court reversed defendant’s conviction and remanded for a new trial based on the viewing by the jury of defendant’s videotaped interrogation, procured without an effective Miranda waiver, an expert’s vouching for the truthfulness of one of the state’s witnesses, and defendant’s inability to conduct discovery regarding the plea negotiations of his codefendants.  Id. at 598-99, 601, 605. 

With respect to expert testimony about gangs, the supreme court summarized its holdings in State v. DeShay, 669 N.W.2d 878 (Minn. 2003), and State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003).  Burrell, 697 N.W.2d at 601.  Regarding the gang expert testimony in defendant’s trial, the court stated:

Much of the officer’s testimony was precisely the type of testimony we criticized in DeShay and Lopez-Rios. Nevertheless, we realize the district court did not have the benefit of those two decisions during Burrell’s trial. Accordingly, on remand we direct the court to weigh our directives in DeShay and Lopez-Rios carefully as it exercises discretion over what expert gang testimony is admitted.     

 

Id. at 601-02. 

On remand, the state moved to admit expert testimony regarding gangs.  The state apparently planned to advance as its theory of the case that defendant, a member of the Rolling 30s Bloods gang, had intended to shoot at a member of a rival gang, the Family Mob, when he fired the shot that killed Tyesha Edwards.  Several pretrial hearings were held and testimony was taken from witnesses, including an investigator with the Minneapolis Police Department Gang Strike Force and two university professors who conducted research on gangs. 

            The district court concluded that DeShay and Lopez-Rios only permit expert testimony on gangs based on the expert’s personal knowledge.  Thus, the district court held that the state could not elicit expert testimony based on hearsay regarding gang culture and history and whether a particular gang meets the statutory definition of a gang.  The district court also concluded that the state could show that a particular gang met the statutory definition by introducing evidence of individual members’ criminal offenses.  Finally, the district court determined that the state could show defendant’s membership in a gang based on the Gang Strike Force identification criteria. 

            With the consent of the defendant, the district court certified the following questions as important and doubtful under Minn. R. Crim. P. 28.03:

(1) Do the Minnesota Supreme Court’s decisions in State v. DeShay, 669 N.W.2d 878 (Minn. 2003) and State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003) prohibit expert opinion testimony regarding Rolling 30s Bloods gang culture and history, if the opinion is based on hearsay? 

 

(2)(a) Do DeShay and Lopez-Rios prohibit expert opinion testimony that the Rolling 30s Bloods constitute a criminal gang under Minn. Stat. § 609.229, if the opinion is based on hearsay?

 

(2)(b) If the answer to (2)(a) is yes, and there is no evidentiary stipulation or adequate first-hand knowledge testimony, should the “criminal gang” element be proved through “Spreigl-type evidence,” where evidence of individual gang members’ offense histories is presented?

(3) If the trial court finds that the prosecution’s first-hand knowledge testimony regarding the defendant’s gang membership is insufficient to meet its burden of proof under Minn. Stat. § 609.229, can an expert opine that the defendant is a member of the Rolling 30s Bloods based upon the gang Strike Force identification criteria? 

 

(4) Is the phrase “first-hand knowledge,” as used in DeShay and Lopez-Rios, the equivalent of personal knowledge on the part of the expert? 

 

D E C I S I O N

In a criminal case, “upon any motion relating to the tab charge, complaint, or indictment,” the district court can certify a question to this court if the district court finds the question to be “so important or doubtful as to require a decision of the Court of Appeals.”  Minn. R. Crim. P. 28.03.  Before certifying a question, the district court must decide and specify the precise legal question certified for review.  State v. Brink, 500 N.W.2d 799, 802 (Minn. App. 1993).  The certification procedure should not be used to present a hypothetical question or secure an advisory procedure.  State v. Mireles, 619 N.W.2d 558, 563 (Minn. App. 2000), review denied (Minn. Feb. 15, 2001).  A question should not be certified until the record is sufficiently developed that the question presents a substantial issue and is relevant.  Id.  This court has declined to answer certified questions requiring “a declaration of the ‘discretion’ of the trial court.”  State v. Kvale, 352 N.W.2d 137, 140 (Minn. App. 1984) (declining to consider a certified question asking whether the district court abused its discretion in excluding testimony about crimes allegedly committed by another party); see Mireles, 619 N.W.2d at 563 (citing Kvale, 352 N.W.2d at 140). 

The district court has broad discretion over the admission of expert testimony.  State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003).  In general, expert testimony is permitted if it assists the jury in understanding the evidence or determining a factual issue.  Minn. R. Evid. 702.  But otherwise admissible evidence should be excluded if the danger of unfair prejudice substantially outweighs the probative value of the evidence.  Minn. R. Evid. 403.   

To be convicted for a crime committed for the benefit of a gang, the state must show that the defendant committed the crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.”  Minn. Stat. § 609.229, subd. 2 (2002).  The statute also provides a definition of a criminal gang, requiring that the gang has “as one of its primary activities” the commission of violent crimes, and that it includes members who, alone or together, are engaging or have engaged in a “pattern of criminal activity.”  Id., subd. 1 (2002). 

The supreme court has identified problems with and is skeptical of a gang expert’s testimony.  In DeShay, the court found that the expert’s testimony was “largely duplicative” of the testimony of lay witnesses “with firsthand knowledge.”  669 N.W.2d at 885-88.  In Lopz-Rios, the court also stated that the expert went too far in describing unrelated details, such as the number of Hispanic gangs in Southern California and that the author of some of the gang literature was currently in prison.  669 N.W.2d at 612.  The court found “troublesome” the expert’s opinion that the defendant was a member of a gang, noting that while expert testimony on an ultimate issue is not strictly prohibited, it should be excluded when it “would merely tell the jury what result to reach.”  Id. at 612-13.  Finally, the court stated that “expert testimony on the issue of a defendant’s gang membership that rests on hearsay has Sixth Amendment Confrontation Clause implications.”  Id. at 613.  The court concluded, however, that while “significant parts of the expert’s testimony were beyond the margin of what we deem acceptable,” any error was harmless.  Id. 

In DeShay, the supreme court noted that “the state should not be permitted to launder inadmissible hearsay evidence, turning it into admissible evidence by the simple expedient of passing it through the conduit of purportedly ‘expert opinion.’”  Id. at 886.  The court, as in Lopez-Rios, concluded, however, that any error was harmless.  Id. at 888; see also State v. Jackson, 714 N.W.2d 681, 691-93 (Minn. 2006) (applying DeShay and Lopez-Rios). 

Here, the first four certified questions ask this court to evaluate evidentiary questions that, as the supreme court’s remand instructions made clear, are within the discretion of the district court.  See Burrell, 697 N.W.2d at 602; Lopez-Rios, 669 N.W.2d at 612; see also State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996) (noting that admission of “so-called Spreigl” evidence is within the discretion of the district court).  And the questions ask this court, in effect, to construe the remand instructions of the supreme court, which directed the district court to “weigh our directives in DeShay and Lopez-Rios carefully, as it exercises discretion over what expert gang testimony is admitted.”  Burrell, 697 N.W.2d at 602 (emphasis added).

The district court appears to have attempted to frame the first two certified questions in terms of legal issues rather than discretionary evidentiary rulings.  But even as to these two questions there are problems precluding pretrial appellate review. 

The district court held a lengthy pretrial hearing at which the gang expert the state proposed to call at trial, as well as other expert witnesses, called only to testify about the nature of gang expertise, testified.  The prosecutor made an offer of proof of the lay testimony that could be offered on the subject of gangs and gang involvement in the charged offense, listing a total of seven witnesses.  But the prosecutor later indicated that the availability of much of this lay testimony was questionable.  This court cannot answer a question that is contingent upon testimony that may or may not be presented, or may be ruled inadmissible, at trial.  See Mireles, 619 N.W.2d at 563 (noting practice of declining discretionary review of certified questions dealing imprecisely “with facts that must be proved at trial”);  cf.  State v. Jones, 518 N.W.2d 67, 70 (Minn. App. 1994) (holding that appellate court could not assume, at the pretrial stage, for purposes of assessing critical impact of pretrial rulings, that certain evidence would be presented or rulings made later at trial).

Second, the questions posed by the district court, when read in light of its comments in its certification order, suggest that our supreme court has established an absolute rule on gang expert testimony.  The district court expressed its concern that based on DeShay and Lopez-Rios, without a gang expert witness being able to rely on hearsay, “a gang expert can never be used in a criminal case involving charges ‘for the benefit of a gang.’”  But the supreme court in Burrell has remanded for the court to determine “what” expert gang testimony is admissible.  Burrell, 697 N.W.2d at 602.  Although critical and skeptical of gang expert testimony, the court in DeShay and Lopez-Rios did not state that there is a blanket prohibition on gang-expert testimony to prove a crime committed “for the benefit of a gang.”  The court in DeShay held that “much of the gang expert testimony” was without real value, and erroneously admitted.  669 N.W.2d at 888.  As to the gang expert’s reliance on hearsay, the subject of the first two certified questions, the court stated that the gang expert testimony was “largely duplicative” of testimony from witnesses with firsthand knowledge, and that expert gang testimony should not be used to “launder inadmissible hearsay evidence.”  Id. at 886.  As this statement implies, there is still certain admissible hearsay evidence.  Even if, as the district court implied, gang expert testimony must always rely to some degree on hearsay, neither DeShay nor Lopez-Rios, completely bar gang expert testimony.[1]

The third and fourth certified questions (numbered (2)(b) and (3) in the order) appear to ask this court to make evidentiary rulings that are discretionary with the district court.  As discussed above, this court has declined in the past to answer questions addressed to the discretion of the district court.  Mireles, 619 N.W.2d at 563.  The district court’s order describes the testimony of Officer Seidl, the primary prosecution gang expert witness, as “overwhelmingly based on hearsay.” But the prosecution indicated that the “criminal gang” element of its case can be proved through “Spreigl-type evidence” of gang members’ prior criminal offenses, or what “firsthand knowledge testimony” the state might be able to offer to prove that the defendant is a member of the Rolling 30s Bloods.  This court cannot assume the “Spreigl-type evidence” would be ruled inadmissible, or that “firsthand knowledge testimony” concerning defendant’s membership in the Rolling 30s Bloods could not be presented.

  In summary, because we have no record placing these questions in their full context and because we decline to construe the supreme court’s remand or to declare the limits of the district court’s discretion, we decline to answer the first four certified questions.

The last question is whether the supreme court’s references in DeShay and Lopez-Rios to “firsthand knowledge” mean facts within the personal knowledge of the expert.  It is uncertain whether this question is substantial and relevant.  See Mireles, 619 N.W.2d at 563.  In DeShay and Lopez-Rios, the experts testified regarding matters that were already before the jury in the form of testimony from other witnesses with “firsthand knowledge.”  DeShay, 669 N.W.2d at 886;  Lopez-Rios, 669 N.W.2d at 612.  The term “firsthand knowledge” is used in describing the testimony of lay witnesses.  See DeShay, 669 N.W.2d at 886.  The opinions do not discuss the “firsthand knowledge” of an expert witness.

An expert witness may testify based on “facts or data” “made known to the expert at or before the hearing.”  Minn. R. Evid. 703(a).  This is an exception to the firsthand/personal knowledge requirement.  See Minn. R. Evid. 602 & 703.  Also, the rules and the comments do not distinguish between knowledge that is “firsthand” as compared to “personal.”  Compare Minn. R. Evid. 602 with rule 602 cmt., and rule 703 cmt.  Aside from a reference to this general rule, no useful answer can be given to the last certified question, which appears to ask a purely hypothetical question.  There is no showing that the admission or exclusion of any particular piece of expert testimony depends on the answer.  See State v. Filipovic, 312 Minn. 147, 251 N.W.2d 110, 112 (1977) (declining to answer question not clearly shown to be dispositive of the motion to dismiss).  Because there is no apparent benefit to parsing the difference, if any, between “firsthand knowledge” and “personal knowledge,” and because it is uncertain whether this question is substantial and relevant, see Mireles, 619 N.W.2d at 563, we decline to answer this question as well.[2]

Certified questions dismissed.