District court erred in admitting gang-expert testimony as to general gang activity and gang affiliation, but the error was harmless.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Court of Appeals Anderson, Paul H., J.
Concurring specially: Gilbert, J.
Appellant Montell Andre DeShay was charged by complaint in St. Louis County with conspiracy to commit a controlled substance crime in the first degree for the benefit of a gang, Minn. Stat. §§á152.021, subd. 1(1) (2002), 152.096, subd. 1 (2002), and 609.229, subd. 2 (2002), and committing a controlled substance crime in the third degree for the benefit of a gang, Minn. Stat. §§ 152.023, subd. 1(1) (2002), and 609.229, subd. 2.*fn1 Following a jury trial, DeShay was found guilty as charged. The district court entered a judgment of conviction for the conspiracy count and sentenced DeShay to an executed 98-month prison term. On appeal, DeShay challenged, among other things, expert testimony relating to gangs and gang affiliation. The court of appeals affirmed. Concluding that the admission of gang expert testimony was error but that the error was harmless, we affirm.
In 1999, Robert Jackley, a paid informant operating in that capacity for the Duluth police department, became acquainted with a group of seven to eight individuals who were selling crack cocaine and heroin imported from Milwaukee, Wisconsin. He knew the group members by "street names," including "Rat," a/k/a William Frazier, and "Animal," a/k/a Jim Lee. Jackley observed members of this group selling drugs from several locations and purchased drugs from most of them in a series of controlled buys. He also accompanied at least one member of the group to Milwaukee for the purpose of purchasing drugs for resale in Duluth.
Jackley met DeShay in December 1999 at Lee's home. Lee said DeShay was his nephew or cousin and introduced him as "Sickness." Jackley witnessed DeShay selling drugs several times, and on January 13, 2000, Jackley purchased approximately 0.1 grams of crack cocaine from DeShay in a controlled buy. After the purchase, Jackley asked DeShay if, in the future, he could buy drugs at a location near Lee's home and DeShay responded that he could. DeShay also told Jackley not to return to Lee's home because the group no longer did business there.
At DeShay's trial, in addition to Jackley, the following three witnesses testified to having seen DeShay selling drugs as a representative for the group: Paul Taylor and Robin Raymond—both of whom were police informants and heroin users; and Melissa Sabrowski, a former girlfriend of a group member. Taylor and Raymond each accompanied group members on trips to Milwaukee for the purpose of acquiring cocaine and heroin. Both stated that they were given heroin in exchange for allowing the group to use their Duluth apartments to repackage and sell the drugs obtained in Milwaukee. Sabrowski testified to having witnessed the sale of heroin, crack, and powder cocaine, to having joined group members on trips to Milwaukee to restock the drug supply, and to having seen DeShay hanging out with the other group members while drugs were being sold. However, Sabrowski testified that she had never witnessed DeShay selling drugs.
In addition to the testimony concerning the drug enterprise, Taylor, Raymond, and Sabrowski collectively testified that the group functioned as a criminal gang: they testified about the leadership structure of the group; the use of gang names and street names; gang colors; gang signs; gang jewelry—gold necklaces with the words "Breed" or "New Breed"; references to the group as "the Mob," "the New Breeds," a gang "off the G.D.s," a common abbreviation for the established gang the Gangster Disciples; and statements by some members, though not DeShay, that they were in a gang.
As part of the state's case-in-chief, over objection of defense counsel, Special Investigator Scott Jenkins of the Minnesota Gang Strike Force (MGSF) was permitted to testify as an expert about gangs and gang affiliation.*fn2 Jenkins began by testifying about his credentials and experience. He stated that he had worked as a police officer for nearly twenty years, three years as a special investigator with the MGSF assigned to a regional unit covering eleven counties in the northeastern part of the state. Jenkins received training with the Minnesota Bureau of Criminal Apprehension, the gang unit of the Minneapolis police department, and national training on gang trends, surveillance, and working with informants. He testified about the use of informants in gang investigations and answered general questions about gangs. When asked "[w]hat sort of criminal activities are street gangs involved in," he responded: murder for hire, murder for the benefit of a gang, large and small scale narcotics trafficking, "[i]ntimidation-type crimes," criminal sexual assault, burglaries, property crimes, "[j]ust a whole myriad of different crimes."
Jenkins then was asked to discuss "the information you have gathered about that particular gang [the Black Gangsters or New Breed]." Jenkins proceeded to testify about a Midwestern street gang called the "Black Gangsters," also known as "Breed," "New Breed," "New Breed Disciples," or "Trey Ls," with which he had become familiar during his training and experiences. He stated that, as a "Midwest street gang," the gang started in Chicago and spread to smaller urban areas like those the size of Duluth. He talked about how Midwest gangs are generally divided into two rival groups, the people nation and the folk nation, each group having common signs, slogans, colors, tattoos, and jewelry. He said the Black Gangsters or New Breed are generally aligned under the folk nation, although "in some cases they are aligned under both the folk and people depending on how it benefits their gang."
The state then offered, for illustrative purposes, a chart created by Jenkins that purported to outline the Black Gangsters or New Breed Disciples, their representative symbols and colors, and their general alliance. Jenkins went on to talk about the gang's symbols, many of which came from the folk nation and others which came from the people nation, "being that they could have a general a[l]liance under either one." He talked about their main symbol which was "like a six-point star of David," each point representing different aspects of gang life: "life, loyalty, respect, knowledge, wisdom, and so on." He talked about other gang symbols, which were an upward facing pitchfork, a rabbit head with a cocked ear or a bent ear, and a heart with horns.
After this testimony, the state asked Jenkins, "[W]hat type of [criminal] activities or pattern of [criminal] activities is [this particular gang] involved with?" He proceeded to describe the gang's drug trafficking operations, person crimes of drive-by shootings and assaults, including sexual assaults, and property crimes including burglary and theft. He talked generally about how gang members gain "rank" by committing crimes or being born into the gang. He talked about how gang members would be held accountable to the gang, although differing "from gang to gang," with penalties ranging from exclusion from the gang "to a homicide." His testimony included a general discussion of how gangs often employ local people to facilitate their criminal enterprises by providing places to sell or hide drugs, delivering messages, and using their names for financing things like cars or cell phones.
Jenkins was then asked to discuss the ten-point gang identification criteria adopted by the Criminal Gang Oversight Council and used by MGSF to determine gang membership. For illustrative purposes, Jenkins offered the list of the criteria.*fn3 Jenkins also explained the derivation of the criteria, noting that the criteria ultimately adopted were based in large part upon criteria already in use on the West Coast and in other areas of the Midwest, like Chicago and Detroit: "[T]hese criteria are a conglomeration of all of those things that have been grabbed from other areas of the nation."*fn4 The state then began the process of going through the criteria, asking Jenkins the factors he looked to when determining gang affiliation. Jenkins then went ...