WA Legal Roundup: Division III
Scott appeals the trial court’s decision to admit evidence of his gang affiliation at his trial for charges of first degree assault. Scott was an outstanding citizen: meth dealer and member of a notorious gang. Scott came to the rescue when one of his associates was having trouble obtaining his property (gun and cash) from his ex-girlfriend Wendy. Scott and another man broke into the Wendy’s home, recovered the property (with a little interest in the way of taking other property) and proceeded to beat Wendy’s current boyfriend within an inch of his life. Scott broke a full bottle of beer over the victim’s head and then proceeded to stab him several times with the broken bottle.
The State successfully convinced the trial judge that evidence of Scott’s gang affiliation should be admitted. Gang affiliation is protected by our First Amendment right of association. Gang affiliation is only admissible if there is a nexus between the crime and gang membership. Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d. 309 (1992). The State intended to show that Scott’s motive in the attack was because Wendy had shown the gang disrespect. However, there was no evidence submitted during the trial to indicate that this was Scott’s motive. The State’s gang expert didn’t even talk about “disrespect” in gang culture or make a nexus between the attack and gang membership.
Washington courts also require a nexus between the crime and the gang affiliation before such evidence is admitted. State v. Campbell, 78 Wn. App. 813, 901 P.2d 1050, review denied, 128 Wn.2d 1004 (1995). Division III found that the evidence fell short of showing any nexus between Scott’s motive and his gang affiliation. The State’s expert testimony failed to provide this nexus. Without this nexus the jury was left to infer that the gang affiliation evidence just showed that Scott was a bad person (he really wasn’t). This violates ER 404(b). Convictions reversed and the case remanded for a new trial. I’m betting the State’s expert testimony will make the connection next time.