Gangs Three

State v. Vang, Minn.S.Ct., 10/29/2009.  Mr. Vang went to trial separately from Mr. Yang in the Jimmy’s Pro Billiards prosecutions.  Mr. Vang objected to the state’s gang expert testimony, arguing among other things that the testimony violated his right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The complaint here is that to establish that Mr. Vang and others were members of the gang in question the expert testified about statements obtained by another officer and recorded on an interview card.  The state invited the appellate court to assume without deciding that this testimony violated Crawford but that the admission of these statements was harmless.  The appellate court accepted this invitation and quickly concluded that admission of the statements was, indeed, harmless.  The appellate court did agree with Mr. Vang that the statements that the expert recited were inadmissible hearsay and should have been excluded.  Again, the admission of the statements did not, the court concluded, substantially influence the jury’s verdict and so were, again, harmless.

In a related challenge to the expert’s testimony, the defense objected to this series of questions and answers:

Q. Do you have an opinion based on your training and experience as to whether or not members of the MOD gang have individually or collectively engaged in a pattern of criminal behavior?

. . . .

A. Yes I do.

Q. What is that opinion?

A. That members of the MOD gang do individually and collectively engage in a pattern of criminal activity, violent criminal activity, under statute 609, which includes aggravated assaults, drive-by shootings, possession of guns by ineligibles, criminal sexual conduct, auto theft, narcotics and other crimes.

This opinion is improper because it invades the province of the jury.  The expert could have testified that individual members of this gang have engaged in specific criminal activities and describe the facts that support that opinion.  However, the expert could not express an opinion that the state’s proof of a portion of an element of the offense had been met.  Again, however, the error was harmless.

Mr. Vang complained of various other evidentiary rulings and of an instructional error, all of which the appellate court rejected.  As did Mr. Yang, Mr. Vang also complained of the permissive consecutive sentencing; the appellate court rejected this complaint as well.