Appeal from the Superior Court of the District of Columbia (F-862-04) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before WASHINGTON, Chief Judge, and FARRELL and RUIZ, Associate Judges.
Opinion for the court by Associate Judge FARRELL.
Dissenting opinion by Associate Judge RUIZ, at page 8.
Appellant was found guilty by a jury of assault with intent to kill while armed, aggravated assault while armed, and carrying a dangerous weapon outside the home or place of business. Evidence permitted the jury to find beyond a reasonable doubt that appellant was one of a group of persons who, believing that the victim, Miguel Garay, was a member of a particular gang, chased him into a barbershop where appellant repeatedly stabbed him with an object resembling a screwdriver. A patron of the barbershop pointed out appellant to nearby police as he fled the scene moments later; they caught him and returned him to the shop, where he was identified by two patrons - one from his clothing, the other from his full appearance - as the man wearing a blue, hooded shirt or windbreaker who had stabbed Garay.
On appeal, Lazo raises several grounds for reversal of his convictions, none of which, we conclude, warrants that relief. We remand for correction of his sentence.
At trial, the judge allowed Miguel Garay to testify, over objection, that shortly before the assault he had passed near a group of some ten people on the street corner, one of whom asked him "if [he] was V.L.," which Garay understood to mean "Vocos Locos, . . . the name of a gang." When Garay ignored the question, the group began chasing him. He ran into the barbershop for refuge, but several men followed him in and assaulted him; during the assault he heard a young woman yell, "[S]top, . . . leave him alone, he's not in the gang, he's not in the gang."
Appellant contends that these references to "Vocos Locos" and a "gang" were not relevant to any issue in the case - they were "not required to prove any element of the [charged] offenses" (Br. for App. at 15) - and served only to inflame the passions of jurors perhaps too familiar with gang activity. He is mistaken. The limited references to a gang by Garay "suppl[ied] to the jury a motive for an otherwise unexplained [stabbing]," Plummer v. United States, 813 A.2d 182, 189 (D.C. 2002), and thus were relevant to appellant's identity as one of the assailants. Specifically, of the universe of persons who hypothetically might have had a motive to assault Garay, the brief references to "Vocos Locos" enabled the jury to narrow that class to persons from among the group that had identified him with a gang they evidently disliked, and who had chased him into the shop for that reason. Garay himself did not link appellant directly to the stabbing: he did not know him and could not identify him (or anyone) as his assailant. The direct identification evidence came from the two barbershop patrons who observed the stabbing, saw appellant flee, and identified him when he was returned to the shop by the police. The relevance of the motive evidence, by contrast, lay in countering the argument a competent defense attorney surely would have made in its absence that reasonable doubt existed because no reason had been shown for appellant to assault Garay. The references to "Vocos Locos," in short, provided circumstantial evidence of appellant's identity, because it is hornbook law that "[t]he presence or absence of a motive on the part of the defendant which might tend to commission of . . . a [criminal] deed may always be considered by the jury on the question of whether he did commit it." ROLLIN M. PERKINS& RONALDN. BOYCE, CRIMINALLAW 928 (3d ed. 1982).
The test for relevance is a minimal one; evidence is relevant if it has "any tendency to make the existence of any fact . . . of consequence to the determination of the action more probable or less probable than it would be without the evidence." Street v. United States, 602 A.2d 141, 143 (D.C. 1992). Here the motive evidence undeniably had some "tendency" to make appellant's identity as the stabber more probable than it otherwise would have been, by "supply[ing] . . . a motive for an otherwise unexplained [assault]." Plummer, supra.
Beyond determining relevance, the trial judge was obliged to balance the probative value of the gang references against their potential for prejudice. See, e.g., Plummer, 813 A.2d at 189. The judge carefully did so, recognizing the probative value of the motive evidence but also the potential prejudice to a defendant from any reference to gang activity or affiliation. The judge, therefore, strictly limited testimony on the subject to the few matters described above, at one point admonishing the prosecutor that "we are not going to be talking about any gang activity." There was no abuse of discretion in this careful balancing. See, e.g., Freeman v. United States, 689 A.2d 575, 580 (D.C. 1997). And, it goes without saying, we reject appellant's reliance on those decisions that have condemned mention of gang membership where, in the circumstances, it created a "significant danger that conviction rested merely on guilt by association." Id. at 582 (discussing such cases). The references "to "Vocos Locos" were only one piece of the mosaic of evidence strongly demonstrating appellant's guilt.
Our dissenting colleague asserts that only "[i]f there had been evidence presented that appellant was a member of a gang . . . would [we] be correct in stating that the gang references were probative." Post at 9. This oddly implies that only overtly prejudicial evidence of his gang membership - evidence the trial judge might well have excluded as more prejudicial than probative - would have sufficed to meet minimal standards of relevance. In fact, though, it was not important whether appellant belonged to a gang or not; what mattered was that, by reasonable inference, he was part of the group of persons who accosted Garay believing (mistakenly, it appears) that he was a member of a gang they disliked, and who therefore chased him into the barbershop where one or more of them assaulted and stabbed him. That evidence - Toliver evidence, if you will*fn1 - of the circumstances surrounding a stabbing linked to appellant by two eyewitnesses explained an action that otherwise would have been argued to ...