In State v. Richard, the Supreme Court of South Dakota ruled that the State’s use of the defendant’s gang affiliation to prove motive was proper. Moreover, the State’s failure to produce a forensic report in discovery did not entitle the defense to a mistrial.
The Facts & Procedural History
Kaleb Lukkes, Masheka Barnett, Clint Marshall, and the defendant, Elias Richard, all in a car, drove to confront Vernall Marshall about text messages he sent Barnett’s minor daughter regarding illegal drugs and sex.
Lukkes, Clint, and Richard were all members of the Dark Side Family gang. Lukkes testified that he gave Richard a .25 caliber gun and told him to use it to scare Vernall. Lukkes, Clint, and Richard later confronted Vernall, beat him up, and Lukkes testified that Vernall used the .25 caliber gun to shoot Vernall twice in the back. Vernall later died from his injuries.
Police later found .25 caliber shell casings at the scene of the crime. While executing a search warrant at Lukkes’ apartment, police found what they believed to be .25 caliber shell casings.
Police eventually arrested Richard for Vernall’s murder. The defense filed a motion in limine asking the trial court to preclude any evidence regarding Richard’s membership in the Dark Side Family gang. The State’s theory is that Richard’s gang affiliation was probative of his motive to confront, shoot, and kill Vernall. The trial court denied the motion.
During the trial, a law enforcement witness testified that a report from a firearms expert determined the shell casings inside Lukkes’ apartment were from a .22 caliber gun. The defense requested a mistrial claiming it never received the forensic report. Moreover, the defense argued that it lost credibility with the jury because it had already claimed during opening statements that Lukkes was the real killer, partly due to evidence that .25 caliber shell casings were found in his apartment — the same caliber found at the crime scene. The State claimed the oversight was inadvertent.
The trial court denied the motion for a mistrial.
The jury found Richard guilty of second-degree murder and was sentenced to life in prison. The defense appealed the trial court’s rulings.
The Law
South Dakota’s evidence law declares that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
However, a court may exclude evidence “where its probative force is substantially outweighed by a danger of unfair prejudice, among other considerations.” Notably, “[t]he moment evidence is found relevant, the scale ‘tips emphatically in favor of admission’ absent its probative value being substantially outweighed by Rule 403 concerns.”
The denial of a motion for a mistrial will not be disturbed unless there is an abuse of discretion by the trial court. In fact, “[w]hen a discovery order is violated, the inquiry is whether the defendant suffered any material prejudice as a result of the late disclosure.”
The Court’s Reasoning — Relevance
The Court ruled the evidence of Richard’s gang affiliation was relevant “because it helped explain Richard’s involvement in confronting Vernall.” There appeared to be no other reason for Richard to attack and shoot Vernall. Richard was not present when Barnett received the texts from Vernall and there was no evidence that Richard and Vernall had some prior argument or disagreement that would trigger the shooting other than Richard’s affiliation with the Dark Side Family gang.
Moreover, the Court rejects the defense’s argument that Richard’s affiliation had no probative value, noting that “evidence is probative if it has any tendency to make a fact in consequence more likely[,]” such as motive. Although only one witness testified to Richard’s affiliation with the gang, the Court notes that “does not make that fact any less probative under Rule 403, but rather implicates the weight that the jury might assign to it.”
The Court also holds that the probative value of Richard’s gang affiliation is not substantially outweighed by the danger of unfair prejudice under Rule 403, reasoning that its purpose was not to serve as propensity evidence, but rather to prove motive.
The Court’s Reasoning — Mistrial/Discovery Violation
The Court ruled that the trial court did not abuse its discretion when it denied the defense’s motion for a mistrial due to a discovery violation.
The defense’s theory was not undercut by the State’s failure to turn over a forensic report. Primarily because the shell casing narrative “was not central to Richard’s defense, which focused on uncontroverted evidence of Lukkes’ ownership and control over the gun used to shoot Vernall.” The defense’s trial strategy unfolded without much reference to the shell casings but instead highlighted the evidence incriminating Lukkes. The evidence implicating Lukkes was uncontroverted and overwhelming, including his ownership of the gun, the fact that he brought it to the scene of the crime, loaded it, and gave it to Richard, among other evidence of his guilt.
The Court also notes that the jury could have found Richard guilty under an aider and abettor theory and that the jury was instructed as such before deliberations. Further, the Court holds that the defense’s loss of credibility during opening, if any, was addressed through its cross-examination of the State’s witness.
The Court concludes that “the absence of the forensic report did not impact Richard’s ability to present his defense theory” and thus, he was not materially prejudiced.
The Bottom Line
The Court got it right on both counts. Although motive is rarely an element of a crime that needs to be proved beyond a reasonable doubt, it is always relevant. Richard’s gang affiliation, under the facts of this case, clearly goes to motive because he had no other reason to attack and shoot Vernall, other than his membership in a gang.
While gang membership is obviously prejudicial, I cannot say that any potential prejudice is substantially outweighed by its probative value — especially under these facts. There was evidence of another potential suspect (Lukkes) and little evidence showing why Richard would go to the scene of the crime and confront a virtual stranger. The foregoing makes Richard’s gang affiliation both relevant and incredibly probative.
The trial court made the right decision when it denied the defense’s motion for a mistrial because the record shows its case remained intact and was minimally undermined by the State’s inadvertent failure to produce a forensic report. Moreover, the jury was instructed that it could find Richard guilty of murder under a different theory unrelated to any evidence in the forensic report.
The standard requires material prejudice. Was there prejudice? Sure. But was it material — clearly not.
John Q. Prosecutor