The SJC recently held that the use of a suspects gang affiliation during his trial was not improper in COMMONWEALTH vs. ISAAC WALLACE 460 Mass. 118 (2011) There was no error by defense counsel or the judge during the murder trial in their treatment of evidence of gang affiliations.
The court said in discussing “Evidence of defendant’s gang affiliation. The defendant contends that his trial counsel and the judge erred in their treatment of the evidence of the defendant’s gang affiliation. We first point out that there was no evidence at trial of the defendant’s involvement in a gang. The prosecutor, however, in his opening statement, did suggest that the victim “had choices,” including the choice of “the temptation of gang culture.” This statement was intended to explain the expected motive evidence, which materialized. At trial, there was evidence concerning a possible motive for the victim’s shooting, namely that the defendant was avenging the victim’s attempted murder of Nixon.
“[I]n cases involving the introduction of evidence of gang affiliations, we have stressed that trial judges should take steps to minimize the prejudicial impact of this evidence.” Commonwealth v. Smith, 450 Mass. 395 , 400, cert. denied, 129 S. Ct. 202 (2008). These steps include “screen[ing] potential jurors during the empanelment process about their ability to hear gang-related evidence and remain impartial” and providing limiting instructions when such evidence is introduced at trial. Id. Here, the motive evidence and other evidence at trial made no mention of any gang affiliations with respect to the defendant or the victim. Thus, there was no need for any limiting or curative instructions concerning the defendant’s involvement in a gang. The prosecutor’s reference to a gang pertained only to the victim and was an isolated remark. The judge instructed the jury that the opening statements and closing arguments of counsel are not evidence. Prior to trial, there was no indication that gang affiliation would be an issue in the case, thus warranting specific screening of prospective jurors on the matter. In the circumstances, there was no error by defense counsel or the judge, nor was there any occurrence of a substantial likelihood of a miscarriage of justice.
Order denying motion for a new trial affirmed.”
Attorney Ronald A. Sellon