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State v. Corona2/11/1997
ed the jury to disregard the testimony about the arrests. These instructions adequately remedied any unfair prejudice from the testimony.
We also reject the argument that the reference to the defendant's arrests as a juvenile violated his right to privacy on juvenile matters safeguarded by A.R.S. section 8-207(C) and by Rule 609(d), ARIZ. R. EVID. Reference to the circumstances of the defendant's arrests did not implicate section 8-207(C), which precludes only the use of juvenile court Dispositions. Matter of Estate of R.C., 167 Ariz. 246, 248, 805 P.2d 1067, 1069 (App. 1990). Rule 609(d) is inapplicable because this case did not involve the use of a "juvenile adjudication" to impeach the defendant.
6. Admission of Expert Opinion
During the state's redirect examination of Luebkin, the following exchange occurred:
: Can a gang member promote his or her gang by merely stating the name of the gang in making the threats?
A: Yes.
Q: Can you explain to us how that occurs?
A: Basically, in promoting the gang, one gang member, especially in the loosely-knit gangs -- when I say "loosely knit," loosely organized. They do tend to be tightly organized, but they are loosely knit. One member, for lack of a better word, would have the authority to make a threat on behalf of that gang and, in doing so, can promote his status in the gang or the status of the gang within the community or neighborhoods.
Q: Does a gang member -- when making threats and in using the name of the gang, is that used to further intimidate the witness or a victim?
A: Yes. In fact, that would be, in my opinion, the sole reason to use the gang name.
Although the defendant did not object to this testimony, he argues on appeal that it constituted "advice to the jury on how to decide the case." See State v. Moran, 151 Ariz. 378, 383, 728 P.2d 248, 253 (1986). We find no error. The principal issues in the case were whether the defendant made any threat, whether he invoked the name of the Hollywood gang at all and, if so, for what purpose. The testimony was relevant expertise.
We need not reach the arguments alleging the coercion of the jury verdict and the voluntariness of the defendant's absence at the return of the verdict. These issues are not likely to reoccur.
Due to our Disposition of the appeal of the defendant's convictions, we also need not address the issues raised in the defendant's supplemental brief concerning the revocation of his probation.
Conclusion
In 1 CA-CR 95-701, the defendant's convictions are reversed. The matter is remanded to the trial court for further proceedings consistent with this decision. In 1 CA-CR 96-250, the defendant's revocation of probation is vacated.
SUSAN A. EHRLICH, Judge
Concurring
JAMES B. SULT, Presiding Judge
EDWARD C. VOSS, Judge
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