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JOHNINSON v. STATE

July 5, 1994

MICHAEL F. JOHNINSON
V.
STATE OF ARKANSAS



Appeal from Pulaski Circuit Court, Fourth Division; John W. Langston, Judge; affirmed.

SYLLABUS BY THE COURT

1. EVIDENCE - ADMISSIBILITY OF EXPERT TESTIMONY - STANDARD OF REVIEW. - The trial court has wide discretion in evidentiary matters, and the standard of review for a trial court's ruling on the admissibility of expert testimony is abuse of discretion.

2. EVIDENCE - ADMISSIBILITY OF EXPERT TESTIMONY. - Expert testimony is admissible when it will aid the jury in understanding the evidence presented or in determining a fact in issue, and an important consideration in deciding whether the testimony will aid the trier of fact is whether the subject is beyond the ability of a lay person to understand.

3. EVIDENCE - ADMISSIBILITY OF EXPERT TESTIMONY ON STREET GANGS - RELEVANCE MUST BE DEMONSTRATED. - When its relevance has been demonstrated, expert testimony on the membership, organization, purposes, and conduct of particular street gangs may be admissible.

4. EVIDENCE - NO ERROR TO BAR EXPERT TESTIMONY - TESTIMONY WOULD HAVE BEEN ONLY BROAD OVERVIEW OF GANGS. - Where proffered testimony showed that the expert commented on the "fluid" nature of gangs in general, remarking that "[t]hey change," he The opinion of the court was delivered by: Jack Holt, Jr., Chief Justice.

In this appeal from his conviction as a habitual offender on a second-degree murder charge, for which he received a forty-year sentence, the appellant, Michael F. Johninson, raises two points for reversal. He contends that the trial court erred in (1) prohibiting him from introducing expert testimony regarding the culture and dynamics of urban street gangs and (2) denying his motion for discovery of the State's "gang files." Neither point has merit, and we affirm the judgment.

Facts

Late in the afternoon of August 9, 1992, appellant Johninson and Frances Walton, a female companion, drove to the area near the intersection of Oak Street and 16th Street in Little Rock. Johninson intended to purchase some crack cocaine from either Michael Lairy or Michael Goins, two dealers in that vicinity from whom he had previously bought drugs. He spotted Lairy and motioned him to get into the car.

According to Johninson's testimony, while he was waiting for Lairy, eighteen-year-old Sedrick Fowler and nineteen-year-old Marquis Bullock approached the vehicle on bicycles. Johninson stated that Fowler thrust his hand through the door window and [317 Ark Page 435]

displayed some drugs. The record indicates that, after Johninson told Fowler that "I want to see Michael Lairy," some vulgar and heated words were exchanged. Meanwhile, Lairy got in the car, and Johninson drove him to the intersection of Oak Street and 15th Street.

Not satisfied with the offered drugs, Johninson turned to pull the front seat forward to let Lairy out of the back seat, when Fowler and Bullock again approached the car. After Lairy's exit, Bullock struck Johninson on the side of the head. Testimony differed on whether the assailant hit Johninson with his fist or with a brick. Johninson testified that he was aware at the time that he was in a gang area controlled by the Oak Street Posse, a local organization reputedly affiliated with the Los Angeles-based Bloods, and that he had been informed that Fowler and Bullock were members of the gang. He also said that he was "thinking that these guys are fixing to take my life" and stated that Fowler was coming toward him with a shiny object in his hand.

As a result, Johninson reached for a gun and fired it from the open car window. The bullet struck Fowler in the chest and killed him. Bullock ran, several neighborhood youths began to come forward, and Johninson drove away. Some twenty-two days later, he was arrested by the police.

On September 14, 1992, the Prosecuting Attorney for the Sixth Judicial District filed an information charging Johninson with first-degree murder. In addition, the State sought sentencing enhancement on the basis that Johninson had been convicted of four or more felonies. The name "Johnson" had been used on the original information, and the prosecutor filed an amended information on November 20, 1992, correcting the spelling.

A jury trial was held on August 6 and 7, 1993. Johninson was convicted of second-degree murder, in violation of Ark. Code Ann. 5-10-103 (Repl. 1993), and was sentenced as a habitual offender to forty years in the Arkansas Department of Correction. From that judgment, this appeal arises.

I. Expert testimony on street gangs

In his first point for reversal, Johninson argues that the trial court erred in refusing to allow Pulaski County Coroner Steve Nawojczyk to testify as an expert on urban street gangs. Both [317 Ark Page 436]

before and during the trial, the defense proffered Mr. Nawojczyk's testimony regarding, in general, gang loyalty, gang territorial control, and gang violence for the purposes of casting doubt on the credibility of the testimony of certain witnesses associated with the Oak Street Posse and showing that Johninson reasonably believed that Fowler would have used physical force against him had he not shot the youth. The trial court found that the testimony was irrelevant and would have invaded the province of the jury.

[1, 2] The trial court has wide discretion in evidentiary matters. Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993). The standard of review for a trial court's ruling on the admissibility of expert testimony is abuse of discretion. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Expert testimony is admissible when it will aid the jury in understanding the evidence presented or in determining a fact in issue. Ark. R. Evid. 702 (1994); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). An important consideration in deciding whether the testimony will aid the trier of fact is whether the subject is beyond the ability of a lay person to understand. Stewart v. State, supra.

During the past few years, the nationwide proliferation of street gangs has captured the attention of the popular media, academic observers, and the legal system. The structures of urban gang life have been and are continuing to be explored in a growing body of work that embraces various disciplines. *fn1 Studies of juvenile gang subcultures have contributed to the creation of specialized fields of sociological and criminological inquiry, which, [317 Ark Page 437]

through expert witnesses, are gaining some recognition in the nation's courts.

Indeed, other jurisdictions have been developing case law on the use of expert testimony on gangs. *fn2 For instance, in United States v. Robinson, 978 F.2d 1554 (10th Cir. 1992), cited by Johninson, the Tenth Circuit Court of Appeals upheld the admissibility of the testimony of a police officer appearing as an expert witness that various blue items found in an apartment where a drug manufacturing operation was discovered, as well as the defendants' blue outer clothing and underwear, led him to the conclusion that the defendants were members of the Crips gang. This evidence was used after the police investigation had been completed to explain the items found in the possession of the defendants, and the prosecution was subsequently able ...


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