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147261 - People v Bynum (Levon)

The People of the State of Michigan,
Brandon S. Hultink
Marc Crotteau
(Appeal from Ct of Appeals)
(Calhoun – Sindt, C.)
Levon Lee Bynum,
Michael A. Faraone


​A late-night confrontation in the parking lot of a party store ended with gunfire – three victims were shot, with one dying of his wounds. Officer Jim Bailey, of the Battle Creek Police Department’s Gang Suppression Unit, investigated the shooting. He viewed videotape taken at the party store and identified defendant Levon Bynum and several others, whom Bailey described as members of the Boardman Boys gang. Other people at the scene appeared to be affiliated with a rival gang, the MOB gang. Bailey interviewed Bynum, who admitted that he fired a few shots to defend himself.  Bynum was arrested, and eventually convicted by a jury of first-degree premeditated murder, two counts of assault with intent to commit murder, carrying a concealed weapon, and felony-firearm.  He was sentenced to mandatory, non-parolable life in prison for the murder conviction. 

 Bynum raised several arguments on appeal, including a challenge to the admission of expert testimony on gangs, which he claimed deprived him of a fair trial. A court may permit a qualified witness to testify as an expert if it determines that “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”  MRE 702. However, under MRE 403, evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Bynum argued on appeal that the prosecutor’s expert witness on gangs testified in a way that advocated for Bynum’s guilt, tainting the trial. The prosecutor responded that Bynum did not preserve this issue properly for appellate review, and that the expert’s testimony was relevant, admissible, and not unfairly prejudicial. 

In a split unpublished per curiam opinion, the Court of Appeals agreed with Bynum that the expert’s testimony was improper and denied Bynum a fair trial.  The expert, Officer Tyler Southerland, testified generally about gangs and gang culture, and described how gang members had a strong motive to respond to disrespectful acts in order to maintain status and protect their turf. He testified specifically about the Boardman Boys gang and its rivalry with the neighboring MOB gang. The Court of Appeals majority explained that, if Southerland had limited his testimony to these topics, his testimony would have been unobjectionable. But Southerland also offered improper propensity evidence, the majority concluded, testifying repeatedly that gang members in general, and the Boardman Boys in particular, were prone to use violence – including killing – to gain respect and further their criminal enterprise. He characterized Bynum as a “hardcore” member of the Boardman Boys gang, and told the jury that Bynum and the other gang members were at the party store, waiting for the opportunity to violently defend their turf.   This, held the Court of Appeals majority, “clearly exceeded the grounds of permissible expert testimony,” and amounted to improper testimony on an essential element of first-degree murder:  premeditation. At trial, Bynum’s attorney objected that Southerland’s testimony was irrelevant, prejudicial and cumulative, but did not specifically object that it was improper propensity evidence or that it improperly encroached on the jury’s right to determine premeditation. The majority concluded that, even if Bynum forfeited the claim of error due to the lack of a specific objection, relief was still warranted, because the error was plain and prejudicial. Accordingly, the Court of Appeals reversed Bynum’s convictions and remanded the case for a new trial.

 The dissenting judge would have affirmed Bynum’s convictions. Noting that the majority did not take issue with most of Southerland’s testimony, the dissenting judge was “unable to perceive the line that the majority purports to draw between admissible and inadmissible testimony.” He explained, “[i]f it is relevant, helpful, and unobjectionable for an expert to testify, for example, about gang members’ ‘strong motive to respond to disrespectful acts in order to maintain status and protect the integrity of their turf,’ then the expert’s testimony does not, in my view, become objectionable simply because the expert opined further that those responses are often, or even typically, violent, disproportionate, or sometimes directed at innocent persons.”   Southerland’s testimony was relevant and admissible, the dissenting judge concluded. 

 The prosecutor appealed to the Michigan Supreme Court. On November 8, 2013, the Supreme Court granted leave to appeal, limited to issues concerning the expert testimony presented at trial on “gangs and gang membership – especially the testimony as to the defendant’s gang, the defendant’s role in his gang, and premeditation.” The Supreme Court will consider whether the testimony was more prejudicial than probative under MRE 403, whether the profiling factors listed in People v Murray, 234 Mich App 46, 56-58 (1999), apply to the admissibility of Southerland’s testimony, whether the error was preserved, and whether Bynum is entitled to a new trial. Bynum filed an application for leave to appeal as cross-appellant, which remains pending.