Metropolitan News-Enterprise


Tuesday, March 9, 2010


Page 1


Court of Appeal Tosses Out Convictions in ‘Biker’ Murder Case

Justices Say Evidence About Motorcycle Club Was Irrelevant and Prejudicial




The homicide convictions of two members of the Jus Brothers motorcycle club have been thrown out by the Third District Court of Appeal.

The justices Friday ordered a new trial for Robert Memory and Frankie Prater, saying evidence of their affiliation with the club was irrelevant and prejudicial.

A San Joaquin Superior Court jury found Prater guilty of second degree murder and Memory of two counts of attempted voluntary manslaughter and two counts of assault with a deadly weapon.

The charges stemmed from a November 2004 episode in which two men were stabbed, one fatally, in a Stockton bar. Police originally arrested the club’s vice president, Mark Ewing, and his wife Heather before releasing them after Prater and Memory turned themselves in.

The Ewings subsequently filed a federal civil rights action against the police officers and prosecutors involved in the case. The Ninth U.S. Circuit Court of Appeals ruled in December that the police had qualified immunity, but that the plaintiffs could sue a deputy district attorney who allegedly told the police to charge the couple with murder despite a lack of supporting evidence.

Latitude Given

Before the trial of Prater and Memory, Judge Linda Lofthus ruled that the prosecution would not be allowed to call an expert on “outlaw” motorcycle gangs, but would be allowed “a ton of latitude” in cross-examination of the defendants, and could call members of the club as hostile witnesses.

During the trial, the prosecutor argued that the defendants were part of an outlaw group, and that members of the group considered themselves to be “one-percenters,” meaning they were “warrior”-like and considered themselves different from the other 99 percent of the population. Jurors were informed that the group was tight-knit, with members having held fundraisers for the defendants and put up their homes as collateral for bail.

The jury was also told that “to be a one-percenter in this area, you have to be a supporter of the Hell’s Angels” and that Jus Brothers “exist with their blessing.” A motion for mistrial based on the comment was denied.

Prosecutors also presented evidence regarding the club’s history and function, which was admitted, subject to a limiting instruction, as tending to prove motive, identity and intent. And they introduced repeated references to Hell’s Angels. After they were convicted, Memory and Prater moved for a new trial, saying the conviction was a product of irrelevant testimony.

Justice Tami Cantil-Sakauye said the defendants were correct.

While the evidence was relevant to identity, the justice said, that wasn’t really an issue in the case. What was disputed, she explained, was whether the defendants were the people who stabbed the victims.

What the evidence of their membership did, the jurist said, was to suggest that the defendants has a criminal disposition, and that they would have responded violently to a challenge. But there was no evidence that Prater or Memory had such a disposition, Cantil-Sakauye said. 

The repeated Hell’s Angels references compounded the problem, the justice said.

“In sum, we recognize that with an appropriate foundation and limitations, testimony regarding the beliefs and practices of an organization may be relevant to explain the conduct of a member on a particular occasion,” she wrote. “This did not happen here.  We conclude, on this record, the trial court erred in admitting wholesale the evidence of the Jus Brothers motorcycle club and its alleged connection to the Hell’s Angels.”

‘Inconsistent Descriptions’

The jurist also rejected the contention that the admission of the evidence was harmless. She noted that there was a “jumble of inconsistent descriptions of the fight,” and that the jury had to resolve difficult issues of witness credibility and state of mind.

“The evidence about the Jus Brothers served not only to destroy defendants’ credibility and paint them as violent, but also to bolster the credibility of prosecution witnesses who were otherwise suspect,” Cantil-Sakauye said.

While there was strong evidence that Prater stabbed Mark Donahue, who died from his wounds, the justice explained, the irrelevant testimony about the Jus Brothers and Hell’s Angels may have persuaded jurors to find Prater guilty of murder rather than a lesser crime. And in Memory’s case, she said, there was conflicting evidence as to whether he stabbed one victim and “hotly disputed” evidence as to whether his stabbing of the other victim was in self-defense. 

The case is People v. Memory, 10 S.O.S. 1235.


Copyright 2010, Metropolitan News Company