by Lonnie Burton

On November 17, 2016, the Supreme Court of New Hampshire affirmed the murder conviction of a prisoner who killed a fellow prisoner. In doing so, the court held that evidence of the defendant's gang affiliation, and the gang's structure and rules, etc., were properly admitted at trial. The defendant had argued that the prosecutor unfairly attributed the gang evidence to him.

The murder occurred at the Hew Hampshire State Prison on July 26, 2010. According to court records, Thomas Milton was a member of a prison gang known as the Brotherhood of White Warriors, or BOWW. Milton was ordered by higher-ups in the gang to assault another member who had allegedly snitched. Milton and another prisoner struck the victim in the head and face until he was dead.

Prior to trial, the State moved to admit evidence relating to BOWW's existence, organizational structure, membership process, and culture, as well as Milton's affiliation with the gang. Milton objected to the evidence, arguing that it would be more prejudicial than probative and violate New Hampshire Rule of Evidence 403.

At trial, a gang expert testified that BOWW members -- all white males -- formed the gang in 2005 to protect themselves from other prison gangs, that BOWW shares a "white supremacy" ideology, and that members must abide by certain rules (such as not snitching). The expert testified that a member's failure to follow the rules results in a "violation" with punishment ranging from "a punch in the ribs" to "really anything." The expert finally testified that gangs usually intimidate witnesses, so such cases are normally difficult to investigate and prosecute.

The jury convicted Milton of second degree murder and assault by a prisoner. His appeal went directly to the New Hampshire Supreme Court, who affirmed. Milton argued that the trial court erred in admitting the gang evidence, in that his association with the BOWW had no relevance whatsoever to the crime charged.

In affirming the conviction and rejecting Milton's arguments, the high court said the evidence was probative of Milton's motive and intent, as well as witness credibility.

"A jury could infer from this evidence that BOWW was likely to respond with violence to defendant's failure to follow orders and to the inmates' 'ratting,'" the court said. The court further held that this inference "limited the prejudicial impact of the expert's testimony that BOWW members generally share a common white supremacy ideology and that BOWW generally responds to rule violations with violence."

Finding that the expert gang testimony was unlikely "to provoke the jury's instinct to punish," and was probative and relevant to Milton's motive and intent, the Supreme Court approved the use of the gang evidence and affirmed Milton's convictions. See: State of New Hampshire v. Milton, No. 2015-0289 (S. Ct. NH), November 17, 2016.

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