A robbery suspect may be feeling blue after an appeals court said Tuesday that a Yakima County, Washington judge could allow testimony that he was dressed like a Smurf.
Ernesto Ruiz Cervantes, 21, is currently serving eight years in prison for attacking another youth in Wapato in a 2009 robbery.
The victim testified that he was riding his bike home just after midnight on New Year’s Day when a car roared up behind him, causing him to crash.
A young man he knew as “Smurf” jumped out the vehicle and, holding a knife, demanded, “What do you bang?”
The unnamed victim denied being in a gang. He testified that “Smurf” robbed him of his iPod and other possessions and punched him in the head. Cervantes was prosecuted after the victim later identified him as “Smurf.”
Besides being identified with the cartoon Smurfs, blue is widely associated with Sureo gang members.
Cervantes complained in his appeal that testimony about his nickname and blue clothing was prejudicial. Superior Court Judge Michael McCarthy allowed it, thus, he lamented, constituted an abuse of discretion.
Usually, gang affiliation would be protected free speech, but might not be it it went to motive, said the Division III Court of Appeals in Spokane.
Prosecutors used the testimony about Cervantes being called “Smurf” only to establish the identity of the robber, the court added.
The victim and the police alike knew Cervantes as “Smurf.” He seems to dress like one as well, with blue shoes and a blue belt. Mushrooms similar to those in Smurfs engraved on his belt buckle.
“The fact that the defendant was also dressed in Smurf attire when arrested further established the identity of the robber,” appeals court Judge Kevin Korsmo wrote.
“The evidence was admissible and highly probative. The prejudicial impact was comparatively slight,” he added.