*1 of We now turn issue whether defendant was greater proven After careful of guilty beyond reasonable doubt. review the evidence at trial and the record on presented appeal, conclude that there is more than from sufficient evidence which the could jury defendant, have concluded that without committed justification, lawful fact, probability did, act which created a strong killing kill Kenny jury chose to Wayne. believe State’s version story different, incident. While defendant’s it is the function quite of the jury determine the of witnesses and con credibility resolve (People 489, 296.) flicts. v. Jordan A re viewing finding court will disturb a where the guilt only unreasonable, unsatisfactory or so as to a reason improbable, justify able guilt. doubt defendant’s Crews 38 Ill. 2d (People 451.) In case judice, sub the evidence leaves no guilt. reasonable doubt light of the circuit foregoing, judgment court affirmed. County
Cook affirmed.
Judgment CERDA, JJ.,
RIZZI and concur. ILLINOIS, THE PEOPLE THE Plaintiff-Appellee, OF STATE OF COLON, Defendant-Appellant. JOSE (3rd Division) District First No. 1 — 91—3119 30, 1993. Opinion filed June *2 P.J., TULLY, dissenting. Churgin, Assistant Public Defender, Chicago (Ira Fry, A. Public
Rita Defender, counsel), appellant. for Goldfarb, O’Malley, Attorney, Chicago (Renee
Jack State’s William counsel), Carroll, Toffenetti, Attorneys, of L. Assistant State’s William People. opinion GREIMAN delivered the of the court: JUSTICE charged with the of Rafael Defendant Jose Colon was murder Iverson, murder of re- attempted Matamoros and the Nathan both trial, At from the same incident. defendant’s first sulting to jury guilty attempted found him not murder and was unable charge. trial, reach a At verdict as to murder his second found of murder and sentenced to 50 guilty years was prison. error alleges (1)
Defendant allow evidence admitted; (2) allow evidence of another shoot- ing. companions of the victim in the same later in the same locale with evening charged which defendant and no evidence was offered involved; (3) that defendant was to instruct jury offense; defendant made a statement relating (4) introduce witnesses, testified, evidence that hearsay other than those who offender; identified defendant (5) to sentence defendant to 50 years.
We reverse defendant’s conviction because the State improperly *3 introduced extensive gang showing evidence without the of proper relevancy and a continually promoted gang motive for the shooting so that of evidence membership completely pervaded defend- ant’s trial deprived and defendant of a impartial hearing. fair and
On September Rafael p.m., 11:30 approximately Matamoros, Nathan Iverson and people gathered several other were around a car parked in front an As elementary school. Matamo- ros sat on the car his a street, with back the car grey four-door with a blue top car, and tinted the stopped parked windows next to and man put a his head out of the car window and then withdrew this, the darkness of the car. Immediately after a hand awith pistol in it shots, was extended from the window and fired several after which car off sped the down the street. one-way men car,
Two the the grouped around Rafael Matamoros and Iverson, shot, Nathan the been and Matamoros later died in hospital. some two group When friends from the the victims visited at the unknown hospital following incident, the fired individual shots at them left the hours they building early morning the 4,1990, September but no one was injured. that, away, from 3V2 feet approximately Daniel Rivera testified a, he recognize
he the car and man whom did not stopped observed of the for 10 seconds. approximately with his head out window left on he saw a only steering Rivera a arm the wheel before saw begin the Rivera then emerge rapid firing. from window and pistol ran. ducked and of the that he saw Jackson, another testified group,
Deandre the prior four to five seconds approximately the face for driver’s car after the when the shooting and for several seconds shooting not leave. immediately did stop that he also saw the approxi- stated car
Nathan Iverson he a arm gun feet from where stood and and mately three five emerge shooting. from the driver’s side window start description police When interviewed Iverson Rivera offender, Hispanics, were male white stated that there they old, descrip- no they give specific but could approximately years hair, or other characteris- height, weight, eyes identifying tions of time, description no or even give tics. At Jackson could However, identify did Rivera and Jackson race of the offenders. man in the driver’s seat in a and in court as the lineup car, Iverson could not. but Impala, the car was a 1970-76 Chevrolet Rivera stated that de- color. other witnesses’ four-door, light blue-green primer While somewhat, all they agreed of the car varied scriptions ac- arrested car in defendant was showing State’s exhibit night. the car had seen that they curately portrayed in denying erred judge the trial Defendant first contends when that evidence his motion to prohibit a motive for provide related shooting show that defendant was member introduced evidence The State victim, mem- although not a Gangsters; the Imperial shot; took shooting that the ber, when he was Kings was with Latin Im- Kings Latin and the and that the King territory; in Latin place coalitions. rival Gangsters were members perial shows only this evidence Defendant contends in rival and is not sufficient gangs motive for membership was the related or that *4 affiliations, activity or involvement
Evidence is of fact that any it make the existence if tends “to relevant or probable of the more to action consequence the determination 145 less it the evidence.” v. probable People than would be without 461, 460; 480, People Lucas Ill. 2d 603 N.E.2d v. (1992), 151 Smith 40, 58, 900; 565 Carson (1990), People (1992), 141 Ill. 2d N.E.2d v. 457, 464, 238 363. App. Ill. 3d 606 N.E.2d activity provide to a motive Evidence admissible act, inexplicable otherwise but such evidence is admissible only such or activity where there is is related to proof charged. Smith, 58; at crime with which defendant is 141 Ill. 2d App. 499, 505-06, Ill. People (1992), v. Nichols 3d 601 N.E.2d 1217; 139, People (1992), 127, v. 3d 595 N.E.2d App. Silva 1285. murder,
Motive is not an element essential crime in obligation the State has no to order to sustain a conviction of murder. to gang-related While evidence tends relevant, show may evidence, a motive be admitted as to be must, slight considered at competent, degree, least tend es tablish the existence of the upon alleged motive relied and it must be People established defendant knew of those facts. Easley 1036; People 148 Ill. 2d 592 N.E.2d 475, 499; 470, Maldonado App. 3d Car son, Ill. 464.
Two cases help distinguish
when
admissible:
Easley
(148
(151
Ill.
1036)
Lucas
Ill. 2d
461,
In Easley, the supreme relating court found the evidence gangs admitted because the improperly State failed show defendant had participated or knew of a or in- gang conspiracy tent victim; rather, to kill the merely provided State testimony by correctional officers their opinion that was that defendant was a gang (Easley, 328-29.) However, Lucas, member. 148 Ill. 2d at gang evidence was admissible since the State was able to demon- strate that defendant conceded he was a member and there plan against evidence he knew of a prison to retaliate officials
146
Lucas,
even to a facts or circumstances the tive and that defendant knew that shoot gang here was related or related. ing gang related was intended gang was Lucas that distinguishable This from other cases besides case is (238 466), Ill. 3d at where App. admitted evidence: Carson gang knew prior he a member and that he gang defendant admitted was codefendant, had shot at a shooting allegedly to the that the victim at retaliate; App. 506), Ill. 3d where (235 who intended Nichols member, gang the he a the shooter shouted defendant admitted was at the time of bragged and defendant gang firing, a name before (231 Ill. had killed two Silva just people; the occurrence that he slogan shouted a before 139), gang 3d at defendant App. where a gang evidence that defendant was ample there was shooting and Buchanan activity; People and v. gang-related in a member involved 305, 344, there was 320, 570 where 3d (1991), App. his that defend gang, defendant was still active in evidence that insignia, gang’s a rival building recently by ant’s been marked gangs. the two dispute and there was an active between time; signs Here, gang at no slogans any no were shouted gang shooting; for the and flashed; no claimed credit gang were member encounter was recounted. gang-related no previous precipitating of was a member Rather, alleged accused all was showing After rivaling companions. that of the victim’s gang a vic- merely State that the membership, argues defendant’s at the- time of in Latin Kings territory tim and were companions his for While making targets them defendant. thus shooting, there with a gang, admitted his affiliation may defendant here have shooting as related. directly marks this was no evidence that 3d upon People relies Norton State for establishing motive a relevant which found affilia- The evidence admitted was officer that the area police a testimony by tion and common drive-by shootings were and gangs frequented by court that Norton disagree must with view there. We drive-by is the site of gangs and frequented by when area as enough that is allow evidence shootings, for a crime committed in area. Lucas, and Easley supreme rulings We follow court’s demonstrating sufficient evidence find there must be Smith that
147
or
ac-
that the crime at issue was related to
involvement
was in-
gang activity
the defendant was aware that
tivity
326; Smith,
Lucas,
480; Easley,
Ill. 2d at
volved.
Ill.
We we Although power gangs the influence and in our urban areas. dare not cities, are a engaged in battle the streets our use a guilt justice system. association as tool our criminal acknowledged deep
Courts have wide- consistently of an ac- spread attaches to the disclosure prejudice automatically evi- gang-related cused’s affiliation with a street gang, why particular dence must in a particular be relevant Ill. (People crime. Gonzalez *6 864; Smith, 58; Carson, 464; 141 Ill. 2d at at Nich- App. 3d ols, at though Even 505.) gangs virtually exist large areas, all belong urban all criminals to and to al- gangs, general low testimony regarding gangs, without evi- specific to relating dence the crime in question, prejudice is to a unduly defendant.
While Rivera and Jackson were two eyewitness who identified defendant as the shooter and identified defendant’s car as the vehi- cle they saw at the time of the shooting, we find it error reversible where the State to was allowed introduce extensive evidence activity, nonspecific to crime with which defendant was throughout charged, support the trial to its gang theory. Defendant was cumulatively prejudiced evidence, such and by we cannot that say the State’s evidence is so that it overwhelming can overcome such pervasive The at ar- prejudice. agreed State oral gument that Thus, the evidence was not “a we re- walk-over.” must verse and remand for new trial.
The second issue defendant raises is that evidence of a sec ond drive-by shooting was improperly introduced when defendant was not there charged connecting and was no evidence defendant with that shooting.
The trial court allowed the State to offer evidence friends of the victim were at shot within several hours the first shooting they left the to hospital which the victims had been The taken. court allowed State to introduce the incident “establish it is in a such and such territory” but that the court would “sustain objection being there of who any shooting indication
because there no shopting.” evidence who did do the stated, only have evidence admissible when there As we demonstrating gang activity that the relates sufficient evidence ac charged to the crime and that defendant was aware 480; Ill. at Easley, 151 Ill. 2d at (Lucas, was involved. tivity 326; Smith, instance, no can see rele 58.) 141 Ill. 2d this second crime with which vance between the light defendant fact charged, particularly un acknowledged identity court that the the second shooter was to the later linking no defendant known there was car, which several of shooting, as an identification his such witnesses could have identified. argues that the admissible show
The State evidence was However, motive and the territorial nature of warfare. defendant since we improperly prejudiced this admission of evidence requirements to requisite to make have found the State failed the jury and the reasonable connection only admit such evidence in the second was somehow involved could make was that defendant trial error for the court charges next that was Defendant made defense defendant jury objection instruct the over ” a to the case. relating “statement to the shoot- days prior that two The State introduced evidence member; af- days he ing, admitted that ex-gang that he was an member. shooting, ter the defendant stated no other statements made defendant. The introduced State the jury: trial court instructed the defendant made “You have evidence that you before charged offense in the indictment. relating to the statement whether the defendant made you It is for determine *7 to the so, weight given if should be and what statement to a given state- determining weight the statement. under all of the circumstances ment, should consider you it was made.” which solely relate his statements argues that because two
Defendant the to con- jury instruction to the trial court’s gang membership, the was “related to offense” defendant’s statement sider whether thus to consider defendant’s instruction improper. was in State’s case part the were admitted
The statements regarding gang evidence testified chief. Officer Dombrowski that to the days prior him two that defendant told stated the investigated Finnelly Gangster. he Officer Imperial was an territories, that, upon testified as to and stated ob- shooting, shooting, the defendant serving days defendant in his car after ex-imperial Gangster. stated that he was an instructions the trial court. Jurors are assumed to follow the Ill. 2d In the (People 532.) v. Jenkins case, it clear the two at issue relate to present statements though Even the whether defendant was activities. involved jury of the allows the language instructions determine whether all, those defendant made the statements find statements were part gang-related admitted as of the evidence tes- improperly timony. reject argument
We the State’s instruction should have permitted goes been because it to the of its theory case since we have found the State failed to sufficient evi- present dence that a Such an only motive was involved. instruction adds to the cumulative from the prejudice suffers State’s pervasive implications of gang involvement.
Defendant next argues that it was for the trial improper court to allow an officer to that two testify persons, other than the trial, witnesses who testified at identified defendant as the of fender.
On the State, direct examination Officer by Paulnitsky testified that defendant by was identified Rivera and lineup Jackson. On cross-examination, the lineup officer testified individuals, also by viewed two other Gabriel Gonzales and Marvin King, but the officer did not they state whether made an identifica- tion. redirect, On if when the State asked either Gonzales or King identification, made an the officer “yes” answered over defendant’s objections. Then the State if “anyone” asked officer was ar- gave rested and the officer defendant’s name. argues
Defendant that he by informing jury only person the State also charged, explicitly jury informed the King him, and/or Gonzales had identified since jury already they knew that from the person lineup. identified Defendant argues thus that it is hearsay admit those witnesses’ testimony where he not have an to cross-examine them. opportunity
Hearsay of an testimony out-of-court statement offered to asserted, the truth matter rests value upon the of the credibility (People out-of-court declarant. v. Miles 891.) fundamental purpose hearsay rule to test value ex- by of assertions posing the source of assertion to party cross-examination *8 150 (1984), it v. 103 Ill. 2d
against People whom is offered. Holman 133, 148, N.E.2d 119. 469 spe- it not may hearsay though constitute even does
Testimony statement, if the the content of the out-of-court cifically mention Holman, 148; Ill. v. People infer the intent. 103 2d at jury may 246, 243, N.E.2d 76. (1976), Warmack 44 Ill. 3d 358 App. it serves as a identification is reversible error when
Hearsay is used for courtroom identification when substitute identification; if, however, the or corroborate a weak strengthen a positive or is identi- testimony supported by cumulative merely circumstances, it constitutes fication other corroborative 426, Ill. App. harmless error. v. 3d People Johnson 1041; 667, 676, Lopez App. 152 Ill. People v. 862; App. People Anthony (1980), 504 N.E.2d 757; 247. Warmack, 3d at identifica- testimony hearsay here that such constituted We find errors, free of other If this case had been tion of defendant. not since it might find error alone is reversible might that this positive Rivera’s of Jackson’s and merely considered cumulative and defendant’s car at scene of of defendant identification However, we have found the cumulative given prejudice crime. evi- arising out of the allowed against improperly decedent dence, only prejudice denying this error adds to we find impartial fair and trial. defendant a dis- the trial court abused its
Finally, defendant contends that years alleging him 50 prison, cretion when it sentenced not dis- all factors. We need mitigating the court failed consider remand conviction and this issue since we reverse defendant’s cuss for new trial. reasons, re- conviction is foregoing
For all of the defendant’s trial. and the matter remanded for new versed Reversed remanded. J.,
CERDA, concurs. TULLY, dissenting: PRESIDING JUSTICE the ad- view that majority’s from respectfully I must dissent reversal evidence warrants gang-related mission conviction. As Easley misplaced. People reliance majority’s upon mo- notes, obliged prove the State is correctly
the majority conviction; however, where the in order to sustain murder tive the State undertakes prove State chooses to motive and then accused “it must be shown that conspiracy, 148 Ill. 2d comprising conspiracy. (Easley, knew facts” *9 those the on that theory In State the a 326-27.) Easley, proceeded at inmate, in a gang conspiracy acted accordance with prison Easley, State victim, officer. Because the could to murder the a correctional or gang meetings invited to oth prove that defendant been of in the con participation knowledge erwise or prove held gang membership the admission of was erroneous. spiracy, the State Thus, the State undertakes to facts which prove when charged, asserts a motive for the crime it must be shown constitute People that the of (See accused knew those facts. Smith Smith, 908.) gang-re- In the court held inadmissible, lated evidence to be was no where there basis infer a particular gang defendant knew about conflict or was in fact associated with any gang. case,
In the the instant State not undertake to any particular plot conspiratorial would theory, required have specified knowledge Rather, actions or by defendant. the State pro- ceeded on a much simpler, straightforward defendant, theory: by who his own admission was of Gangsters, a member the Imperial entered the a territory controlled rival by gang, Kings, the Latin and upon seeing of members the Latin a car Kings sitting on in School, front of Lowell fired a of from round shots a car. passing motive, Aside from a this was an otherwise inexplicable mur- Moreover, der. the theory of a gang-related shooting was further by subsequent corroborated the unexplained shooting of the victims a third, by unrelated left the they hospital where they had been treated. The hospital territory located within the con- trolled by the known as the Dragons. Dragons The are allied with the Imperial Gangsters Kings. and are rivals of the Latin
Any evidence which tends to show that the accused had a mo- killing tive for the victim is relevant. order such evidence to competent, must, slight at least to a tend degree, to establish the Moreover, existence of the upon. motive relied gang-related evi- dence has been held admissible gang rivalry where central motive in People Campbell a case. See 597, 597 820.
It would majority recognize behoove members large control ruthlessly portions City and terrorize of Chi- cago brought and have about many neighbor- the demise of decent in rival Gangs engage killing
hoods. senseless bloodthirsty, of their status a rival or be- simply members because a The mo- gang. cause have entered controlled rival they territory State this motive of territorial general tive instance case, Easley warfare unlike the motive in very specific to kill the vic- alleged specific plot where the State existence tim. proved trial that defendant presented sufficiently evidence mem- were Imperial Gangsters, a member of the victims terri- and that took on the Kings place the Latin
bers Kings. sufficiently proved Latin The State also tory Therefore, as to of all of these facts. defendant was aware territorial control was introduced gang membership properly gang-motivated show that this was a *10 ILLINOIS, Plaintiff-Appellee,
THE THE STATE OF PEOPLE OF MEEKS, Defendant-Appellant. PHILLIP 1—91—1192, (3rd cons. Division) Nos. First District 1—91—4123 30, 1993. June Opinion filed