*1 sub- cannot the Commission’s decision that no necessary. say We stantial issue of was in or that any pro- fact law existed error due violation cess occurred. The surrounding facts were not plaintiff’s layoff disputed.
question of to a presented law resolved reference resolution section re- language budget 302.540. Whether a crisis which sulted layoff hundreds of constituted “extraordi- employees conditions” hear- nary operating question was not which required ing prior its resolution.
For reasons, Com- foregoing above and we conclude that the mission’s decision IDES ICMS did not violate section capricious 302.540 is neither nor and we affirm the trial arbitrary court’s plaintiff’s order upholding termination Commission.
Affirmed. COCCIA,JJ.,
LORENZ and concur. ILLINOIS, THE THE PEOPLE STATE Plaintiff-Appellee, OF OF GONZALEZ, FREDDIE Defendant-Appellant. (6th Division)
First District No. 1—87—0550 Opinion 8, 1989. September filed *2 J., QUINLAN, dissenting. Defender, Stone, Chicago (Thomas J. Brosnan N. Public
Randolph Eisner, Defenders, counsel), appellant. for Public Emily Assistant Partee, (Inge L. Attorney, Chicago Fryklund, Carol Cecil A. State’s Gaines, Slivnick, counsel), Attorneys, L. State’s and Sari Assistant People. court: opinion delivered the
PRESIDING JUSTICE EGAN Gonzalez, defendant, guilty by The Freddie was found to im battery; and he was sentenced aggravated armed robbery sufficiency 4x/2 No issue made years. prisonment his identifica was based on against The case the defendant evidence. Asia, and statements complainant, Jose tion police. made in made an oral motion began,
Before introducing any be prohibited State limine requesting with a way affiliated any defendant was testimony iden- used to photo books regarding any testimony and that gang. Cobras reference to exclude tify the defend- testimony regarding allow held he would judge showing ant’s for the limited gang membership proce- dure leading and circumstances to his identification.
Asia testified that on at about 1:20 September p.m. there, went home from school. After a little time he went to spending the home of his friend Kenneth at 2321 N. Albany Chicago. Siaz Siaz had a racing new worth about which he allowed Asia bicycle $200 to borrow.
Asia took the bicycle neighborhood for a ride around the at approx- imately 2:30 As he was in the street the 3100 p.m. riding through Belden, block of West he saw a of 8 to group boys standing sidewalk in front of a building. burned-down He knew one of the there, boys standing and his name was Pony Boy. Asia had lived neighborhood for years five before out the He moving previous year. continued to visit had seen everyday previously group of individ- uals in front of the building burned-down who “represented” were members of the Spanish gang. Cobras so They “repre- would sent” out their by yelling gang name and making signal hand like a “C.” On the day robbery burned-down had an “SC” building with pitchforks written on it. That symbol meant Cobras to him.
After riding building, Asia’s friend him. Danny stopped Asia was about three houses with his away back to the burned-down *3 He building. talked with minutes, for Danny five and left. Danny As Asia leave, was about to a he man later identified as the defendant came behind him up grabbed the bicycle’s handlebars. Asia was still sitting on the bicycle. He said that the defendant was “with the guys the group him, behind” but he could not for sure say where the defendant from, had come because he had his back to the defendant when he grabbed the handlebars.
He had never seen the defendant before that and after day, defendant grabbed the they handlebars were face to face and roughly two feet He apart. made an in-court identification of the defendant. He told the defendant it was his friend’s The bicycle. defendant threat- ened that if Asia did not him give he was hit bicycle going to him. Asia not give him, would it to and the defendant struck him with his clenched fist in the face below his left Asia remained on the eye. bicy- cle, and the defendant hit him a second time in the forehead. After receiving blow, the second handlebars, Asia released his grip and the defendant rode off on the bicycle down Belden.
Asia returned to Kenneth Siaz’s house and the police. called When arrived, Officer Leo Velez him gave the physical description for a male Puerto Rican and a description clothing. of his He told Velez that day next Asia went to Spanish he was a Cobra. The thought robber Noon. He looked at station and met with Officer about photos men in a book. The book contained photographs young whites; however, as well as of the individuals were majority blacks He from the book. He photograph out the defendant’s Hispanic. picked a acknowl- belonged gang. did not know the defendant He whether give that color be- edged eye he did Officer Velez entire incident with cause he not tell what color were. The could identify lasted a minute. He defendant defendant did instead, prelimi- time he was at a lineup; next saw defendant He him hearing after the defendant had been arrested. identified nary at that time. forehead. bump
Officer Noon testified that observed on Asia’s con- He Asia two albums which gave Chicago police department photo of “self-admitted Cobra members.” photographs Spanish tained The court sustained the of the defendant and instructed objection follows: answer, gentlemen, “With the last ladies and respect to Cobras, these two books contain that of self-admitted the comment of stricken from record hereby self-admitted sus- hereby objection irrelevant the defense again, gentlemen, tained. I must remind once ladies and you Co- testimony concerning gang membership, bras, or solely of the defendant is admissible used in the circumstances and the procedures show in this the identification of the defendant case.” looking further testified that on after September Noon Guz- partner few he and his Officer John days, one two other white His- man saw him at 3800 Leland with West “If asked, [they males. the officers panic approached, As the kid’s robbery for that where took looking were] [him] [he] and took bike.” At the defendant under arrest point placed Noon Area 5 headquarters. him to after him his Miranda giving
Noon the defendant alone questioned told him he was on Belden for a second time. warnings per- to the on a He went bicycle. up Street when he saw a new “guy” get did not want to off get person son told him to off the bike. The *4 He then on the bike and got forced him off. so the defendant bike was, and where the bike it. Noon asked rode off with then it gave it for a kept day that he replied the defendant Gunner, Royals gang. of the Simon City a member person named recover unable to denied Asia. The were hitting bicycle. cross-examination, that he partner
On Noon testified and his did not have time to to the defendant he made the say anything before him looking statement if where asking robbery he took police report the “kid’s bike.” Noon out a typed supplemental after included the defendant’s state- questioning which bike, ment that he had taken the not hit the from whom he person did had taken bike gave City Royal and that he the bike to a Simon gang member named Gunner. consisted,
The defendant’s of a to the part, stipulation an testimony of official court who was at the defend- reporter present ant’s hearing at Asia was if it took the preliminary which asked answered, defendant five minutes to tell him to off the get bike and “or ten or so.” [minutes]
Officer Leo Veleztestified for the defense that he met with Asia at He approximately p.m. did not think that Asia him provided hair or color of the eye person who robbed him. Velez marked in his report that the hair and eye color were On cross-examina- unknown. ’ tion, he testified that Asia was all “hysterical, shook Asia was up.” to provide able a description of the robber’s clothes gave age, height and weight.
The defendant first contends trial court erred in denying his motion in limine and allowing State to introduce testimony the defendant’s gang affiliation with the Spanish Cobras.
The supreme court spoken has admissibility showing a defendant’s affiliation with a gang:
“To prevent the conviction of one accused of a crime
be
merely
cause of his
in an
membership
organization that is
unpopular,
is the thrust of
States
of mem
Rosenberg
proof
[United
v.]
bership is
if
admissible
there is also sufficient
proof
show
membership
charged,
related to the crime
for example,
common design
show
or purpose.” People v. Hairston (1970),
Ill. 2d
The potential for
prejudice
the admission of such evidence has
recognized
328, 331,
been
in People
v. Parrott
“It is that there common in large metropoli- street prejudice against gangs every spread in tan area America.” argued, the State and the evi- court, judge agreed,
In the showing dence was for the of the procedure admissible the identification. No Federal or leading circumstances to defendant’s is of gang court case to introduction of evidence support State cited leading to procedure affiliation to show the and circumstances the has none. defendant’s identification. Our research disclosed The to this by issue should be clouded reference evi concerning proof in the rule of other crimes or dence connection with issues addressed on hearsay with the rule. Those bemay connection is in another case. The narrow issue whether evidence day another prejudi When is relevant but prejudicial. was relevant to effect of cial, duty it is the the the judge weigh weight. relevance; and its But the first hurdle is probative not relevant and its prejudicial and we conclude that the evidence was proof Put the issue is whether way, effect was considerable. another is “related Spanish that the defendant was a member of the Cobras [or that it to the crime We conclude was not. charged.” relevant] in this is that argument The advanced State was “[i]t know to a necessary police to how were able obtain jury to of defendant and thereafter to be able find positive identification is that it (Emphasis added.) Our answer was and arrest defendant.” trial; to was a not a motion evidence. “necessary.” suppress This was whether Asia’s identification cor- The issue before the to rect, probable had cause arrest police not whether the acted Asia testified to efficiently. properly and not whether the police he characteristics gave physical description no need for wearing, and the but there was clothing “thought” statement that he the offender was a Cobra. Spanish thought to Asia argument The State’s reduced its essentials this: Cobra; a was a Cobra. Spanish defendant was Spanish Span- association right Since Asia was about with Cobras, ish have'been his identification right must about conclusion, To State’s to its syllogism logical defendant. follow the issue, per- where a witness should be other cases identification was an thought perpetrator that he testify, example, mitted to the person later ex-convict, or a if in fact it can be shown pervert, obvious, validity a As should be pervert. was an ex-convict or doubt, outweighed great preju- is heavily which we syllogism, dice to the defendant. of the defend-
Asia also testified about his identification properly ant’s in a the book picture necessity book. But there was no have one fur- containing pictures identified as Cobras. State ther tells us that Asia’s that he the man to be statement believed Cobra, Officer Noon “was able to narrow down investi- gation.” conclusion, Again argument logical follow the State’s to its offense, a trial of a an iden- person charged example, with a sex tifying would from a testify picture witness be able selection offenders, because, group photographs of sex the State would ar- gue, the police narrowed its search to known sex offenders. Cobras, judgment, our all references to the Spanish including
evidence of the actions of group persons calling out their *6 affiliation and making signs indicating they were of the members Cobras, Spanish were irrelevant and prejudicial. That evidence of the actions of the group introduced boys was as a circumstance that would lead to the inference that the defendant was a member Cobras, Spanish an inference of doubtful But it was also used validity. in a prejudicial manner in the arguments. final
In the argument the opening following occurred:
STATE’S gives ATTORNEY: “He the police description, a a physical description, him, and he tells I clothing description think he belongs or think he is a Spanish Cobra. And he ex- plains to you he made that statement. why Here’s a man young grew who inup neighborhood, spent who his summer there because that is where all his friends are and he knows about this particular group, Spanish Cobras, again your use com- mon sense. These kids neighborhood that live in the where these hang out groups know about these what groups. They they know do, they what represent signs and the use and the graffiti and the hassle they put up every with day.
DEFENSE ATTORNEY:Objection, Judge.
THE comment, COURT: That is sustained. The last the hassle they put with up every day, disregard instructed to that.” (Emphasis added.)
In an attempt to soften impact of the improperly admitted evi- dence, the defendant’s attorney argued not con- jury should vict the defendant because “he may gang” be member of a and that the gang evidence “has nothing to do this case.” The State now argues that that argument invited the remarks the assist- following ant State’s Attorney:
“STATE’S ATTORNEY: just got through telling Counsel has it is not a you Well, case. let me tell you this. It took a lot and say face this man on stand get for Jose guts he did—. Judge. Objection, ATTORNEY:
DEFENSE Sustained. THE COURT:
* * * to the police would he Why say STATE’S ATTORNEY: he didn’t robbery. Maybe this that he has committed officers he didn’t think would here. Maybe think Jose Asia would be testify. Judge. Objection,
DEFENSE ATTORNEY: THE COURT: Sustained. in this city. in a vacuum We don’t live
STATE’SATTORNEY: city ***. in the streets happens Youknow what * * * offi- Now, experienced is an STATE’S ATTORNEY: [Noon] information he had this crimes. He knew cer. He deals lo and be- Cobra and have been may that this person He out of the book. picked Cobra. He was hold, he is a to it.” in and he admits brought objection an court had sustained already of the fact that the spite in testi- the courage displayed remarks about the prosecutor’s occurred: following fying, overwhelming Based ATTORNEY:
“STATE’S [sic] in here and to come case, guts Jose had the the fact that ***. testify Judge. Objection,
DEFENSE ATTORNEY: That is sustained.” THE COURT: *7 the evidence that there no admissible that was We first observe he that he admitted nor any Cobra defendant was a that the Cobras; reject argument and we a was member attorney. the defendant’s were invited the remarks prosecutor’s 328, Ill. 3d App. (1976), v. Parrott People This case is similar use of unlawful was convicted 299, in which 352 N.E.2d included evidence admitted which testimony was Hearsay of weapons. as inadmissible the was held that The court of gang activity. was prejudi that the evidence ground on the additional and hearsay, 840. 46 Ill. 2d (1970), Hairston cial, v. citing People the evi here: to that made similar argument made an The State there intent of motive, and knowledge “the to show relevant dence was that rejected The court 3d at Ill. (40 App. officers.” arresting evidence, effect of the prejudicial that the emphasized and argument argument. improper State’s case, was accentuated in this The State relies upon People Rivera however, case, N.E.2d 1088. In that the State showed that leaders Kings defendants, the Latin mem had instructed who also bers of the a was Kings, selling drugs Latin execute man because he in an area gang paying under control their without dues. court that the evidence was relevant it indicated concluded because had not gang only provided motive for the murder but the weapons addition, executioners and their well. In one of the defend ants of gang conceded relevance affiliation in his case. we note that the made a establish- passing, State here point
ing, defendant, over neither nor his objection by that friend a a was member of of introduc- Danny gang. While State’s ing such any possible stigma evidence was to remove Asia that it defendant, was placing that any possible also removed motive would the admission of An justify argument the evidence. that this tes- of Asia was timony probative to counteract that Asia suggestion was intentionally lying implicate a rival member is considera- bly by the weakened fact that he was that permitted testify member, friend also a Danny Danny was not and did not testify. We do not agree argument the State’s the statement he gave to a member of bicycle gang pro- another vided the basis of the of the evidence. admissibility
Since we have determined that the evidence was prejudicial, issue becomes whether or not it so its admission requires a new trial.
The defendant does not contend that the evidence is not suffi cient to establish his guilt beyond doubt; a reasonable hold we it was. The an evidence consisted of identification an oral confes sion; evidence, each aspect admissible, but although had some affecting First, weakness its weight. there is an element suggestion in showing a witness a marked “Spanish book Cobras” after that wit ness has told the he thinks the perpetrator was Spanish Cobra. Second, the defendant was not identified in a lineup, but rather courtroom in preliminary hearing. Such identifications have been Last, explanation criticized. no given for failure to a lineup have identification.
Passing confession, is, on to the it was oral and at variance part, Moreover, with the testimony Asia. the officer testified that he thing put in his was that the defendant report said took bike but did hit victim and that he to a gave bike man named times; Gunner. The officer had taken written statements many normally, he either writes the statement out or has a by hand *8 neither fol- why procedure take He never reporter explained it. in this He wrote a summation of what the defendant lowed case. out said, never it to had what he had said. He showed “completely” him for sign nor asked it. No was made explanation sign or to ask him to his failure to show the to the defendant summary it. we mean suggest these observations do not testi-
By of Asia and Officer Noon be as not credible. mony disregarded should weaknesses, such We do mean to that their its suggest testimony, with were, does not constitute evidence. overwhelming re- note that in Rivera court reversed the conviction and We for a trial of the introduction of evi- improper manded new because of a part spite dence of affiliation on the witness’ husband gang made written confessions. also the fact both defendants had We for and remanded a new trial note that Parrott this court reversed affiliation because of introduction of prejudicial of the even evidence. discussing sufficiency without evi offering previously against practice We have warned admission, making and, impermissi for a after purpose dence limited v. Hunter closing argument. (People ble use of the evidence that in cases flagrant We said App. 3d In our this is such lead reversal. practice might judgment, fact, in this are even more grounds compel In for reversal case case. affiliation was admissible ling since receive a fair trial. In our defendant did not purpose. judgment, effect of the evi- In wew of the we take on position it is on. the argument, unnecessary pass State’s dence argument testimony of the officer that the books pictures hearsay contained the Cobras was inadmissible im- e-videncewas argument that an instruction on circumstantial properly given. reasons, court is reversed judgment
For these the circuit cause for new trial. and the remanded
Reversed and remanded.
McNAMARA,J., concurs. QUINLAN, dissenting:
JUSTICE decision of the as well disagree majority I Aviththe respectfully my opinion, judgment the rationale for its discussion. the trial court’s denial believe
court should be affirmed. re- limine, testimony admission defendant’s motion in its limited garding gang membership, the defendant’s *9 the leading the and circumstances to identification showing procedure defendant, Furthermore, of limi- the was to the extent that the proper. State, tation and the objected, was exceeded the by court the and the objection sustained instructed concern- properly However, the ing event, limited the I of purpose any of evidence. in am the opinion error that have occurred here was harmless might circumstances, error the under because the evidence of defendant’s guilt was overwhelming. I
Additionally,
not find
Parrott
40
3d
People
(1976),
do
v.
Ill. App.
328,
348,
299,
352 N.E.2d
or
Ill.
People
(1970),
v. Hairston
46
2d
263
840,
N.E.2d
which are relied
the
to
upon
be
by
majority,
apposite
fact,
this
In
situation.
believe that
cases can
be
readily
both
distin
guished
Parrott,
from the
In
the
present
charged
case.
defendant was
There,
with knowingly
and
an
possessing
selling
illegal shotgun.
the
State
case
the
apparently began
by introducing
its
the
of
testimony
officers,
arresting
concerning
who testified
memoran
department
dum which stated
sale of
gangs
occurring
firearms
was
by
within
city
the
and also included Mr. Parrott’s name and address as
of
part
(Parrott,
328,
the
Ill.
memorandum.
40
3d
352 N.E.2d
App.
It
appears quite clear
the
that this information was
opinion
charge
irrelevant to the
of
sale
completely
and
of the shot
possession
Moreover,
gun involved there.
the specific basis on which the evidence
was
by
excluded
the court there was
the
ground
on
the officer’s
testimony
impermissible
was
and not
hearsay,
gang
because
the
330,
nature of the testimony. (Parrott, 40 App.
Ill.
3d at
This is not similar to our case. In the Parrott concerning gangs evidence was introduced by testimony officers, and, there, as found the court for the purpose sole estab- lishing of gang membership truth and the defendant’s activity gang. That was not the case here. contrast to the reason 570 Parrott, here intro
introducing
gang
initially
victim,
duced
identifying the defend
ant,
regarding gangs
victim’s statement
was merely part
fact,
description
concerning
of his observations
the defendant. In
this
description subsequently led
the defendant’s identification
and,
descriptive
arrest. Such
information seems me most relevant
Thus,
here,
under circumstances such as those
most
it was
proper.1
evidence,
error for the
court
allow
it
though may
even
As this
noted in
People
have been
the defendant.
688,
(1987),
166,
Jones
3d
515 N.E.2d
“evidence of
App.
membership
proof
if there is
is related to
is admissible
sufficient
***
it may
the crime
and need
be excluded
because
charged
merely
ad
tend to
the defendant where it is otherwise relevant and
prejudice
697,
171;
Ill.
Jones, 161
3d at
at
see also
App.
missible.”
N.E.2d
1009,
Ill.
v. McClendon
People
(where
no error was found in
admission
the victim’s
testimony
slogans being
that he heard
shouted as
him
gang).
struck
and that
defendant was a member of a
*10
addition,
(1970),
In
I do not find that
v. Hairston
46 Ill.
People
840,
of
348, 263
a reversal
upon by majority, requires
N.E.2d
relied
the
the
ei
“gang
this case
admission of the
related” evidence
because
case,
gang
In that
the
found that the evidence of
actually
ther.
membership
admitted. The court stated
evidence
properly
was
least,
at
inference that there was
permitted,
introduced
reasonable
act,
noted
to
an unlawful
and then
design
common
or
do
performance
contentions,
the
that,
to the defendant's
where
evidence
contrary
admissible,
ex
activity is relevant and otherwise
it
not to be
gang
the
also have a
to
merely
may
tendency
prejudice
cluded
because
372,
854-55.)That court
(Hairston,
Furthermore, I Graham, find it is also that Professor noteworthy Evidence, on Handbook Federal on the admissi- commenting crimes, bility acts, evidence of other or wrongs, great observes that inroads rule of such upon prior exclusion of evidence has taken place under the rules fact, modern federal of evidence. In he notes that the Federal rule permits crime, the introduction of another wrong act unless the sole for the offer establish the Graham, for crime. propensity (M. Handbook of Federal §404.5, (2d Evidence at 200-10 ed. see 1986); also United States v. Ford (9th 1980), Cir. 632 F.2d there (where the court ob- served that rule is one of inclusion which admits evidence of “[the] other crimes where that tends to criminal except prove only disposition).”) Professor Graham makes a similar also observation Illinois Graham, 404.5, E. & M. Evidence Cleary Handbook of section *11 at (4th 162-69 ed. that 1984), again emphasizes where he evidence of crimes, other wrongs or acts is admissible where it is usually offered for any purpose other than to show a on the merely propensity part the defendant to commit the He further crime. observes there that the decision respect to the of such admissibility evidence will over- be turned if only there exists a clear abuse of Hence, discretion. it would appear that the admission of the evidence here was also consist- ent with the current admissibility view of of such evidence both in the Federal and State courts.
572 conviction, I of the defendant’s
Accordingly, find reversal holds, of the majority’s solely decision based admission evi dence relating gangs unnecessary. espe be unwarranted because, earlier, the cially unnecessary find reversal to be as stated evidence of the is clear. there is sufficient and guilt defendant’s When establishing guilt evidence a defendant’s a reason competent beyond doubt, there that an error was showing alleged able has been no verdict, basis for the the error is harmless and reversal jury’s 1075, (See (1986), not warranted. v. Johnson 150 Ill. 3d People App. 1083, 304, shown, 502 I do not has 310.) N.E.2d believe show, or could error here formed the alleged basis Furthermore, jury’s suggests verdict. to the extent the majority discounted, of the State’s should portions apparently be not credible because was inconsistent with normal prosecution this is not a issue to be decided this court.2 Res procedures, proper by olution of factual and the assessment of the is for disputes credibility not jury appeal and will be on unless evidence is so overturned that a unsatisfactory improbable or reasonable doubt defendant’s 309, 315, guilt (1982), remains. v. Williams 93 Ill. 2d 444 (People 136, here, for, N.E.2d This was not the case as noted the ma itself, the defendant did not contend that the evidence was insuf jority ficient to guilt beyond Consequently, establish his a reasonable doubt. here did not require error was harmless and reversal. reasons,
For these I would affirm the of the trial court. judgment however, majority, 2 The states that it does not mean that the evidence should be credible, weakened, disregarded only majority’s as not but it is so that in the view, overwhelming. Respectfully, legal signifi this evidence was not I do not see the First, not, procedures employed cance nor does the of this distinction. here are were, majority say they (i.e., mandatory improper not some conformance with unconstitutional, conduct), illegal, require standard of so that their use alone would procedures just procedures procedures a reversal. The normal or the best Second, weight given question available to the State. to be to the evidence is fact, proper also a function of the or trier of and the decision of the trier of fact against weight appeal should not set aside on unless the verdict is the manifest be (1988), 946-47, (People App. the evidence. v. Hermann 3d 536 N.E.2d 711.) Finally, simply a conviction also should not be set aside because the evidence dissent, but, my overwhelming, set aside as observed above should be (1986), guilt. (People where there is reasonable doubt Jaffe Moreover, 840, 847, 600, 606.) arises on Ill. a reasonable doubt when, viewing light prose appeal only all the in a most favorable to the after cution, crime fact have found the essential elements of the no rational trier of could 12, 43-44, beyond (People Ill. 2d a reasonable doubt. v. Jimerson not, 889, 903.) majority opinion, as noted the situation here. N.E.2d This was