delivered the opinion of the court:
Defendant, Hector Maisonet, who at the time of the offense involved was an inmate at the Pontiac Correctional Center, appeals his conviction and sentence for committing an aggravated battery upon a guard at the Center. At the jury trial, over defense objection on grounds of materiality, testimony was introduced that at about the same time as the offense, another guard was similarly attacked. Later, without objection, an investigator for the Center testified that in his opinion the two attacks were related. Without objection, the investigator gave the following reasons for his opinion:
“Mainly it was the same organization. The Latin Kings were involved with both incidents. Anyway, the people that wеre picked out as being the perpetrators were both Latin Kings and then also later we learned that another organization had given the word to hit some officers on thаt particular day.”
No other evidence was introduced that either defendant, or whoever committed the other attack, were Latin Kings. We recognize the difficulties of gаthering evidence and presenting cases involving offenses committed against prison personnel. Nevertheless, we conclude that the grossly improper nature of the foregoing testimony created plain error requiring reversal and remandment for a new trial.
Defendant was indicted in the circuit court of Livingston County on November 1, 1984. On December 17, 1984, on dеfendant’s motion, the case was transferred to the circuit court of McLean County. At the completion of the jury trial, the judgment of conviction was entered on February 14, 1985. On April 2, 1985, the court sentenced the defendant to four years’ imprisonment. On appeal, defendant makes the single contention that introduction of the foregoing evidence deprived him of a fair trial. As indicated, we agree.
The evidence of defendant’s guilt was fully sufficient to support the verdict but was not overwhelming. Most of that proof came from the tеstimony of the victim, Randy Arnold.
Arnold testified: While on duty on August 3, 1984, he was shutting the gate at the level of galleries 7 and 8. After he let two inmates through, he was hit twice on the head from behind. The second blow came from a clothing bag which had a hard object in it. He fell from the first blow, turned to his left and put his hand above his head. He could see the person wielding the clothing bag, and defеndant was that person. Defendant and the individual with him went toward gallery 8. Two officers responded to his call for help, and, after locking the gate, he walked down some stairs to mеet them. He was bleeding extensively at the time. Later, when shown pictures of some 500 inmates, he picked defendant’s picture as being that of the person striking the second blow.
Arnоld admitted that he had stated after the attack that the person hitting him with the bag lived in gallery 5. The evidence indicated that defendant lived in gallery 7. Defendant denied attacking Arnold. Both he and inmate Randy Ruiz testified that defendant was in Ruiz’ cell on gallery 5 at the time of the offense. However, Officer Kevin Hannon testified to having seen defendant on gallery 7 shortly before the attack. However, Hannon also testified that he was stationed in a position to see part of Arnold’s body at the time of the attack, and from where he stood, it appeared that the second blow to Arnold came from a thrown object and not from a clothing bag.
The question of the propriety of the evidence concеrning another guard having been injured at about the same time as Arnold was raised in defendant’s post-trial motion and argued. The trial court indicated that it was admissible to show defendant’s modus operandi or intent. In People v. McDonald (1975),
The first testimony concerning the attack on the other guаrd came from Correctional Lieutenant James Reid, called by the State. He stated that he saw another officer being treated and was told that officer had been attacked by an inmate. The only objection made to this testimony was that it was immaterial. Thus, the hearsay infirmity was probably waived, as was any lack of foundation for the testimony. As we hаve indicated there might have been some materiality and relevancy to this evidence if properly connected to a conspiracy theory. In any event, at this stаge the prejudice to the defendant was slight, because the fact that some officer might have also been attacked would not appear to influence the jury’s determination as to whether defendant had attacked Arnold.
Substantial prejudice did result when the State attempted to show the relationship between the offenses through the opinion testimony of Investigator Irvin. We are unaware of any case permitting an opinion to be given by a witness as to whether two offenses of the simple nature of an aggravated battery are related. When such an opinion is based on hearsay, the impropriety seems obvious.
Investigator Irvin’s opinion was based on the assumption that defendant and whoever made the attack on the other guard were both members of the Latin King group. Evidence was presented that Hector Sanchez was with defendant at the time оf the offense and that he was a Latin King. However, no evidence was presented that either defendant or the other assailant were Latin Kings. Any opinion by the investigator that, bеcause they were both members of the same gang, there would more likely be a relationship between the offenses would be so obvious that neither lay opinion nor exрert opinion would be of aid to the jury. See Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971),
Moreover, the opinion was basеd on apparent hearsay indicating that defendant and the other assailant were members of the same gang. If Irvin is to be considered a lay witness, clearly no opinion сould be based upon hearsay. Under the circumstances here, he could not base his opinion on hearsay even if he were an expert. Under the doctrine set forth in Wilsоn v. Clark (1981),
The major vice in Irvin’s testimony, and that which raised it to the level of plain error, was not that the jury heard an imprоper opinion that the two crimes were related. Rather, the vice was the unsupported assertion that defendant was a Latin King and, therefore, likely to have committеd the battery. Irvin’s testimony also created an improper innuendo that, because defendant and the other accused were both identified as the attackers, they were guilty of the offenses. The State appears to contend that evidence concerning defendant’s gang membership was rendered permissible because the defense produced evidence that Sanchez was a Latin King. The principal issue is not whether evidence of defendant’s possible gang membership was proper. The issue is the propriety of the method by which the State attempted to prove it.
We consider error arising from Irvin’s testimony even though it was not raised in the trial court because of the power given us by Supreme Court Rule 615(a) (
Accordingly, he is entitled to a new trial. We reverse and remand for such a trial.
Reversed and remanded.