*1 this intolerability. its utter As court stated in Crews 42 Ill. 2d 66: child,
“Society outraged the murder is but in crime, determining for the must punishment care be punishment appropriate taken to insure is doing justice consideration just. must include a background punishment.” and circumstances which affect I above, For the reasons set forth do believe that the circum- death is an sentence under appropriate I of this case. dissent from af- accordingly stances death sentence. firmance defendant’s and CALVO this join partial JUSTICES CLARK concurrence and dissent. partial
(No. 66001. ILLINOIS, Appel- THE STATE OF THE PEOPLE OF lee, SMITH, v. STEVEN Appellant. 21, 1990. Rehearing denied
Opinion November filed February 1991. *5 MILLER, J., dissenting. *6 Defender, of Stone, Chicago Public N.
Randolph Defender, counsel), of Alwin, P. Assistant Public (Ronald for appellant. General, of Attorney Springfield, F. Hartigan,
Neil Attor- O’Malley, Partee and Jack State’s Cecil A. Madsen, M. Assistant Attor- (Terence of Chicago neys, Goldfarb, Assist- and Renee G. General, of Chicago, ney McGuire, Jean T. Special Attorney, ant State’s of for the counsel), People. Attorney, Assistant State’s of the court: opinion RYAN delivered JUSTICE of in the circuit court Cook trial Following jury defendant, Smith, was convicted of Steven County, Willis, State, seeking Jr. The of Virdeen murder sentencing hearing. a separate moved for death penalty, for the sentencing his right jury waived Defendant found the exist trial court of phase proceedings. Stat. factor Rev. (Ill. of a statutory aggravating ence determined defend ch. par. 1(b)(3)) 9 — end At the for the death eligible penalty. ant was trial hearing, court found sentencing bifurcated to preclude factors sufficient mitigating were no there the court Accordingly, the death penalty. imposition was stayed The sentence defendant to death. sentenced to this court direct (107 appeal Ill. 2d R. 609(a)), pending (107 Ill. R. 603). 2d We reverse defendant’s conviction of murder and this court remand cause to circuit Cook for a trial. County new court,
Before this raises numerous issues defendant both the trial and concerning sentencing be- proceedings low. Defendant it argues that was reversible er- initially ror for trial court admit of the victim’s evidence attitude toward and treatment of gang-related activity and of the victim’s altercation with a leader. gang Defendant next asserts that he was unfairly prejudiced by certain remarks of prosecutor during opening statement and closing argument. Defendant further as- serts that it was reversible error for the prosecutor suggest, in closing argument, that several of the State’s witnesses had been threatened and forced to leave Chi- Defendant cago. that the argues cumulative effect evidence of gang-related and of the activity prosecutor’s to the argument jury deprived defendant due process. Defendant further that a posits incident prison report admitted into evidence was admitted under improperly the business records exception to rule hear- against Defendant say. raises numerous other issues from arising both his trial and sentencing disposition but our hearing, *7 of this case obviates the need to address those issues.
At murder, victim, the time Willis, Virdeen Jr., was an assistant warden at Pontiac Correctional Illinois. Pontiac, Center in On the of June evening friend, Howland, Willis his Robbin drove Chicago. They went into the Shamrock a bar Lounge, owned Willis’ cousin his car in by Maggie. parked Willis a vacant next to lot the lounge.
Hasan Ali was tending Lounge bar at the Shamrock that evening. Willis and Howland were at bar. sitting Ali testified that he noticed three men enter the bar and sit at a behind identi- table Willis and Howland. He later fied defendant, the men as Herbert Stevens and Robert
Spade. wearing jacket, Defendant was black leather pants, black black shoes and black with a short cap beak that Ali testified Stevens and evening! Spade that were also Ali that clothing. dark testified as wearing defendant, table, sat at and Spade Stevens they all “like at facing they looking directly were Willis was Ali him.” further stated that he a .38-caliber picked up revolver, bar, it his which he behind kept put because he were there to rob the pocket thought they place.
Meanwhile, near Carraway walking Rhonda Shamrock her a friend’s house. As Lounge way met whom she walking, Murray, she was she Treadis She knew from stated neighborhood. Murray testified that was a friend “associate” hers. She or “Chief “King was known as Treadis” Murray of the Cobra street Treadis,” King and was the leader had once Rhonda testified that she been gang. Carraway in an in the where apartment neighborhood Murray, defendant, A statue of a present. and Stevens were mantlepiece. Carraway was on the stated black cobra then she had a with en- Murray, conversation tered the and told Stevens Mur- Lounge Shamrock and Carra- Stevens to come outside. Stevens wanted ray left upstairs then walked lounge. Carraway way home, toward Mur- her while Stevens walked girlfriend’s upstairs, that when she she Carraway got testified ray. down, out onto looked girlfriend’s balcony, walked her and saw that Stevens and were Murray gone. Ali he a woman enter
Hasan testified that observed and summon one men seated table the bar left and the then defendant. The man woman with some other returned, The man later accompanied bar. defendant, men, left later, including men. Some time still seated at while and Howland were the lounge Willis got and Howland up after 9 Willis Shortly p.m., the bar. *8 to leave the lounge. for a They paused time while Willis spoke cousin, to his then Willis, Howland cousin left the Maggie lounge.
Outside the lounge, Willis and walked ahead Maggie of Howland toward car. Willis’ Willis walked to the driv-
er’s car, side of the which was facing the street. Howland paused the comer of the lounge while Willis talked. Maggie Howland said that she looked back toward the and saw lounge the silhouette of a man with a gun about five feet from Willis. His arm was pointed straight out her in past the direction of Willis and Mag- gie. Howland stated that she then heard a or a pop crack, and saw smoke come inup front of her face. The gunman then moved Willis, toward who was on lying ground. The gunman was a crouched with the position gun extended in his hand. Howland testified that he was waving gun back and forth. She stated that she then ran back to the Shamrock Lounge and told Hasan Ali to call the She police. testified that the gunman was dressed in black and was hat, wearing but that she did not see his face.
Debra Rhonda Carraway, sister, Carraway’s testified that she and a man named Bell Pervis parked across the street from the Shamrock Lounge between 9 and 9:30 p.m. June 1985. Bell went into the Shamrock Lounge while Debra Carraway remained in the car. Sub- Debra sequently, out of Carraway got car, stepping into a puddle water. She testified that she while stood the water shaking feet, from her she saw two women and a man walk out of the Shamrock She Lounge. stated walked they toward a car parked in the vacant lot next to the lounge. man walked to the driver’s door of the car. She said that she then saw another man walk up them, behind three seconds after approximately them. She testified that the other man defendant, whom she knew from the neighborhood and who had *9 that a few earlier. She stated years her sister
dated in hand. She said that defend- had a his gun defendant shot the car and standing by to the man up ant walked She indicated heard the shot and saw smoke. him. She while and looked both ways then turned that defendant at one forth. stated that his hand back and She moving in her di- was facing defendant shooting, after point saw She testified that she rection, the street. toward the shot two seconds before for approximately defendant Defendant or two thereafter. fired, and for a second was lot toward an alley. the vacant through then ran she then saw one testified that Carraway Debra to the victim run back with the who was women ran to that she then stated Lounge. Carraway Shamrock her sis- to find Lounge try the Shamrock near bar she sister, her so that she did not find She stated ter. her Bell to drive and begged ran to Bell’s car back did Carraway Bell house. Debra complied. her mother’s later, Three she days that night. to the speak police what and related police to the station police went At the shooting. 30 concerning on June she had observed ar- in a photograph defendant time, identified that she ray. arrived fire department the Chicago from
Paramedics A pa- 10 p.m. before' shooting shortly of the at the scene in the motionless lying that Willis was testified ramedic neck. to the wound lot, gunshot an apparent vacant with The breathing. paramedic and was not He had no pulse gathered had people- crowd of perhaps stated that a to a hospital, took Willis paramedics in the lot. revealed An autopsy dead. he was pronounced where entered the up- of a wound gunshot died Willis his lodged spine. of his neck and left area per the time that at testified Carraway Rhonda home, girlfriend’s in her had fallen asleep she shooting awakened girlfriend lot. Her the vacant overlooking Rhonda Rhonda Carraway. looked out the window saw an ambulance and some in the lot. people gathered She went downstairs to the lot. The ambulance and the then people left. She stated that after the had ambulance left, she noticed that van, defendant’s which she had seen parked earlier, the lot was gone. Chicago police interviewed Rhonda on Carraway July 1985. She told police she had been at Shamrock Lounge June 30. She further identified photographs defend- ant, Stevens, Herbert and Robert Spade.
Chicago arrested police defendant on 1985. At July the time of arrest, defendant was on a talk- bicycle ing to Treadis who Murray, in a sitting car parked in a lot in the neighborhood where the oc- shooting *10 curred. On 5, 1985, July defendant a signed consent-to- search form for his apartment. A Chicago detec- police tive searched defendant’s apartment and recovered two hats, black two black jackets, a pair of black pants and black leather shoes. From items, these defendant identi- fied the articles defendant was wearing night the shooting. trial,
At Johnson, William an assistant warden at Pontiac Center, Correctional testified that he had known Virdeen Willis all of his life. Defense counsel objected the prosecutor’s attempt elicit from John- testimony son concerning type gang in the activity existing Illinois penitentiary system. At a sidebar conference on objection, prosecutor that the “entire argued mo- tive in this case revolves gang activity around individ- uals from Treadis and Murray, Steven Smith and the *** fact that Virdeen Willis was in known the peniten- tiary system as a strict ***.” disciplinarian The prosecu- tor further argued that the evidence would that show few years murder, before the Willis was at working Stateville where Treadis penitentiary, at that Murray, time, confined, was and that Willis and had had Murray re- prosecutor in penitentiary.
an altercation was “Treadis Murray vealed that the State’s that theory and the Cobras caused assassination” Willis. King a member of the He further that defendant was posited the State’s Cobras. Defense counsel that King argued highly prejudicial was “wild was theory speculation,” The trial court ruled and was evidence. unsupported three items of evidence: that State could introduce altercation, that had had an Murray that Willis that there was in Willis gang activity prison, strict disciplinarian. of the objec- trial court’s
Following disposition from tes- tion, the elicit Johnson proceeded prosecutor in Stateville Correc- gang activity timony concerning that gang-related activity tional Center. Johnson testified extortion, recruiting, includes within the prison system He stabbings, dope. assaults on fights, employees, firm and “[v]ery further Willis was testified Virdeen hand did tolerate fair” with Willis gangs prison. related to colors, other marching, any activity signals, while Willis July Johnson related gangs. Center, Treadis at Stateville Correctional was employed an On Willis July inmate there. Murray was in a was involved and handcuffed who Murray, subdued It was stipulated with another inmate. fight old. death, was 36 years time of Willis’ defendant Following at trial. no evidence Defendant introduced jury, and deliberation of counsel arguments *11 motion murder. Defendant’s convicted of defendant was his right Defendant waived trial was denied. for new At proceedings. of sentencing phase to a for jury hear death penalty of bifurcated eligibility phase had that defendant evidence the State introduced ing, murders, in to of addition two prior been convicted found defend The trial court of murder Virdeen Willis. Rev. Stat. (Ill. for the death eligible penalty. ant sentencing ch. At the close of the 1(b)(3).) par. 9 — the trial court sentenced defendant to death. hearing, Defendant asserts that it was error reversible initially for the trial court concerning gang-re- admit evidence in in- lated the Illinois activity penitentiary system, Willis, Jr., that a strict dicating Virdeen was disciplinar- ian with to such Defendant further respect activity. it asserts that was error to admit evidence that Willis had altercation had an with Treadis Murray prison. The State offered this evidence its support theory that the murder of was an assassination in retalia- Willis tion for Willis’ treatment of in the gang-related activity where Willis prisons was Defendant employed. argues effect of this evidence prejudicial substantially outweighed probative value that it have had. any may Defendant further asserts that the error in admission of this evidence was exacerbated the prosecutor’s by open- statement ing The State closing argument. responds that defendant has waived of review the admission of this evidence and of the propriety state- opening ment and closing argument by failing raise the issues in his trial, motion for a new by failing object, trial, to most of the prosecutor’s statements now alleged to be reversibly erroneous. The State argues further the evidence now complained because admissible it was probative defendant’s motive for alleged killing Virdeen Willis. the State asserts that ad- Alternatively, mission this evidence does not reversal be- require cause State’s case defendant did not rest on against circumstantial evidence. An identified defend- eyewitness ant as the man who shot Virdeen We hold that Willis. has not defendant waived review of the admissibility this evidence based on accompanying argument evidence. We further hold that error the admis- sion of the evidence and argument pros- improper
54 ecutor this evidence entitles defendant accompanying a new trial. the State that the failure to agree
We with initially in the for trial ordi raise an issue written motion a new through constitutes a of the issue proce waiver narily from the default, urging thus defendant precluding dural on (People for review. ground error as reversal alleged v. v. Odle 38-39; Young (1989), People 1, Ill. 2d 128 v. Enoch 133-34; People 111, (1988), 128 2d (1988), Ill. the 122 Ill. 2d There are 185-91.) exceptions error rule, however, there has been plain waiver where which affecting deprive or defects substantial rights a fair and im accused of a means of enjoying substantial trial, or the error occurs in cases which partial where v. People Odle the evidence is closely balanced. 134; 122 Ill. 2d Gacho Ill. 2d 239; 2d 615(a). 107 Ill. R. of the record reveals that evidence
Our review that application at' trial was closely adduced so balanced cir- is in this case. The of the waiver rule inappropriate link defendant to the tending to cumstantial evidence the class of individuals of Willis narrowed killing merely At two men were killed least other who have Willis. may shooting. on of the Two night with defendant dark cloth- men, defendant, were also wearing these like in the Sham- vicinity Treadis was also ing. Murray Howland, who was that evening. rock Robbin Lounge the time of from the gunman a few feet standing only identify gunman. shooting, unable testimony on the eyewitness State’s case rested chiefly direct evi- the only She Carraway. provided Debra individual who the particular dence defendant was she saw Carraway Willis. Debra testified shot from across street for a seconds defendant but few three days not until shooting. It was night seen to police. she had that she what reported later Rhonda, sister, Her was a or “associate” of friend Murray, King Treadis leader Cobra supposed street neigh Rhonda testified gang. people where the tended to do shooting borhood occurred what Indeed, ever told them do. fac Murray based on these *13 tors, counsel, defense closing in attacked the argument, of credibility Debra Carra Carraway, arguing Debra way had reason not to implicating avoid only Murray the killing, to but cast direction of the affirmatively investigation was, from of away Murray. jury course, free to or accept reject her identification defendant as the man who shot Willis. of a Credibility is witness within the province fact, the trier of finding jury such matters is entitled to great but is weight, not conclusive. willWe reverse a conviction where the evidence is im unreasonable, so probable or unsatisfactory as to a reasonable justify doubt of defendant’s guilt. (People v. Young (1989), 128 1, 51; Ill. 2d People v. Pellegrino 331, 30 Ill. 2d (1964), 334-35; v. People (1958), 290, Coulson 13 Ill. 2d We 296.) find that Debra Carraway’s defendant, identification of alone, was so standing as to unsatisfactory require For reversal. purposes rule, applying waiver how ever, we consider that the of her veracity testimony was tempered evidence discussed above. Since we per ceive a likelihood that the strong which the weight jury attributed to her testimony may have been influenced by other evidence alleged to have been incompetent (People v. Lindgren 129, 79 (1980), 142), Ill. 2d deem we applica tion of the waiver rule inappropriate with to the respect issue of the evidence, the motive admissibility and the accompanying argument the alleged concerning gang-re lated motive for killing See v. People Willis. Shack 396 Ill. (1947), 285, 289; v. People Rogers 348 Ill. (1932), 322, 325-26.
56 court that motive
It has been this long recognized by murder, element of the crime of is not an essential motive in order prove the State has no obligation v. Shack (People (1947), a conviction of murder. sustain v. People Mangano 72, Ill. 285, 292; (1940), Ill. 375 396 established, however, It evi 76.) any is also well had a motive tends to show that an accused dence which it is renders for the deceased relevant because killing kill the deceased. more the accused did probable v. People v. Mitchell (People 1, 10; Ill. (1984), 105 2d People Mangano v. Gougas (1951), 238; 235, 410 Ill. Novotny (1939), v. People 72, also 375 Ill. 76. See
(1940), for 58, Ill. It is also the rule that order 61-62.) must, it least be competent, such evidence to existence of the mo tend to establish the slight degree, v. Stewart (People (1984), tive relied upon alleged. v. Branion People 47 Ill. 2d 56; Ill. 2d Gougas Thus, 410 Ill. 77; 238-39.) facts which the prove the State undertakes when *14 charged, for crime a motive State constitute asserts facts. that knew of those it must shown the accused be v. 29, 52; People v. Wilson People Ill. (1987), 116 2d v. People Gougas 1, 10; Mitchell Ill. (1984), 105 2d Ill. 239. 410 (1951), v. Wilson People 29, this Ill. 2d court
In
116
(1987),
evidence of
admitting
erred in
the trial court
held that
at the
arrest
for the defendant’s
outstanding
an
warrant
offi
two police
murdered
allegedly
time the defendant
that
tó show
had
the evidence
The State
introduced
cers.
for
the officers —to
killing
had a motive
the defendant
held
admission
improper
arrest. This court
there
avoid
knew
that
the defendant
evidence,
evidence
this
absent
Simi
(116
52.)
Ill. 2d at
he
by
police.
was wanted
an insurance pol
the State offers
in cases
which
larly,
to kill the
had a motive
that an accused
as evidence
icy
for the
has
as a foundation
deceased,
required,
this court
evidence,
admission of such
State
evi
provide
dence that the accused knew of the
knew it
policy,
valid,
it
valid,
or believed was
and knew that the accused
would benefit therefrom.
v. Mitchell
(People
(1984), 105
1, 10;
Ill. 2d
v.
People Gougas (1951),
Ill.
239.
See
People
143;
also
v. Holtz
294 Ill.
(1920),
v.
People
89 Ill.
(1980),
56.)
Erickson
3d
In
App.
Gougas, this
***
court
policy
standing
observed
alone in
“[t]he
evidence before the
little more than excite a
jury, [does]
guilt
not of the
suspicion
character
convincing
[is]
which satisfies the mind that
was motivated
[defendant]
by any
gain from the insurance when
com
thought
he
mitted his homicidal
assault
the deceased.”
In v. People 545, 562, Weaver 92 Ill. 2d this court held it for the improper State offer evidence of a love as affair a motive for a murder when the State failed to offer evidence any when the affair establishing took place. We there observed that love affair whose “[a] embers have long since cooled is not exactly motive for murder. Its is value to be likely outweighed the unfair prejudice the defendant against evidence engen ders.” 92 2d at 562. Ill. See also People v. Holtz (1920), 143; 294 Ill. Harbold 124 Ill. App. 3d 363, 376-77.
These cases all recognize that while it is entirely for proper motive, the State to prove a it is not enough that the State evidence of merely produce motive in the abstract, i.e., that someone may have had a motive at some time kill the deceased. The motive must at be to the tributable defendant on trial at the time the crime was committed. This rule seeks avert real very danger through evidence, guise motive *15 State may to the present jury mat highly inflammatory which, ter in is of little or no actuality, value. probative See v. People Lindgren (1980), 129, 79 Ill. (evi- 2d 140 other committed the defend-
deuce of crimes allegedly if relevance establishing ant inadmissible for its grounds are speculative). that, in. met
It also been recognized particularly has areas, against there be ropolitan may strong prejudice v. Parrott (People 40 Ill. 3d (1976), App. street gangs. need not However, evidence of affiliation 328, 331.) gang if it is relevant and admissible. be excluded otherwise v. Peo Calderon (People 657, 661; 98 Ill. 3d (1981), App. Peo v. ple Miller 1029, 1034-35; 3d 101 Ill. (1981), App. Wadley (1988), v. ple 1036, It 1043-44.) 169 Ill. 3d App. the defendant indicating is held that evidence generally in gang-related a or involved gang was member of common or purpose design, is admissible show activity act. for an otherwise inexplicable or to motive provide v. People (People v. Hairston 348, 372; 2d 46 Ill. (1970), v. People Miller 1034-35; 1029, Ill. 3d (1981), App. De Savieu Such evi 534-35.) 11 Ill. 3d (1973), App. suffi dence, is there is however, admissible where only related to is activity cient that such proof membership v. Hairston 46 Ill. 2d the crime charged. People Wadley 372; 169 Ill. 3d App. 1043-44. motive case, in the State’s
In the flaws present to demon- The State undertook are manifest. theory King a member of the Cobra strate that defendant was an of Virdeen Willis was killing and that gang street of Treadis Murray out on behalf carried “assassination” for Willis’ intolerance Cobras retaliation King ad- evidence prison. only activity gang-related however, indicated theory, mitted in this support Illinois in the gang-related activity is a variety there of such was intolerant that Willis system, penitentiary where he was employed, in the activity prison while Murray with Murray had an altercation Willis had have been proba- well may inmate. This evidence was an *16 defendant tive whether had a motive to kill Willis— if but the evidence had somehow tied to only been defendant. The evidence indicated that defendant only in had been seen an on with one occasion apartment that have influential in Murray, Murray may fairly been occurred, the neighborhood where the that shooting defendant was at talking with the time of Murray defendant’s arrest. evidence, itself, This does simply a support reasonable inference that defendant was an active of the King Cobras, member that defendant was acting to the pursuant vengeful alleged designs Murray or the the time King Cobras he allegedly killed The Willis. trial record is of any barren evidence that defendant was aware that was an Willis assistant warden, let alone that Willis was on tough gang activity There was prison. nothing to that defendant suggest knew an Willis had had altercation with or that Murray, have Murray may harbored animosity toward Willis. The only evidence even arguably tending to tie the alleged motive to defendant was the that defendant testimony seen, had been occasions, certain in the presence Treadis This is a Murray. too slim thread simply upon which tie to the State’s of motive. theory such, As evidence of inflammatory gang-related offered to activity support the “motive” ofwas little theory probative value and could do little more than “excite a suspicion of guilt” the minds of the v. jurors. People Gougas 410 Ill. 240. argues State that this is case similar to Jackson Ill. (1982), 105 In Jackson, 3d 750. App.
court held that evidence of the defendant’s mem gang relevant to bership the State’s support theory defendant attacked the an victim on order from a gang leader, victim, whom had prison earlier employee, Jackson, In disciplined. however, case, unlike the present there was direct that the defendant was a testimony sub- and that it was not uncom- gang
ordinate member of the to gang mon for a officer order subordinate member something. do There was further subordi- testimony to various forms of subject nate members were gang superiors. orders their failing obey for punishment case, present simply In the the evidence failed estab- King lish affiliated with the Cobras. that defendant was as- suggest every It too far to somehow goes person of the King Treadis is a member Murray sociated with Cobras, the will of subject Murray and thereby *17 common or with the design gang. shares purpose Willis, motive to kill absent Murray’s Treadis possible evidence, cannot attributed to other sufficient be simply Murray. who associates with person every of this The of the erroneous admission evi problem the by prosecutor’s arguments dence was exacerbated is wide lati It true that the State permitted is jury. and to the may argue jury tude in closing argument from the evidence. legitimate and inferences drawn facts v. People v. Turner (People 540, 560; 128 Ill. 2d (1989), v. Williams People Cisewski 163, 175; 118 Ill. 2d (1987), 522, is, however, 2d It for 530.) improper 40 Ill. (1968), argue facts based assumptions the prosecutor to the what in the case or present jury evidence upon v. Beier (People 29 (1963), testimony. amounts to his own v. Rothe People 358 Ill. 511, 517; (1934), 56.) Ill. 2d to do or it for Furthermore, prosecutor is improper of which be in effect will only say anything argument of the prejudice jury or arouse passion to inflame the on the defendant, throwing light any without against v. Dukes (People 12 Ill. 2d (1957), for decision. question will not merit reversal remarks 334, 342-43.) Improper to the defend in prejudice result substantial they unless used, its re of the language the context ant, considering evidence, its on the defend to the effect lationship v. trial. People fair and impartial to a ant’s rights 61 Thompkins (1988), v. Pitt 445; Ill. 2d man People Bryant 176; 93 Ill. 2d Ill. 2d 514. above,
As noted State’s theory gang-related motive, which it to the in argued extensively jury closing was not argument, by the evidence adduced at supported trial. The basic theme of the argument prosecutor’s exposition State’s of motive. The theory pros- ecutor was an argued killing Willis “assassi- nation” and that thorn in the huge side of the crimi- “[a] nal this gangs area was removed.” prosecutor The continued that “[vjengeance was by had those individuals who had been incarcerated and were affected by strict stands that disciplinary Virdeen Willis took against gang in the activity Street penitentiary. flourish in gangs this city flourish they penitentiary system.” then prosecutor stated to the that the Sham- jury Lounge rock was located in an area “con- Chicago trolled a gang known King Cobras,” as Treadis Murray was the “king Cobras,” the King had a Murray confrontation with Willis. The prose- cutor then proceeded argue: “Several King members of the present Cobras were *** *18 lounge.
this
When these individuals saw Virdeen Willis Jr. on turf, their not within the penitentiary which was Virdeen *** turf, Willis Jr.’s it was all over for this particular as- sistant warden. in,
You know that three of them came the defendant others, and two ***.”
Later, the prosecutor continued the same along gang-re- lated theme: old, see today
“We a man is 37 years who 37 her[e] years gang old .still banging, still mixed with a up bunch in a guys gang. And to that say gangs part are not a ridiculous, of this case is an it’s It’s integral part. unfor- *** tunate, that city there are of this parts that are of these these masters of the people, scared to death like terror- They go acting out there urban neighborhood. want, fear into ists, taking they instilling every what to things they children do that didn’t want Making adult. do, ***.” above, admitted at trial simply
As we noted the evidence defendant, or either the other establish that failed to Lounge, in Shamrock were men who were with him the in the King nothing of the There was members Cobras. evidence, inferred that defendant from it could be which of, to further any purposes motivated desire was of, either Treadis Murray or to seek on behalf vengeance testimony in of Rhonda King general. Cobras good deal of indicated that wielded Murray Carraway oc neighborhood shooting in the where influence tie curred, enough to the State’s this was still but While, motive” to defendant. theory gen “gang-related to com not be for the prosecutor it would error erally, where activity on the results of gang-related ment evil (People charged crime is related to the activity such Owens failed 105-06), Ill. 2d the evidence with which defendant was crime establish evidence tending Absent charged gang-related. defendant, we “motive evidence” per tie State’s could serve no arguments ceive that prosecutor’s or arouse the to “inflame the passion other than purpose the defendant without against of the jury prejudice for decision.” question any light throwing v. Dukes 12 Ill. 2d 342-43. in the other errors alleged prosecutor’s
We consider Defendant as- closing argument. statement opening statement, im- his opening serts that prosecutor, Shamrock reference jury, told the with properly lounge were members Lounge, “[ijnside Chicago. One gang Cobras street King inis court gang today street King Cobra members
63 us, here, with defendant Steven Smith.” Defendant further asserts that the informed prosecutor improperly jury had, evidence would show that Willis occasion, certain previous been threatened indi- viduals as he left the Shamrock Lounge. above,
As discussed the evidence adduced at actually trial did not simply inference defendant support was a member of the King Cobras. The trial court ex- may cluded evidence which have to link tended defend- ant with the No King Cobras. evidence was to presented suggesting that Willis had jury been threatened on prior occasions while any leaving Shamrock Lounge. William Johnson was at apparently prepared testify threat, trial about the alleged but the trial court pre- cluded the from eliciting State such at testimony trial. Chrans, A.
James warden of Pontiac Correctional Center, at did testify sentencing that about hearing two months prior had Willis commented shooting, Chrans of men group had at yelled Willis from across the street while Willis and William Johnson were leaving the Shamrock Lounge. Chrans stated that John- son had related that the men told toWillis out of “[g]et here. Don’t come back on our turf.” Neither Chrans nor Johnson testified as to who these men or were whether were associated with they Cobras, defendant the King and, course, none of this evidence was presented guilt phase trial.
An opening statement include a discussion of may evidence and matters which may reasonably be inferred from the evidence. v. (People Warmack 83 Ill. (1980), 2d 112, 126.) “Counsel may summarily outline what he ex pects evidence admissible at trial will show [cita no tions], but statement may be made in which opening counsel does intend or cannot prove prove.” (Gillson Gulf, Mobile Ohio & R.R. Co. Ill. 193, 197; 2d v. Robinson 163 Ill. App. 3d *20 however, not, for re
754, 776.) necessarily It is grounds to evidence versal that an statement refers opening to error Reversible proves which later be inadmissible. the are to occurs where remarks attributable delib only in and result substan erate misconduct of the prosecutor to the defendant. Miller v. John (1904), tial prejudice v. Robinson People 163 Ill. 173, 177; 208 Ill. (1987), App. v. Trass People Ill. 754; 776-77; 3d 3d App. 455, 465. no case, misconduct on
In the we present perceive in the erroneous re the of the prosecutor allegedly part The State stood marks made in his statement. opening the asser to evidence to tending support introduce ready the King was at least associated with tion that defendant Cobras, threatened while that Willis had indeed been to the Lounge a weeks prior the Shamrock few exiting was, however, later excluded by This evidence shooting. comment can we that this con say the trial court. Nor alone, have resulted threat, standing the would cerning trial court in in to defendant. The prejudice substantial statement was not that jury opening structed as and should not be considered of the evidence part alleged pre threat was concerning such. No evidence no further made sented to the jury, prosecutor to defendant’s regard to it time. With any reference Cobras, comments, King in the membership alleged rever alone, have warranted standing may similarly v. Trass 3d 136 Ill. App. sal. (See evidence incompetent with together But taken 465.) the similar re motive and alleged gang-related fac consider additional in we argument, marks closing and further of defendant to the weighing prejudice tors convic defendant’s our to reverse decision supporting tion. it for the that was improper
Defendant next contends refer to closing argument, repeatedly prosecutor, as the Cobras.” King Treadis Murray “king in- Defendant asserts these comments were highly It well be these prejudicial. may flammatory references were we would note that it but inflammatory, was defense counsel who elicited Rhonda initially from cross-examination, Carraway, Mur- testimony ray was the leader of the Cobras. appar- This was King an done in ently impeach her attempt testimony. Defendant, therefore, will not be heard to complain comments prosecutor’s relating evidence which defendant himself elicited.
Defendant also complains of comments following made closing prosecutor argument:
“Now Rhonda introduced Carraway you Treadis *21 of the Murray, king Carraway Cobras. And Rhonda told you that when she the day came down street that Treadis her Murray grabbed go get and on in said there and Her- bert in Stevens there I because want to talk to him. And
she you told that she the Lounge went into Shamrock to do just that because king when the of the Cobras tells you something, you to do it. So she there do went in and there, Stevens, who did she see saw she Herbert and him, defendant, seated with the all dressed in black.” Defendant states that this of the evidence summary taken the context of the comments prosecutor’s about assassination and an vengeance was invitation to the to infer that Stevens jury Murray told to tell defendant course, to kill Willis. Of the did not prosecutor expressly was the argue that this case there is and no evidence whatsoever in the record to such an inference. support We view the as above-quoted nothing comments more than a of the evidence trial. The summary adduced at no inferences this prosecutor drew from evi- improper nor dence did he invite the to speculate pos- jury meeting sible substance with Stevens out- Murray’s side the Shamrock Lounge. argues defendant that it was for improper
Finally, to that to several prosecutor suggest jury and forced to State’s witnesses had been threatened “every that wit- Chicago. leave stated prosecutor to in here what he say ness that had the come and guts saw, guts she witness that had the to every point or defendant, witness that had the guts this finger every tell this is the has had to leave town.” guy, to the police remarks were com- simply The State that these responds of Rhonda and courage credibility ments on the argues Ali. The State that and Hasan Carraway Debra that these witnesses these comments was gist of defendant, to but not motivated accuse falsely were were, instead, flee, “would have motivated which lot defend- testifying against a whole easier” than been that did not The State emphasizes prosecutor ant. had tell that the witnesses been jury expressly ar- defendant, The State by threatened anyone. the inference could have drawn that well gues jury from Chicago not move these witnesses would accuse defendant. then return falsely testified they Debra Carraway Both Rhonda and after Chicago shooting out of Willis had moved An was sustained to trial. prior objection Rhonda to elicit from testimony attempt prosecutor’s Ali feared for her life. Hasan testified that she Carraway threats, al- he getting he left Chicago because or the nature testify he did not as either though *22 of those threats. source activity of gang-related
In the context of the evidence and “assassination” concerning gangs and the remarks of the prosecu- clear implication “vengeance,” witnesses these in this was regard tor’s comments otherwise, leave to Chi- forced, threat or had been is a witness course, to intimidate Of any attempt cago. (People of guilt a consciousness as suggesting admissible
67 74, Ill. but remarks Gambony (1948), 80), here the were because there in the evi improper nothing was dence Carraway either Rhonda Debra suggesting had have to leave. may to leave town or had why they to no Ali, With Hasan there was evidence respect him, source nothing threats directed to sug these threats gesting were in related to any way against defendant. Like the other errors in charges the State’s closing argument, comments, these standing alone, not have so defendant as to war may prejudiced However, rant reversal. these compounded comments the fundamental flaws this trial. permeating
We that the conclude cumulative of the incom impact petent evidence of gang-related activity and of the prose cutor’s remarks in this well regard have may prejudiced and constituted a jury material factor leading defendant’s conviction. circumstances, Under these defendant is entitled a new trial. See People v. Whitlow 89 Ill. 2d (1982), 339-41; v. Lind gren 129, 142-43; Ill. 2d People v. Romero 36 Ill. 2d 318-20.
Although to our necessary disposition this case, we will address one other issue we deem likely arise on defendant’s retrial. Defendant asserts that it was reversible error for the trial court William permit Johnson to testify concerning contents in- prison cident The itself admitted into evi- report. report was course, dence. report Of is inadmissible unless the State establishes its relevance to the crime with which If, retrial, defendant was on charged. its relevance is es- tablished, it will be to determine it necessary whether is otherwise The admissible. incident was report apparently one prepared by Lieutenant at Hart Stateville Correc- tional Center 1982. consists an July report account anof incident in which who Treadis Murray, an Stateville, that time inmate at another fought with
68 to the Virdeen Willis assisted report, inmate. According In so do- breaking fight. Taslar in up a Lieutenant was, Johnson handcuffed William ing, Murray. Willis officer reviewing report the time the was prepared, Johnson signed report. apparently who reviewed and of the Defendant ac- report. had no firsthand knowledge and John- that the report asserts cordingly correctly Defendant hearsay. from the were report son’s testimony violated of this evidence that admission argues further him. U.S. against to confront the witnesses right his Const., VI, XIV. amends. was admissible report
The State responds to the rule. exception hearsay records under the business 38, 5.) The State fur 1985, ch. par. Rev. Stat. (Ill. 115 — concerns were not clause urges ther confrontation report incident prison in the admission implicated re because the of Johnson testimony or in the William reliable, and, fact, required was prison was port 1985, ch. Rev. Stat. (Ill. statute to such records. keep by report that the conclude 5—1(a).) We par. 1003 — business record, under our as a business not admissible particu of statute, proving for the records purpose Murray. confrontation Willis and lars of the between cases, exception records In criminal the business 115—5 of in section is codified against hearsay the rule Rev. Stat. (Ill. of Criminal Procedure of the Code in part: 5). That section provides ch. par. 115— record, form of an en- in the or whether “Any writing a memorandum or otherwise, made as or in a book try event, transaction, occurrence, or shall act, any record act, transaction, occur- of such as evidence admissible be any course busi- event, rence, regular if made or business ness, regular course such if it was the time of such or record at the memorandum make such or reason- transaction, occurrence, or event within act, time thereafter. able
All making other circumstances of the such writ- record, ing knowledge or including personal lack maker, may weight, entrant be shown its affect but such circumstances shall affect its admissibility. ‘business,’ Section,
The term as used in this includes *24 business, calling of profession, occupation, every 1985, 38, kind.” Ill. 5(a). Rev. Stat. ch. par. 115— face, On its the incident in the prison case be- report fore us to fall within of the appears the broad lan- scope guage of the statute. Johnson testified that the report was in the course of of kept ordinary the business the statute, prison. By Department of Corrections is re- quired of prepare keep such reports incidents. Johnson further testified that the report prepared was after immediately incident with which it con- is cerned.
Defendant cites Palmer v.
(1943), 318 U.S.
Hoffman
109, 87 L.
645,
477,
Ed.
63 S. Ct.
of
in
his con-
support
tention that
the prison incident
is
report
inadmissible.
Palmer
involved a railroad grade crossing accident
which the
car
plaintiff’s
was struck
a train.
by
Following
the incident
of the
engineer
train involved made a
statement
to an assistant superintendent
of the railroad.
The statement
consisted of the
apparently
engineer’s ac-
count of the events
the accident.
surrounding
engi-
The
neer died prior
to the trial on the plaintiff’s various
causes of
defendants,
action
against
trustees in reor-
of the
ganization
railroad
The defendants of-
company.
fered in evidence at trial
the statement made
the de-
by
engineer.
ceased
The trial court
excluded
statement.
The Second
of
Circuit Court
held that
the state-
Appeals
ment
inadmissible,
was
reasoning that such statements
are
v. Palmer
unreliable.
(Hoffman
inherently
(2d Cir.
1942), 129 F.2d 976.) The court observed that
the state-
ment was
with
“dripping
motivations
to misrepresent.”
The United States Court affirmed. Supreme construed the Federal business records ing, the Court The language then codified at 28 U.S.C. exception §695. Palmer decided, time is virtu of section at the (Ill. of section 115—5 Rev. identical ally language held that 5). Stat. ch. Court par. 115 — of busi regular statement was not made “in course” as fol Act, reasoning ness within the meaning lows: systematic is made for the conduct
“It
not a record
report may
An
affect
the business as
business.
accident
sense that
it affords information
that business
not, however,
management
typi-
It
may
act.
is
which
or as a matter of rou-
systematically
cal of entries made
occurrences,
to reflect
transac-
tine to record events
others, or
internal controls. The
provide
tions with
payment
entails the
commonly
conduct
a business
negligence
employees.
its
tort claims incurred
makes a business out
re-
company
But the fact
does
of their accidents
cording its
versions
employees’
*25
‘in
of records made
statements in the class
put
those
meaning
within the
of
of the business
regular
course’
649,
113-14,
The Court
of records which
facilitate the admission
was
designed
If the
trustworthy.”
had “shown to be
experience
quite
urged
of the Act
accept
interpretation
were
Court
system of
defendants,
any
“the Act would cover
by
it
‘regular’
was
or occurrences provided
events
recording
the man-
or
to do with
nothing
it had little
though
and
*** The
as such.
of the business
or
agement
operation
records because
they
of
of trustworthiness
probability
of
a
day operations
of the day
reflections
were routine
of the
as the basis
rule.
forgotten
be
[Ci-
business would
test
become the
of
would
Regularity
preparation
tation.]
their ear-
records
and
character
rather
than the
from their
acquired
marks of
source
reliability [citation]
the nature of
origin
compilation.”
and
their
U.S.
S.
113-14,
“That prison be held accountable may under 42 for beatings U.S.C. physical prisoners, depriva- §1983 care, tion of deprivation hygienic medical condi- tions, has for enough been established years it can safely be assumed guards at least some write their re- ports on such occurrences with that possibility in mind.” 466 F.2dat 704. in United States v. Ware
Similarly, Cir. (7th 1957), 247 F.2d involving a for unlawful prosecution acqui- sition, concealment heroin, court possession considered the of certain exhibits admissibility including memoranda prepared by agents. Federal narcotic court concluded the admission of certain exhibits consisting envelopes which Federal narcotic agents purchased had heroin from the allegedly defend- ant on which had made various agents notations and the concerning purchases circumstances under made which were purchases reversible error. *26 The court reasoned that on the memoranda enve- lopes by satisfied of the prepared agents none re- of the business records the rule quirements exception Ware, §1732; 247 F.2d at (28 U.S.C. against hearsay. court observed: 700.) The question as the are if memoranda such ones
“[E]ven officers, they by law enforcement lack regularly prepared trustworthiness. necessary reliability earmarks of compila- their nature and manner of Their source are under unavoidably they inadmissible tion dictate objection to the subject are also They section 1732. primarily prosecu- relates utility they possess such as breakers, incidentally to only law suspected tion (247 F.2d police business.” systematic conduct 700.) at
The Palmer doctrine extended generally has thus been with an to- eye records” prepared to exclude “business be- when offered whose by party ward litigation v. made. See United States hest records were such 957, Smith cases (and 521 F.2d 965-66 1975), Cir. (D.C. therein). cited pro-
Indeed, specifically records statute our business vides that: regular course
“(c) writing or record made No as evidence admissible any business shall become if: of this Section application [***] by anyone made writing or record has been
(2) Such during alleged an offense or during investigation an anticipated litiga relating pending investigation any 38, 115— (Ill. par. kind.” Stat. ch. Rev. any tion 5(c)(2).) investiga police
Thus or records relating writings records ex from business excluded generally tion are though they even against hearsay, to the rule ception enforcement law regular “in the course” kept be may Carpenter (1963), v. Ill. 2d (See People “business.” White 3d People 167 Ill. 120-22; App. (1988), 175, 191; v. Seider 3d People 98 Ill. 442; App. 307, 310-11.) v. Richardson 3d 48 Ill. App.
73 This exclusion extends to or records of certainly reports of officers or other law enforcement observations police scene of or a crime personnel apprehension Graham, & (M. accused. Graham’s Handbook of Cleary ed. (5th 1990).) Illinois Evidence informa- §803.13 in such or records may tion contained well call reports motivation, recall, into or the question soundness of the author conclusions of of or report person the information contained in the providing report. (See State v. Bertul United 1181, 1185; 664 P.2d (Utah 1983), v. States Ware United (7th 700; Cir. 247 F.2d 1957), 698, v. States Orozco (9th 789, Cir. 590 1979), 793.) F.2d Such records, reports themselves, thus by lack generally the earmarks of trustworthiness which are reliability true basis for the business records to the exception rule against hearsay and which business records are as- sumed to have. ordinarily
We conclude that prison incident like the reports one before us in this case lack the necessary earmarks of trustworthiness and reliability generally attendant regularly kept business Similar records. to police re- these incident ports, reports generally record discipli- by infractions are nary inmates and made an with eye some toward form As subsequent discipline. ob- aptly Bracey Herringa, served 704, F.2d at confron- tations between often prison employees give inmates rise to civil rights litigation against and it employees, can assumed that safely be their employees prepare reports with this in mind. See 5 possibility Wigmore, J. Evidence (Chadbourn fair 1974) (it rev. is a limita- §1527 tion on the business records to exclude mate- exception rial where the existence of fairly positive counter mo- tive misrepresent appears particular instance). See also E. Cleary, McCormick Evidence (2d ed. §308 1972). the De further find it of little consequence
We statute to required keep by Corrections partment Section 3 — 5—1 of the Unified Code Corrections such reports. qu (Il 38, 1003—5—1) ch. par. Rev. Stat. re l. maintain a mas Corrections Department ires Each file ter record file on each committed it. person contain, is to other among things, “reports discipli Stat. (Ill. Rev. disposition.” infractions nary But the statute itself 5—1(a)(5).) ch. par. 1003 — *28 the the information con veracity not account for of. does serve as some in such This statute reports. may tained of rou for admission of or records authority reports matters tine, ministerial, and nonevaluative objective the circumstances setting made in a nonadversarial when in or records otherwise reports preparation v. (People Flippen their trustworthiness. dicate v. 250. See also United States 246, Ill. 3d 46 App. Orozco (Congress, F.2d 793 1979), Cir. 590 (9th “ ... law enforcement ‘matters excluding observed ” exception records coverage public from personnel’ routine, non- did not intend to exclude hearsay to rule of license num adversarial matters such as recordation station), through of all border pass vehicles which bers not, does how Fed. R. Evid. The statute 803(8).) quoting us ever, like the one before with cloak incident reports and indications of trustworthiness reliability sufficient records of the business satisfy underlying purpose in these The truth of the matters contained exception. in some other be accounted for reports should types to the matters witness manner, testimony by such as incident therefore hold that prison contained therein. We ex records are admissible under the business not reports offered hearsay to the rule when against ception or of con infractions disciplinary the particulars prove enforce or law prison employees, frontations between not, and do need inmates. We ment and personnel prison
75 not, is admissible other pass whether for report such Murray as to demonstrate that was an in purposes, mate at Stateville Correctional Center. Ill. People
The State cites v. Jackson 2d and 46 Ill. 3d Flippen (1977), App. for the proposition prison records made jail pur suant are statutory provisions admissible under the Jackson, business statute. In this held records court ad as a missible business record defendant’s inmate his tory containing card data defendant’s his relating his his tory, picture, and the reason for fingerprints his admission to The card also included a prison. medical no describing tation the defendant’s condition as good. The card otherwise satisfied the statutory for requirements as a admission business record. the fact that Despite business records statute excluded specifically “medical records,” this court observed medical notation on the card was essentially descriptive defendant “in view of the contents, mode of preparation purport, card should come within the pur view of the medical records exclusion.” (Jackson, Ill. 2d at In 114.) Flippen, court held admissi appellate ble certain prison records including a certi photographs, *29 mittimus, fied a “dress-out” slip, parole papers.
court, on section of relying 115—5 the Code of Criminal Procedure and section 3—5—1 of the Unified of Code (Ill. Corrections Rev. Stat. ch. pars. 115— 5—1), held these items admissible to prove prior 1003— conviction. 46 Ill. 3d Flippen, at 249-51. App.
The items held as admissible “business records” in Jackson and in Flippen clearly satisfied both the letter and the of the business records purpose exception. These routine, items concerned ministerial pre matters not in the adversarial context of a pared true confrontation between law enforcement accused. personnel were in the course They kept pursuant regular statute cir prisons, and the respective of the operations their and retention served as preparation cumstances of Further, of their guarantees accuracy. they sufficient of of discipli not admitted as evidence the details were of in infractions true confrontations between nary above, As we noted mates and prison employees. at issue in this case is a differ report incident
prison altogether. willing While we be category may ent misrepresent” with motivations as report “dripping describe it is 991), certainly 129 F.2d at fman, (Hof given opportu defendant should be such nature that its through contents ad veracity to test nity through technique process, especially versarial cross-examination. course, to exclude such is, reports
It not our place if the put statute legislature from the business records exclusion of mat- think that the specific them in. But we or an- litigation criminal relating investigations, ters real about very evidences concern ticipated litigation when their accu- reports of such records admission the adversarial The prison untested racy process. is in the case at bar lacks the reliability report incident assumed to have. ordinarily records are which business with of such reports, also that admission We believe confrontation clause more, rise to serious give out would 13; Smith 38 Ill. 2d M. (See concerns. Evi of Illinois Graham, & Graham’s Handbook Cleary In ed. criminal (5th 1990).) 665-66 §803.13, dence of the accused to right the constitutional prosecutions, its him and corollary witnesses against confront to restrict independently act of cross-examination right which be admitted may evidence hearsay types The sixth in certain circumstances. a defendant against Constitution provides to the United States amendment shall en the accused all criminal prosecutions, that “[i]n *** witnesses confronted with the to be right joy
77 (U.S. Const., him.” against VI.) right amend. This is ob States of the four ligatory through operation (U.S. Const., XIV; teenth amendment. amend. Pointer v. 400, (1965), 923, Texas 380 U.S. 13 L. Ed. 2d 85 S. Ct. I, 1970, 1065. See also Ill. Const. (“In art. all criminal §8 *** shall prosecutions, accused have right meet the witnesses face main and essen face”).) tial of the purpose confrontation clause is to secure for an person accused cross-examination. opportunity (5 J. Wigmore, Evidence rev. (Chadbourn 1974); §1395 Graham, & of Illinois Cleary Graham’s Handbook Ev M. (5th Indeed, idence ed. it 1990).) would appear §807.1 that the explanation fundamental for such ma excluding terials as those described in section 5(c) 115 — Code Rev. (Ill. Stat. ch. is that par. 5(c)) 115 — rights substantial under the confrontation clauses both the United States and Illinois Constitutions, especially right cross-examination, be severely would preju diced when the information or record report calls into question the motivation and the accuracy percep tion, recall or soundness of conclusions of person who prepared who report informa provided tion contained therein. v. (People Smith 38 Ill. 2d 13, 15. See also State Bertul 664 (Utah P.2d 1983), 1181, 1185; Chambers v. 410 Mississippi U.S. 284, 296, 297, 309, 35 L. Ed. 2d 93 S. Ct.
(right of cross-examination is fair essential trial). Graham, See M. generally & Graham’s Cleary Handbook §§803.13, Illinois Evidence (5th 807.1 ed. 5 J. 1990); Wigmore, Evidence ch. 47 (Chadbourn rev. 1974).) Of course, guarantee this has never been to be interpreted an bar to absolute all hearsay against evidence offered criminal defendant.
The United States has Supreme recognized Court the confrontation clause rule evidentiary against roots,” “stem from the but hearsay same *31 v. (Dutton the two. Evans
Court has declined equate 226, 91 74, 87, 213, 27 L. 2d S. Ct. 400 Ed. (1970), U.S. the of confrontation 210, 219.) validity In assessing of evidence the attacks on admission hearsay clause for “a concern the accu practical Court has manifested in criminal trials truth-determining process of racy ‘the trier of fact ba by assuring satisfactory [has] ” of the prior sis for the truth statement.’ evaluating 89, 227, at 27 L. 2d 91 400 Ed. at S. Ct. (Dutton, U.S. has indicated that “firmly at Court 220.) Supreme as hearsay, to the rule such against rooted” exceptions as such with co-conspirator may carry exception, court need them “indicia of that a reliability” sufficient into the trustworthi independent not make any inquiry prior such exceptions of matters within falling ness v. (Ohio (1980), into evidence. Roberts their admission 2531, 56, 597, 608, 2d S. Ct. 66, 65 L. Ed. 100 448 U.S. 171, 483 U.S. 2539; (1987), v. United States Bourjaily 144, 157, 2775, Ct. 2782. See 183, L. Ed. 2d 107 S. 97 387, v. 475 89 L. (1986), Inadi U.S. also United States 1121; S. Ct. Ed. 2d 106 Goodman within a falling 81 declarations not 278.) Ill. 2d Hearsay may nonetheless be admitted rooted” “firmly exception guarantees if are shown they possess “particularized at v. Roberts U.S. (Ohio trustworthiness.” at See gener at 100 S. Ct. 2539. 65 L. Ed. 2d of Illinois Graham, & Handbook M. Graham’s ally Cleary rec the business (5th ed. While 1990).) Evidence §807.1 indeed be against may to the rule exception hearsay ords we do find rooted” enough exception, “firmly in this case like one at issue incident prison reports re The admission such fit into that exception. neatly rea underlying not consistent with the is ports certainly find these types We further exception. son for themselves, suf bear not, may by reports, general, requirements reliability” satisfy ficient “indicia of the confrontation clauses. more Something way of “particularized guarantees trustworthiness” is needed. sum,
In we hold that the evidence adduced competent raise, trial was not so as to as a matter unsatisfactory of law, a However, reasonable doubt of guilt. defendant’s weight to that jury may attributed evidence well have been influenced and incompetent inflamma- evidence tory prosecutorial remarks accompanying concerning gang-related activity motive. The cumu- lative of this impact incompetent evidence and the prose- cutor’s accompanying remarks well have may improperly prejudiced against defendant jury have consti- tuted a material factor to his leading conviction. Accord- *32 ingly, defendant is entitled to a new trial.
Defendant’s conviction of the murder of Yirdeen Willis, Jr., is reversed and cause this is remanded the circuit of court Cook a County for trial. new
and
Reversed remanded. MILLER,
JUSTICE dissenting: The court that finds irrelevant evidence of motive trial, was the introduced at defendant’s and the court holds the in that error the admission of the evidence re- quires that the defendant I granted be a new trial. do with the agree view, conclusions. In majority’s my the challenged relevant, evidence was If and admissible. error it proceedings below, occurred the was in the er- of roneous exclusion similar evidence offered the by reasons, State. For those I dissent. respectfully victim, Jr., The Willis, Yirdeen was assistant warden Pontiac On Correctional Center. June Willis friend, and a went Howland, Chicago Robbin drove to and to the Lounge, Shamrock a tavern that was owned by Willis’ cousin. Her- During defendant, evening, bert Stevens, and Robert the tavern and Spade entered Howland, a and who table behind Willis
occupied directly were Alarmed sitting bar. behavior armed him- defendant his the bartender companions, and At a was on the handgun kept premises. self with that one was summoned outside talk Stevens point, Cobra street King Treadis the leader Murray, several other men. Stevens later returned with gang. and others left defendant, Stevens, Spade, sometime that. following and Howland left tavern
Assistant Warden Willis the testi- p.m. According with cousin around Willis’ of an the defendant Willis approached mony eyewitness, As handgun. him in the neck with Willis shot once gun back the defendant waved lay ground, defendant and then fled. The and forth several times later and with Willis’ charged was arrested several days arrest, his the defendant was murder; at the time of Murray. with Treadis talking above, trial to the described
In addition evidence testi- admitted, objection, over the defendant’s judge did not tolerate that Assistant Warden Willis mony known as inmates activity by gang-related Co- of the King strict members disciplinarian, De- in facilities were incarcerated bra street gang of Pontiac As assistant warden Corrections. partment for Center, charge security was in Correctional Willis the trial Also a defense objection, institution. over occurred of an incident admitted evidence judge *33 At the Murray 1982 and that involved Willis. July an Stateville Correctional time, was inmate of Murray fight there. After a Center, and was employed Willis Willis, inmate, another Murray broke out between officer in sub- assisted another captain, who was then a two inmates. duing “ ‘to the exist- if it make Evidence is relevant tends the determina- ence of fact that is of any consequence
81 tion of the action more or less than it probable probable ” would without v. (People be evidence.’ Monroe 317, 322, 66 Ill. 2d (1977), Fed. R. Evid. quoting 401.) motive is not an element of the of mur Although offense der, evidence of motive be relevant as may proof of the offender. v. identity (People Mangano (1940), 72, 76;
Ill. 58, see 371 Ill. Novotny (1939), 62.) In case, present State the street sought show gang’s victim, for the enmity and the defendant’s associ ation with the gang.
I do not agree with the conclusion that majority’s the evidence of motive presented by State in the case at bar was irrelevant in the absence of proof the defendant was himself aware of all the facts and circumstances rise giving to the alleged (141 motive. Ill. 2d at In 56.) of that rule the support relies majority pri marily People v. Wilson 116 Ill. 2d People v. Mitchell (1984), 1, 10, 105 Ill. 2d and People v. Gougas Ill. 239. In each of those cases, however, only conduct of the particular defendant at issue; in none of the cases was the contention made that the defendant shared, have may or have been acting with, accordance the purpose or motive of another person.
As the majority opinion later acknowledges, evidence of street gang activity may be relevant as of com proof mon purpose design. (141 Ill. 2d at In the 58.) present case, the trial evidence showed that the defendant and two companions entered the tavern after Assistant War den Willis was there and took a already table next where Later, Willis was sitting. Treadis Murray, leader of the King Cobra street gang, summoned one of the defendant’s outside. The companions defendant left the tavern before Willis did and waited for apparently Willis to leave. The defendant was with at the Murray time of his arrest. Other evidence showed that Willis did *34 that Murray, inmates tolerate gang activity by
not Willis. inmate, by subdued physically while an had been the defend- was sufficient to establish This testimony and, gang and the street ant’s involvement with Murray of a motive for moreover, the existence suggested the victim. toward gang’s hostility Assistant Warden Willis’ sure, the evidence of
To be was presented Treadis Murray encounter with prior which, majority as through prison discipline report, under determines, was not admissible correctly opinion (141 rule. to the exception hearsay records business to make hear counsel failed 74.) Ill. at But defense 2d the report, use of trial to the witness’ say objection “considered be evidence, hearsay, may though and the v. Akis (People effect.” its natural probative and given the limited pur In Ill. 2d view 299.) the bare used —to provide for the- report which pose failure the incident —I do believe outlines of of the business requirements of the to satisfy report par. ch. Ill. Rev. Stat. (see records exception See Peo value. evidentiary it of all must 5) deprive 115— 237, 263. v. Collins ple 106 Ill. 2d admissibility concerning doubts Finally, any an by are dispelled the defendant challenged by evidence erro- the trial judge of certain evidence examination In the consideration. from the jury’s excluded neously counsel’s defense case, the trial sustained judge present relevance, to testi- on grounds objections, apparently for additional support have that would provided mony de- rulings These adverse of the case. the State’s theory to establish several the opportunity nied the prosecution and prevented statement made in opening assertions the relevance demonstrating further from prosecution admitted. that was the evidence to intro- the State to allow refused
The trial judge against made that had been of threats duce testimony Assistant Warden Willis an earlier during visit to the Shamrock As Lounge. Willis was the tavern on leaving that occasion, several him persons addressed name by him and told that the neighborhood was theirs and that he should time, leave area. At that was accom- Willis panied addition, another corrections officer. In *35 trial sustained a defense judge objection to the admission of some of the items found in their by police search of the defendant’s residence. The court excluded sheaf all, papers, pages containing regulations, by- laws, of the Cobra street King gang and other informa- tion pertaining gang. The court also excluded two invitations to Cobra King functions that had been held in March April 1985.
The testimony excluded the court by would have pro- vided further evidence of the danger posed Assistant Warden Willis his presence at the tavern, and defendant’s association with the King Cobra If gang. there was error trial, it occurred not because trial admitted judge evidence, too much but because he admit- ted too little.
I would conclude that the State’s evidence of motive relevant, and admissible. The defendant’s trial attor- ney correctly understood that issue in primary case was the strength identification made by Debra an Carraway, eyewitness to the shooting. jury was made aware of Carraway’s possible reasons for falsely implicating defendant, and of her delay coming forward with her counsel testimony. Defense general raised claims only of error in the defendant’s motion for a new trial, and, at the on the mo- hearing tion, counsel declared that the trial had been er- “fairly I ror free.” agree with that assessment. no re- Finding versible error in the below, I affirm proceedings would the defendant’s conviction and sentence.