dissenting:
I disagree with the result reached by the majority and consequently I dissent. It is generally held that evidence indicating the defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. (People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.) Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged. People v. Wadley (1988), 169 Ill. App. 3d 1036, 523 N.E.2d 1249.
In this case, the only evidence the State proffered of defendant Wesley King’s gang activity was testimony by Rico that he had seen King in the company of Vice Lords, a rival gang. He testified that before he spoke to codefendant Williams about the $25 he owed to Williams, decedent told him not to talk to those “Hooks.” Rico testified that “Hooks” is a term for Vice Lords. He further testified that the Vice Lords and Disciples have “bad blood” between the two gangs. Rico also stated that he and decedent were members of the Disciples street gang, and that although codefendant Williams was not a member of the Vice Lords at the time of the incident, codefendant Williams had been a member of that gang. I find the evidence presented was not sufficient to prove King’s gang membership, activity or that the murder was gang related.
Defendant cites People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900, for the proposition that where the State’s theory of gang membership to show motive is not supported by the evidence, reversal of a defendant’s conviction is required. In Smith, defendant was convicted of murdering a State prison warden who had a reputation for being tough on gang-related activity at the prison. The State’s theory of the case was that the warden had been killed by orders of two inmates who were allegedly gang members and had previously had an altercation with the warden. At trial, an assistant warden testified that he had known decedent all his life. Over defense counsel’s objection, the State attempted to elicit testimony from the assistant warden concerning the type of gang activity existing in the prison system. After a sidebar, the court allowed the State to introduce evidence that: the two inmates had previously had an altercation with the warden; there was gang activity in prison; and decedent was a strict disciplinarian. In reversing the appellate court, the Illinois Supreme Court stated that the evidence offered by the State to prove motive was of little probative value. The only evidence offered indicated that there was a variety of gang-related activity in the prison; that the warden was intolerant of such activity; that two inmates at the prison had had an altercation with the warden; and that defendant had been seen in an apartment of one of these inmates on one prior occasion. The court held that this evidence was “simply too slim a thread upon which to tie the State’s theory of motive.” Smith, 141 Ill. 2d at 59; accord People v. Maisonet (1979), 138 Ill. App. 3d 716, 486 N.E.2d 277, 279.
I find the Smith decision instructive. The fact that King here had been seen in the company of gang members on a prior occasion is inconclusive of whether King in fact was a member of or active with a gang. In reviewing the record, I find no additional evidence to support the State’s theory that the murder of decedent was related to King’s alleged gang affiliation. The witness did not testify to the circumstances of King’s past presence in the company of gang members, or to the number of occasions he had seen King in their presence. There was no evidence of King or anyone else present exchanging gang symbols, no evidence of gang colors, or any other indicia of gang membership, and in fact, no evidence that King even heard decedent’s comment about the “Hooks.” The State’s theory suggested that there was “bad blood” between the Vice Lords and Disciples. However, both Rico and codefendant Williams were friends. Additionally, the evidence at trial revealed that only a shoving and pushing match took place. The State never produced evidence that the group of men leaving the building were Vice Lords, nor that there was rivalry between the two gangs. There is a dearth of evidence to prove that King was acquainted with Stevon or knew him to be a member of any gang. Therefore, I conclude that the improper evidence of gang-related activity prejudiced the jury and constituted a material factor leading to King’s conviction.
Additionally, as King further contends, the State compounded this error by its reference to gang-related activity both during opening statements and closing arguments, which in my judgment deprived him of a fair trial. The evidence of gang affiliation referred to both during the State’s opening statement and in closing argument was nonexistent. The evidence did not show that King was a member of a rival gang and only showed that codefendant Williams once upon a time, but not presently, had been a gang member. There was not a scintilla of evidence that the individuals who came out of the building to watch the fight were members of the Vice Lords. In fact Butler, who was one of the men exiting the building (according to the State— a Vice Lord), and Rico (an admitted Disciple) were the two who broke up the fight. Additionally, Williams (according to the State — a Vice Lord) and Rico (an admitted Disciple) were friends. However, after explaining to the jury its theory of what it expected the evidence would show, it should have become clear after the State’s witnesses testified that the anticipated testimony of gang affiliation did not exist. Moreover, there is nothing in the record to support the allegation that Rico feared retaliation by rival gang members if he was sent to the penitentiary or that Monique told two different stories because she was afraid of gang retaliation.
Attorneys are allowed considerable leeway in making closing and rebuttal arguments, and the scope of closing argument falls within the discretion of the trial court. (People v. Simms (1988), 121 Ill. 2d 259, 520 N.E.2d 308.) However, improper remarks warrant reversal if substantial prejudice to defendant occurs. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.
I reiterate that there was a lack of evidence in the record to support the theory that the murder was gang related and that Rico feared gang reprisals if he went to the penitentiary. Therefore, the comments by the prosecutor during closing and rebuttal argument intimating this were substantially prejudicial to King. This is particularly true where the prosecutor persisted in argument after the court admonished him not to refer to Rico’s fear of gang reprisals if he went to prison. People v. Mullen (1990), 141 Ill. 2d 394, 404, 566 N.E.2d 222; People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402.
I further find that the court erred by allowing the State to impeach its own witness without laying a proper foundation. During direct examination of Monique Chambers, the following questions were asked:
“[Prosecutor]: *** After the fight ended, where did Wesley and Alan go?
[Monique]: Around to the front of the building.
Q. Did you see whether or not they went into the building?
A. No.
[Defense Counsel]: Objection.
THE COURT: Overruled.
[Prosecutor]: Did you see where they went at all after they went around to the front of the building?
A. No.”
Subsequently, the State called Detective Carey as an impeaching witness. Detective Carey made reference to statements made by Chambers to him, and defense counsel objected. At sidebar, the State made an offer of proof that Detective Carey would testify, among other things, that Chambers told him she saw defendant and Williams run back into the building after the fight. The court determined that the proper foundation had been laid. The court advised defense counsel that Chambers could be subpoenaed back to testify again. Carey then testified as follows:
“[Monique] said after the altercation between Stevon Draine and Mr. Williams that Mr. Williams and an individual by the name of Wesley King left their presence and walked into a building which would have would be approximately — approximately 2409 East 72nd Street. It’s right on the comer of 72nd and Phillips. They went into that building.”
It is true that a witness may be impeached by proof that she made a statement outside of court contradicting her in-court testimony, or that she failed to speak under circumstances where it would have been natural to relate the matter testified to in court if true. However, before a prior inconsistent statement of a witness is allowed into evidence for impeachment purposes, a proper foundation must be laid. (People v. King (1987), 157 Ill. App. 3d 76, 511 N.E.2d 685.) The impeachment of a witness with a prior inconsistent statement must be preceded by directing the attention of the witness to the time, place, circumstances and substance of the inconsistent statement. People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31; People v. Cowper (1986), 145 Ill. App. 3d 1074, 493 N.E.2d 729.
Here, the court itself expressed some doubt in allowing the testimony into evidence. The court stated that, “I may be criticized for [letting it in, but] I’m going to let it all come in, both sides.” The court erroneously determined that a proper foundation had been laid for the statement, and Detective Carey was allowed to testify as to the alleged inconsistent statement.
I have carefully reviewed the record and find that a proper foundation necessary for impeachment was not established. While Chambers acknowledged on direct examination that she had spoken to a detective about having seen Wesley with a gun, having heard a shot and seen fire coming from the gun, she never was asked by the prosecutor whether she told the officer that she saw Williams and defendant enter the building after the fight. The State, in its brief, seems to have misconstrued which statement the defense takes issue with.
The prosecutor did not direct Chamber's attention to the time, place, circumstances and substance of any alleged inconsistent statement purportedly made by her about defendant entering the building. The court’s recollection was in error recalling that the proper foundation had been laid. By failing to require the State to lay the proper foundation before allowing introduction of the prior inconsistent statement, the court erred. The question then becomes whether the error was harmless.
In determining whether evidentiary errors may be categorized as harmless, we must look to whether the “properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant.” People v. Carlson (1982), 92 Ill. 2d 440, 449, 442 N.E.2d 504.
While the majority concedes that the State failed to lay a proper foundation, but attempts to minimize its significance, the importance of this error becomes evident in the context of what Monique’s testimony had established. It revealed that during the altercation between codefendant Williams and decedent Draine, Monique was standing 35 to 40 feet south on Phillips. The building extended for almost an entire one half of the block on Phillips. When the fight ended, Stevon walked south on Phillips to rejoin Monique, Anita and Rico. It is undisputed that codefendant Williams and King walked around the corner on 72nd Street and both State occurrence witnesses testified that it was impossible to see around the comer. Consequently, it would have been impossible for Monique to have seen Williams or King enter Williams’ apartment building. Moreover it is undisputed that neither of the defendants was armed with a gun during the fight. Hence, the State was unable to show that either of the two defendants ever entered Williams’ apartment after the fight ended to obtain a weapon, which was the State’s theory as it sought to impeach Monique as to this fact. Accordingly, I find the court’s error in allowing the State to impeach Monique in the absence of a proper foundation was prejudicial to King and reversible error.
Moreover, the State presented two witnesses, one of whom was a convicted felon who was given leniency in a pending case in exchange for his testimony in the case at bar. The other was Monique Chambers, whose prior inconsistent statement placed the gun in King’s hand. However, at trial she recanted that statement. Ms. Chambers’ credibility, or lack thereof, was placed into issue by the State, notwithstanding that she was a prosecution witness.
While the State suggests in its brief that Monique’s statement was offered both as impeachment and as substantive evidence, the State apparently misconstrues the requirements of the statutory provision that allows certain prior inconsistent statements to be received as substantive evidence. As a prerequisite to its admission under the statute, the prior statement must either have been made under oath at a trial, hearing or proceeding, or proved to have been written or signed by the witness, or the witness acknowledged under oath the making of the statement, either in his testimony at a trial, or in some other hearing, or the statement is proved to have been sound recorded by electronic means.
As previously pointed out, at trial the State failed to elicit from Monique whether she acknowledged making the prior statement and clearly there is no evidence that the prior statement was under oath, in writing or sound recorded. Hence, it is clear that the State failed to meet the requirements of the statute and the statement was not properly received as substantive evidence.
Credibility was the crux of the ease, and the evidence was not close to being overwhelming considering the type of witnesses the State presented. The court expressed its willingness to accept Chambers’ statement provided the proper foundation was laid. The court stated:
“Substantive or impeaching is one thing but I think you should lay a foundation first *** just lay a foundation.”
After a lengthy colloquy with both counsel, the court appears to have accepted all of Detective Carey’s testimony as impeachment. The court ruled:
“I’m going to let it all in because you’re still going to go to impeachment. I’ll let it all in.”
It clearly appears from the record that the proper foundation had not been laid for impeachment, although the court allowed the statement into evidence for that purpose. Hence, I would find that the error was prejudicial and mandates reversal.
King further maintains that the trial court erred by refusing to allow a defense witness to proffer testimony that would have impeached the credibility of the State’s key witness. The State asserts that the court acted within its discretion by disallowing the testimony into evidence because the witness had already admitted making the statement upon cross-examination. Defense counsel asked the State’s witness, Rico, if he recalled stating to Krawczyk that if he were called to testify he might lie or he might tell the truth. Rico stated on cross-examination:
“No. I told him that if I was called, I would tell the truth. I told him — I told him that. I told — I told, you know, you know, I told him a story, you know. That is what I told him. I told you, if they do call me, I will tell the truth. I am not going to —.”
During King’s case, defense counsel asked Albert Krawczyk whether Rico was questioned about his testimony in the case. The State objected on the grounds that the witness had admitted talking with Krawczyk and that any additional testimony would be cumulative hearsay. The court held a sidebar, after which it stated that the witness had admitted that he made the statement. Therefore, according to the court’s recollection, any testimony by Krawczyk would not have been impeaching, and the State’s objection was sustained.
However, as reflected by the above quotation from the record, clearly Rico denied making a statement to attorneys that he might lie on the -witness stand if called to testify. Defense counsel then made an offer of proof that Krawczyk would testify that Rico said if he was called to testify in the case he did not know if he would lie or tell the truth. The court’s ruling not to allow the impeachment testimony was based on its imprecise recollection that Rico had admitted to making the statement and that the statement would therefore not be impeaching.
The majority concludes that defendant failed to raise this argument in his post-trial motion and that it is therefore waived. Although it is true that defendant faded to raise the issue of the court’s failure to allow impeachment of Krawczyk in his post-trial motion, I have carefully reviewed the State’s brief and find that no issue arguing waiver is raised therein. Further, there are exceptions to the waiver rule when there has been plain error affecting substantial rights which deprive the accused of a fair and impartial trial. (People v. Smith (1990), 141 Ill. 2d 40, 55, 565 N.E.2d 900.) Application of the plain error exception is appropriate here in light of the State’s prejudicial reference to gang-related activity and the type of witnesses presented by the State. There was no evidence of defendant’s membership in or activity with a gang, nor did the witness who testified provide evidence of the circumstances surrounding defendant’s past presence in the company of gang members. Moreover, as mentioned earlier, one of the witnesses presented by the State was a convicted felon who was given leniency for his testimony, and Chambers’ testimony was less than credible. The errors committed in opening and closing arguments by the State could conceivably have inflamed the jury. Moreover, the trial court allowed testimony by Chambers into evidence without requiring the proper foundation.
I find that King was denied a fair trial by the cumulative effects of the court’s admission of testimony and argument relating to gang affiliation, the admission of a State witness’ testimony without the requisite foundation being laid, and the court’s failure to grant defendant the opportunity to impeach a State witness. I conclude that these factors were substantially prejudical and constituted a material factor leading to his conviction. (Smith, 141 Ill. 2d at 79.) Accordingly, I would reverse and remand for a new trial.
Therefore, I respectfully dissent.