dissenting:
I respectfully dissent. The appellate muddle over IPI Criminal 4th No. 3.15 was resolved by our supreme court in People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005), as the majority correctly notes. Giving the instruction in its old form has been held to be plain error under Herron, reduced to harmless error only if the evidence is not closely balanced. The majority then finds the evidence closely balanced in this case because “the self-contradictory testimony of a drug-using intoxicated witness” was the principal evidence introduced by the State. 361 Ill. App. 3d at 814. In fact, the only evidence offered by the defendant was the attempted impeachment of the credibility of that witness. So it could be argued from this record that the evidence is not closely balanced: the drug-using intoxicated witness stuck to her story in the face of withering cross-examination by brilliant defense counsel under the glare of juror scrutiny.
The majority criticism of gang crimes evidence is equally unpersuasive. The evidence offered by the State was within the boundaries announced in People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d 405 (2003), and in keeping with the right of the State to show motive for otherwise inexplicable acts. The record reveals a senseless gang rivalry, punctuated by ruthless responses to perceived slights. Of course it is prejudicial. But it is also probative and the jury had a right to hear about this apparently senseless assassination in context. To shield a jury from the State’s theory of the case hardly creates an even playing field for a criminal trial.
This defendant received a fair trial. I would affirm.