specially concurring in part and dissenting in part:
While I do concur with the majority that the trial court did not err in admitting defendant’s statements, I must respectfully dissent with that portion of the opinion which holds that the admission of the gang life evidence did not deprive defendant of a fair trial.
There is no question that motive was an issue in this case, and that element was firmly established by the admission of defendant’s statement that the shooting was done in retaliation for the earlier homicide of a fellow gang member. However, the gang fife testimony of Officer Jarmusz far exceeded that quantum of evidence which was necessary to establish motive or corroborate certain portions of the statement. What may have started out as corroborative testimony burgeoned into an exposition on the pervasiveness and evils of street gangs in Chicago, the only conceivable purpose of which was to prejudice defendant in the eyes of the jurors. Even the majority acknowledges that the “torrent of detail concerning gang Ufe” was “testimonial overkill.” 328 Ill. App. 3d at 202.
The central issue was whether defendant was present at the scene of the crime and, therefore, accountable for the victim’s murder. There was no physical evidence or eyewitness testimony linking defendant to the crime scene. In fact, there was some discrepancy between defendant’s statement that the victim was shot at close range as he was standing next to the car and the medical examiner’s testimony that there was no evidence of close-range firing. The only evidence the State presented linking defendant to the crime scene was his confession, which he challenged through his testimony that he was not present at the scene of the murder and that his statements to the police were based solely upon what was told to him by others who were actually there, and that he was simply telling the police what they wanted to hear in an effort to “deal” his way out of prison. Whether or not this court finds his testimony credible is irrelevant, for it is not our job as a court of review to reweigh the evidence and determine matters of credibility.
In this case, the fairness of defendant’s trial was severely compromised by the introduction of what I believe to be highly irrelevant, inflammatory and excessive gang testimony. The admission of this evidence brings into serious question whether the jury fairly considered defendant’s alibi evidence through the testimony of Patricia Turnercobb and defendant’s testimony regarding the circumstances surrounding his statements. I find it highly unlikely that the jury could have ignored this “torrent” of “overkill” when evaluating the defense.
Officer Jarmusz had absolutely no knowledge about this case, defendant or the circumstances surrounding the arrest and was called solely for his expertise on street gangs. Rather than establish motive, he simply gave the jury a crash course on Chicago’s street gangs. Furthermore, his testimony that feuds and wars between gangs within the People erupt from time to time due to turf control problems arising out of the “sale and distribution of narcotics” implied that defendant was dealing in drugs, an implication not supported by the record. Not only was the probative value of that evidence far outweighed by its prejudicial impact, it permitted the jury to draw insupportable inferences of other crimes.
The majority distinguishes Mason based upon the fact that the defendant and the victim in that case were members of the same gang, whereas in the instant case the defendant and victim were members of opposing gangs. I find that to be a distinction without a difference. What Mason held was that while the organizational structure of the Gangster Disciples was relevant to the State’s case in order to demonstrate defendant’s possible motive for shooting the victim, the facts about gang rivalries, presentment, graffiti, tattoos and drug sales clearly did not go to motive. Mason, 274 Ill. App. 3d at 722. Similarly, in the instant case, while the organizational structure of the Black-stones, the Mafia Insane Vice Lords and their umbrella organization, the People, might have been relevant to demonstrate defendant’s motive for participating in the murder of a suspected member of a gang within the People organization, the facts about graffiti, tattoos, logos, hand signals, clothing and drug sales clearly did not prove or establish motive.
While the majority does not use the phrase “harmless error,” I assume that is what is meant when it finds that in spite of these errors defendant received a fair trial. However, since the evidence in this case was far from overwhelming and rested solely upon defendant’s challenged statements, harmless error is not the escape hatch we should utilize in placing our imprimatur on what I deem to be an unfair trial.
For these reasons, I would reverse and remand the cause for a new trial.