dissenting:
I respectfully dissent. Although I agree with the majority that the circuit court erred in allowing the State to use defendant’s notebooks against him, I would hold it to have resulted in no prejudice to defendant and that the error was therefore harmless because even without the irrelevant notebooks, there was more than abundant evidence presented by the State to sustain the jury’s verdict that defendant was guilty of second-degree murder. See People v. Maldonado (1992), 240 Ill. App. 3d 470, 608 N.E.2d 499; People v. Portis (1986), 147 Ill. App. 3d 917, 498 N.E.2d 675; cf. People v. Gonzalez (1989), 188 Ill. App. 3d 559, 544 N.E.2d 1044 (reversing the defendant’s conviction for erroneous admission of gang membership evidence only after concluding that the inadmissible evidence prejudiced the defendant).
Defendant’s theory of the case was that he fired the weapon he carried in apprehension of his safety, a fear instilled by the overtly threatening conduct of Runno Thames, Nathan Taylor and their companions. He also testified that he fired only after he was provoked by the gang members who beat him. However, with the exception of defendant’s self-serving testimony and the faulty recollections of Mark Hatcher, no evidence presented significantly corroborates his version of the events of the evening of February 16, 1989.
First, defendant’s conduct on the night in question belies his contention that he was the innocent victim of a gang assault, and his relative incredibility may explain why the jury chose not to find his shooting of Taylor justified. Immediately after shooting the weapon he fled from the scene and went not to his own home, but to his brother’s girlfriend’s home, a location where it would likely be difficult for police to find him. He surrendered himself to police only after his mother informed him that the police sought him for questioning. One would think that an individual who had endured defendant’s experiences would not immediately flee the scene, but instead would actively seek out the authorities, or, at the very least, would stay to explain to the police who would inevitably arrive why he was compelled to fire a deadly weapon not only at Taylor and Miller, against whom defendant claims he was defending himself, but also why he fired two carefully aimed shots at West, an innocent bystander who was waiting for his son to emerge from school and whose only offense vis-a-vis defendant was to tell him to stop firing. In fact, defendant’s second shot at West was fired while defendant was approaching him and while West was shielding himself from the gunfire by hiding behind the seats of his car.
In addition, there are unexplained inconsistencies in defendant’s testimony which raise grave doubts as to the veracity of his story. At trial, he attested that he was attacked by a group of gang members brandishing sticks. This version differed from the one he initially gave police in which he twice omitted reference to sticks, telling police only that his attackers beat him with their fists. Even these first two tales are uncorroborated by physical evidence, since defendant bore no physical marks or bruises to substantiate any beating.
Most important, without regard to the untenability of defendant’s self-proclaimed justification for the shooting, I consider the State’s evidence of his guilt exclusive of the inadmissible notebooks to be extensive. For example, it offered the testimony of Runno Thames, an eyewitness, who stated that prior to the incident, no one in his group even touched defendant, but that the shooting was triggered by a simple verbal confrontation between defendant and Taylor. According to Thames, when defendant first fired the weapon, the decedent was the closest to him and, at that time, he was more than an arm’s length away. Taylor’s version was corroborated by Miller, another of defendant’s victims, who agreed that there was no assault prior to the shooting. Miller added that the shot which hit him in the groin was carefully aimed by defendant, contrary to defendant’s testimony that he fired four quick shots with his eyes closed. West also testified that defendant, as the majority acknowledge, "turned and shot” Miller.
Indeed, I consider West’s testimony most persuasive. He testified that he watched the shooting from a position which afforded him an unobstructed view, and that he saw defendant emerge from the Academy of Our Lady and confer with two individuals in front of the school. Soon thereafter, defendant pulled out a pistol from his portfolio and fired it at one of the youths. West did not refer to any provocation which preceded the shooting and which would lead the jury to infer that defendant was justified. In fact, he stated that at the time of the shooting, defendant was standing on the sidewalk and the victim was in the middle of the street, thus suggesting that no assault actually preceded, much less precipitated, defendant’s use of the pistol.
I find nothing in the record which discredits West or which indicates that he was worthy of less than the complete belief the jury must have accorded him; thus, I find his testimony alone sufficient to establish the elements of the crime for which defendant was convicted, namely, second-degree murder. (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 2; see People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78 (holding that a person commits second-degree murder if, inter alia, she intentionally kills another believing that the circumstances justify her acts, but the belief is found to be unreasonable).) Our supreme court has held that "[w]hen the competent evidence in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result, the conviction may be affirmed.” (People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658, 662.) Since there exists enough proper evidence in the record even excluding the challenged evidence, to establish defendant’s guilt for second-degree murder beyond a reasonable doubt, I would affirm defendant’s conviction for that crime.