dissenting:
The court finds that irrelevant evidence of motive was introduced at the defendant’s trial, and the court holds that the error in the admission of the evidence requires that the defendant be granted a new trial. I do not agree with the majority’s conclusions. In my view, the challenged evidence was relevant, and admissible. If error occurred in the proceedings below, it was in the erroneous exclusion of similar evidence offered by the State. For those reasons, I respectfully dissent.
The victim, Yirdeen Willis, Jr., was assistant warden of Pontiac Correctional Center. On June 30, 1985, Willis and a friend, Robbin Howland, drove to Chicago and went to the Shamrock Lounge, a tavern that was owned by Willis’ cousin. During the evening, the defendant, Herbert Stevens, and Robert Spade entered the tavern and occupied a table directly behind Willis and Howland, who were sitting at the bar. Alarmed by the behavior of the defendant and his companions, the bartender armed himself with a handgun that was kept on the premises. At one point, Stevens was summoned outside to talk to Treadis Murray, the leader of the King Cobra street gang. Stevens later returned with several other men. The defendant, Stevens, Spade, and the others left sometime following that.
Assistant Warden Willis and Howland left the tavern with Willis’ cousin around 9 p.m. According to the testimony of an eyewitness, the defendant approached Willis and shot him once in the neck with a handgun. As Willis lay on the ground, the defendant waved the gun back and forth several times and then fled. The defendant was arrested several days later and charged with Willis’ murder; at the time of his arrest, the defendant was talking with Treadis Murray.
In addition to the evidence described above, the trial judge admitted, over the defendant’s objection, testimony that Assistant Warden Willis did not tolerate gang-related activity by inmates and was known as a strict disciplinarian, and that members of the King Cobra street gang were incarcerated in facilities of the Department of Corrections. As assistant warden of Pontiac Correctional Center, Willis was in charge of security for that institution. Also over a defense objection, the trial judge admitted evidence of an incident that occurred in July 1982 and that involved Murray and Willis. At the time, Murray was an inmate of Stateville Correctional Center, and Willis was employed there. After a fight broke out between Murray and another inmate, Willis, who was then a captain, assisted another officer in subduing the two inmates.
Evidence is relevant if it tends “ ‘to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” (People v. Monroe (1977), 66 Ill. 2d 317, 322, quoting Fed. R. Evid. 401.) Although motive is not an element of the offense of murder, evidence of motive may be relevant as proof of the identity of the offender. (People v. Mangano (1940), 375 Ill. 72, 76; see People v. Novotny (1939), 371 Ill. 58, 62.) In the present case, the State sought to show the street gang’s enmity for the victim, and the defendant’s association with the gang.
I do not agree with the majority’s conclusion that the evidence of motive presented by the State in the case at bar was irrelevant in the absence of proof that the defendant was himself aware of all the facts and circumstances giving rise to the alleged motive. (141 Ill. 2d at 56.) In support of that rule the majority relies primarily on People v. Wilson (1987), 116 Ill. 2d 29, 52, People v. Mitchell (1984), 105 Ill. 2d 1, 10, and People v. Gougas (1951), 410 Ill. 235, 239. In each of those cases, however, only the conduct of the particular defendant was at issue; in none of the cases was the contention made that the defendant may have shared, or have been acting in accordance with, the purpose or motive of another person.
As the majority opinion later acknowledges, evidence of street gang activity may be relevant as proof of common purpose or design. (141 Ill. 2d at 58.) In the present case, the trial evidence showed that the defendant and two companions entered the tavern after Assistant Warden Willis was already there and took a table next to where Willis was sitting. Later, Treadis Murray, the leader of the King Cobra street gang, summoned one of the defendant’s companions outside. The defendant left the tavern before Willis did and apparently waited for Willis to leave. The defendant was with Murray at the time of his arrest. Other evidence showed that Willis did not tolerate gang activity by inmates and that Murray, while an inmate, had been physically subdued by Willis. This testimony was sufficient to establish the defendant’s involvement with Murray and the street gang and, moreover, suggested the existence of a motive for the gang’s hostility toward the victim.
To be sure, the evidence of Assistant Warden Willis’ prior encounter with Treadis Murray was presented through a prison discipline report, which, as the majority opinion correctly determines, was not admissible under the business records exception to the hearsay rule. (141 Ill. 2d at 74.) But defense counsel failed to make a hearsay objection at trial to the witness’ use of the report, and the evidence, though hearsay, may be “considered and given its natural probative effect.” (People v. Akis (1976), 63 Ill. 2d 296, 299.) In view of the limited purpose for which the- report was used — to provide the bare outlines of the incident — I do not believe that the failure of the report to satisfy the requirements of the business records exception (see Ill. Rev. Stat. 1987, ch. 38, par. 115 — 5) must deprive it of all evidentiary value. See People v. Collins (1985), 106 Ill. 2d 237, 263.
Finally, any doubts concerning the admissibility of the evidence challenged by the defendant are dispelled by an examination of certain evidence that the trial judge erroneously excluded from the jury’s consideration. In the present case, the trial judge sustained defense counsel’s objections, apparently on grounds of relevance, to testimony that would have provided additional support for the State’s theory of the case. These adverse rulings denied the prosecution the opportunity to establish several assertions made in opening statement and prevented the prosecution from further demonstrating the relevance of the evidence that was admitted.
The trial judge refused to allow the State to introduce testimony of threats that had been made against Assistant Warden Willis during an earlier visit to the Shamrock Lounge. As Willis was leaving the tavern on that occasion, several persons addressed him by name and told him that the neighborhood was theirs and that he should leave the area. At that time, Willis was accompanied by another corrections officer. In addition, the trial judge sustained a defense objection to the admission of some of the items found by the police in their search of the defendant’s residence. The court excluded a sheaf of papers, 77 pages in all, containing regulations, or bylaws, of the King Cobra street gang and other information pertaining to the gang. The court also excluded two invitations to King Cobra functions that had been held in March and April 1985.
The testimony excluded by the court would have provided further evidence of the danger posed to Assistant Warden Willis by his presence at the tavern, and of the defendant’s association with the King Cobra gang. If there was error at trial, it occurred not because the trial judge admitted too much evidence, but because he admitted too little.
I would conclude that the State’s evidence of motive was relevant, and admissible. The defendant’s trial attorney correctly understood that the primary issue in the case was the strength of the identification made by Debra Carraway, an eyewitness to the shooting. The jury was made aware of Carraway’s possible reasons for falsely implicating the defendant, and of her delay in coming forward with her testimony. Defense counsel raised only general claims of error in the defendant’s motion for a new trial, and, at the hearing on the motion, counsel declared that the trial had been “fairly error free.” I agree with that assessment. Finding no reversible error in the proceedings below, I would affirm the defendant’s conviction and sentence.