concurring in part and dissenting in part:
I respectfully dissent from the majority opinion affirming defendant’s conviction for first degree murder, and for sentencing defendant as an adult on his conviction for possession of a controlled substance. I would reverse defendant’s conviction for murder, remand this matter for a new trial on the murder charge, and also remand this matter for a new sentencing hearing on defendant’s drug conviction.
I
The majority’s conclusion that “[b]oth offenses arose out of the same incident” (347 Ill. App. 3d at 229-30) is not borne out by the record. It is clear from the evidence on appeal that defendant’s arrest for possession of a controlled substance with intent to deliver is distinct and wholly unrelated to the shooting death of Officer Ceriale. In addition, the majority has failed to detail the procedural history explaining how “identical” testimony from the first trial, a mistrial which failed to sustain a conviction for murder, was allowed during defendant’s second trial. I find that the evidence of the drug offense constitutes improper admission of other crimes evidence.
In general, evidence of other crimes is not admissible if it is relevant merely to establish the defendant’s propensity to commit crime. People v. Kliner, 185 Ill. 2d 81, 146 (1998); People v. Illgen, 145 Ill. 2d 353, 364 (1991). Evidence of a defendant’s commission of other crimes is admissible where relevant to prove any material question other than the defendant’s propensity to commit crime, including modus operandi, intent, identity, motive, or absence of mistake. People v. Thingvold, 145 Ill. 2d 441, 452 (1991). In considering the admissibility of other crimes evidence, the trial judge must weigh its probative value against its prejudicial effect on the defendant, and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. The trial court’s ruling as to the admissibility of other crimes evidence will not be reversed absent a clear showing of abuse of discretion. See Illgen, 145 Ill. 2d at 364.
In applying the above principles to the present case it is clear that the trial court improperly merged defendant’s drug offense into the trial on defendant’s charge for murder, thereby erroneously admitting evidence of other crimes. The State’s theory of the case, that the murder of Officer Ceriale grew out of a drug sale operation, is speculative at best. The evidence shows that defendant shot at an individual who was hidden in a “wooded area” at 3 a.m. There is no evidence connecting the shooting of Officer Ceriale to any purported drug sale operation three days earlier. The merging of these two unrelated offenses into one trial was highly prejudicial to defendant.
In furtherance of the improper merging of the two offenses, the State submitted the testimony of Sergeant Moore, who testified in great detail as to the alleged drug sales operations of the Gangster Disciples at 4101 S. Federal and its neighboring buildings. Sergeant Moore’s testimony was excessive, unrelated to the facts of the State’s case for first degree murder, prejudicial to defendant and therefore improperly admitted.
Police testimony regarding gang activity is admissible if (1) it qualifies as expert opinion; (2) it is relevant, and (3) its prejudicial effect does not outweigh its probative value. People v. Cruzado, 299 Ill. App. 3d 131, 141, 700 N.E.2d 707, 714-15 (1998). The testimony of Sergeant Moore did not meet any of the above three elements of admissibility.
The record shows that the State failed to lay a proper foundation for admission of the testimony of Sergeant Moore as an expert regarding the gang-related drug-selling operations at the buildings located at 4101 S. Federal and 4037 and 4022 S. State. Sergeant Moore testified that he had a bachelor’s degree in business administration from Chicago State University and was an 11-year veteran of the Chicago police department, working as a plainclothes officer for four years in Chicago Housing Authority buildings. Based on this limited “experience,” and despite the fact that Moore did not know of defendant until two days prior to the shooting, Moore was permitted to testify as to the detailed inner workings of the Gangster Disciples drug operation at these Robert Taylor Homes, including which specific individuals worked “security” and the actual hours of security “shifts,” where drugs were kept, where weapons were hidden, “codes of honor,” “violations,” and the estimated gross daily receipts from drug sales as $2,300. Although upon defense objection the trial court instructed the State that it would admit no further evidence regarding violations, Moore had already offered his “opinion” as to gang symbols, slogans, history, structure, and even asserted that small “Ziploc” bags have no use other than to serve as containers for drugs. Moore admitted that he had no knowledge of the facts of the present case and that his testimony was based upon his “years of experience.” Moore testified that he never had any dealings with defendant and never spoke to him.
Second, Moore’s testimony was as irrelevant to the evidence at trial, as was the State’s theory of the case to the evidence at trial. The majority correctly states that “[g]ang-related evidence is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act.” 347 Ill. App. 3d at 221. However, the majority also states that “such evidence must relate to the crime charged.” 347 Ill. App. 3d at 222; People v. Davenport, 301 Ill. App. 3d 143, 151, 702 N.E.2d 335, 342. Such is not the case here. The evidence here revealed only that defendant shot through the shrubbery after seeing some sort of movement. There was no evidence that defendant even knew that there was a police officer in that wooded area, there was no evidence of the shooting as related to a purchase and sale of drugs, and no evidence of witnessing the exchange of merchandise. There is no evidence that defendant, at age 16, was any sort of drug tycoon or chief executive officer of the Gangster Disciples. There is, alas, no evidence of any gang-related motive to the shooting of Officer Ceriale which would support admission of Officer Moore’s testimony. Under the specific facts of this case, it is it is clear that the prejudicial effect of Moore’s testimony far outweighed its probative value.
The facts of case are palpably distinct from the case People v. Clifton, 342 Ill. App. 3d 696 (2003), upon which the State relies,1 and where all of the above three elements of Cruzado were found to have been fulfilled at trial. Clifton involved the murder of Leon Holton and the attempted murder of Eddie Brown. The evidence at trial revealed that both the defendants and the victims were notorious members of the Gangster Disciples street gang. The State’s theory of the case was that the murder and attempted murder resulted from the federal indictment of 39 other Gangster Disciple gang members on August 31, 1995, and the “jockeying” among remaining gang members for leadership positions.
Detective Thomas Richardson was certified as a gang expert based on the following qualifications: he was a Chicago police officer for 27 years and a “gang specialist” for 18 years. His main function as a gang specialist was to monitor and obtain information about street gangs, including the Gangster Disciples. Since 1992, Richardson had been detailed to an investigation with federal authorities into the Gangster Disciples. The trial court permitted Richardson to testify as an expert generally, as to the internal hierarchy and structure of the Gangster Disciples, specifically, as to matters of money and power within the gang, and to the specific fact that gang member Chuck Dorsey was “ ‘given the OK by Larry Hoover’ ” to take control of the city for the gang. Clifton, 342 Ill. App. 3d at 708.
On appeal, this court initially affirmed admission of Richardson’s testimony as an expert, finding that there was “ ‘no showing that the average layperson has any understanding of the inner workings of gangs *** or of the jury’s common knowledge of them.’ ” Clifton, 342 Ill. App. 3d at 708, quoting Cruzado, 299 Ill. App. 3d at 141. The court further found that Richardson’s more detailed testimony explaining the organizational structure of the gang’s leadership, including the identity of the gang members and their ranks and rivalries, was reliably based on variety of sources and specifically relevant to explain the murder and attempted murder of fellow gang members. Clifton, 342 Ill. App. 3d at 708-09.
Second, the Clifton court found that Richardson’s testimony was relevant to the State’s theory of the case as a gang-related motive. In People v. Davenport, 301 Ill. App. 3d 143, 150-51, 702 N.E.2d 335, 341-42 (1998), we held that “[rjelevant evidence is that which has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable than it would be without the evidence.” Relying on Davenport, the court in Clifton held that Richardson’s testimony supported the theory that there existed a leadership vacuum within the gang after Hoover’s conviction and Dorsey’s murder. Clifton, 342 Ill. App. 3d at 711.
Finally, the court found that the probative value of Richardson’s testimony outweighed its prejudicial effect as it provided “ ‘a motive for an otherwise inexplicable act.’ ” Clifton, 342 Ill. App. 3d at 711, quoting Davenport, 301 Ill. App. 3d at 151, 702 N.E.2d at 342. This court found that the killing of Holton and the shooting of Brown would be inexplicable without the gang-related evidence.
People v. Mason, 274 Ill. App. 3d 715, 653 N.E.2d 1371 (1995), is instructive. In Mason, the defendant and the victim were both Gangster Disciples. The State introduced gang specialist testimony to support its theory of motive, which was that defendant was ordered to kill the victim by a superior member of the gang, who was concerned that the victim would become an informer for the State. This court concluded that gang crime specialist testimony was irrelevant, inflammatory, and excessive. While the structure of the Gangster Disciples was relevant to the State’s theory of motive, testimony regarding gang rivalries, tattoos and drug sales was not relevant. Mason, 274 Ill. App. 3d at 722, 653 N.E.2d at 1375-76. This court concluded that defendant was denied a fair trial.
Here, there is no evidence of a gang dispute, a gang “hit,” or any gang rivalries. There is a distinction between a case where the victim and the defendant are rival gang members, and this case, where the victim is a police officer. Sergeant Moore was brought in by the State to make it appear as though defendant, as the State would have this court believe, was a high-ranking drug-dealer, seeking revenge against the police who foiled his attempt to engage in a large narcotics sale three days prior to the shooting. However, the evidence at trial revealed that no drug sale was observed, and although the record is silent as to whether defendant was admitted to bail, this court knows that defendant was released on bail, because a mere three days after his arrest he was “walking guard duty” at the Robert Taylor Homes. There is no argument made that defendant was a fugitive from the law at the time of his arrest for the shooting.
In Davenport, although we ultimately affirmed the defendant’s conviction, we advised that the prosecutorial tactics employed “ ‘push[ed] the envelope.’ ” Davenport, 301 Ill. App. 3d at 152. Here, the State has signed, sealed and delivered a reversible letter.
II
I further find that the admission of the prior inconsistent statements of the six recanting witnesses is reversible error. Serious doubt exists as to the voluntary nature of the original inculpatory statements of the recanting witnesses, who were held in police custody for up to 24 hours prior to being forced to testify before the grand jury.
• Lacole Dismuke testified at the grand jury that at the time of the shooting, she was at the east side of the building located at 4101 S. Federal and saw defendant fire a gun.
At trial, Lacole stated that she was held by police for 14 hours. Lacole denied being an eyewitness to the shooting and denied telling police anything about the shooting or about a Gangster Disciple drug operation at 4101 S. Federal. Lacole testified that she did not see the shooting because she was actually located on the west side of the building when the shooting occurred. Lacole stated that when she heard the gunshot, she ran to apartment 810 in 4037 S. Federal and watched emergency vehicles arrive from that apartment. Later that morning, Lacole returned to apartment 609 in 4101 S. Federal, where she stayed with her sister. There, Lacole’s sister showed Lacole a gun, and Lacole handled the gun.
Lacole further testified that five police officers awoke her at 4 a.m. on August 17, 1998, by banging on her door, and transported her to Area One police headquarters. Lacole stated that after coaching from the detectives, she met with Assistant State’s Attorney Kelly and repeated the story that the police told her to tell. Lacole stated that her sister and Tameesha Bolden were also coached as to what to say at the grand jury.
• Carlos Hendricks testified at the grand jury that he saw defendant shoot a gun on August 15, 1998. At trial, Hendricks testified that he was in police custody for more than 24 hours. Hendricks testified that at 3:30 a.m. on August 15, 1998, he was in his sister’s apartment at 4037 S. Federal, and that he did not see who shot Officer Ceriale. At one point during his detention, the door to the interrogation room was left open and an unidentified man walked past the door, pointed at Hendricks, and said: “That’s him.” Hendricks was taken directly to the grand jury after giving his statement.
• Calvin Brown was 17 years old at the time of the shooting. Brown testified that although he “voluntarily” turned himself in to police, he was held by police for more than 20 hours and questioned outside the presence of his mother, even though his mother was present at the police station. Brown further stated that he was left alone in the interview room, without food or blankets, and later placed in a cell until Detective Murray returned to his shift and continued to question Brown. Brown testified that the story he eventually agreed to tell police was flawed, stating that if he and the shooter had both been in the locations he described in the statement, Brown could not have seen fire coming out of the end of the gun, as asserted in the statement.
Brown’s mother, Catherine Smith, testified that she had been at Area One with her son initially, then left and returned after work, to find that her son was still in custody after 20 hours. Smith testified that when she saw Brown, he looked scared and upset and told her that he was cold and hungry, and that police had hit him. While Smith was at Area One, a detective showed Brown a yellow tablet displaying a hand-drawn diagram of the area around 4101 S. Federal, showing the location of benches and where certain individuals were thought to have been standing at the time of the shooting. Brown told the officers that the drawing did not accurately depict the scene at the time of the shooting. However, after the detectives left the room, Brown told Smith that even though he had nothing to do with the shooting, he was going to adopt the story concocted by the police because he feared being charged as an accessory to the crime and doing time in jail. Brown signed the statement at 12:30 a.m.
• Fannie Louise Howard testified that she was held by police and kept awake for 24 hours prior to her grand jury testimony. Howard stated that when the police arrived at her apartment on August 17, 1998, she was high on alcohol and marijuana. She stated that the police refused to question her at home, tore her from the arms of her crying children, and transported her to police headquarters, where police surrounded her and yelled at her, and Howard stated that Detective Edward Adams took a false statement from her at 3 a.m. Howard testified that the falsity of the statement is shown by the fact that although the statement says that Howard watched through her chained door as defendant approached apartment 609, in fact, when the chain is attached to the door of Howard’s apartment, Howard cannot see the entrance to apartment 609, which is down the hall from Howard’s apartment.
Howard testified that after she signed the statement, she was escorted back to her apartment by two female police officers and Detectives Rose and Adams. The officers watched Howard as she took her diabetes medication, did not leave her side while she was in her apartment, and returned her to Area One at 6 a.m. to wait for the grand jury. Howard stated she met with Assistant State’s Attorney Kelly prior to testifying, but did not tell him that her testimony was false because she was terrified and had not slept in over 24 hours.
• .Treyvon Louis testified that although he, too, turned himself in to police voluntarily, he was held for hours, and, as the majority notes, struck repeatedly by police, and not allowed to obtain insulin for his diabetes.
• Tameesha Bolden, who was only 14 years old at the time of the shooting, testified at trial that on August 17, 1998, the police kicked in the door to the apartment where she was staying, took her to police headquarters, then questioned her for two to three hours without either a parent, guardian or youth officer present. Bolden testified that Detective Rose told her that the police had already arrested defendant, and he gave her a statement to memorize, which she recited at the grand jury.
In rebuttal of the testimony of each of the six witnesses, the State presented the testimony of the police detectives, and prosecutors who “interviewed” the witnesses, each of whom denied any of the abuses testified to by the witnesses. The State presented no evidence, however, that any independent investigation of the witnesses’ claims was undertaken to show that the statements were, in fact, voluntarily made. See, e.g., People v. Parker, 234 Ill. App. 3d 273, 280, 600 N.E.2d 529 (1992) (evidence insufficient to sustain defendant’s conviction where no evidence existed corroborating three recanted witness statements). There is no evidence rebutting the witnesses’ claims of lengthy detentions.
Although the six witnesses were not placed under arrest per se, under the facts and circumstances of this case we can analogize their detention to the detention and custody of a suspect. This court recently reversed the conviction of a defendant after examining facts which showed that the defendant voluntarily agreed to accompany police detectives to the police station, was placed in an interview room, and was held for 73 hours prior to being charged. This court held the length of time in detention was unreasonably excessive:
“ ‘The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.’ ” People v. Willis, 344 Ill. App. 3d 868, 877 (2003), quoting Gerstein v. Pugh, 420 U.S. 103, 114, 43 L. Ed. 2d 54, 65, 95 S. Ct. 854, 863 (1975).
Gerstein requires a prompt determination of probable cause within 48 hours of a warrantless arrest. If the delay is longer than 48 hours, the burden shifts to the State to show that the delay was due to a “bona fide emergency or other extraordinary circumstance.” County of Riverside v. McLaughlin, 500 U.S. 44, 57, 114 L. Ed. 2d 49, 63, Ill S. Ct. 1661, 1670 (1991).
In this case, the six witnesses were not suspects. The detention of these mere witnesses for lengthy periods, some in excess of 24 hours, indicates the involuntary nature of their statements and constitutes unlawful detention in violation of the fourth amendment to.the United States Constitution. See Arizona v. Evans, 514 U.S. 1, 10, 131 L. Ed. 2d 34, 44, 115 S. Ct. 1185, 1191 (1995).
Especially egregious is the complete lack of evidence in the record explaining how it came to pass that a 14-year-old girl was detained and questioned by police outside the presence of her parents or a youth officer to represent her interests, and that a 17-year-old boy was kept for questioning after his parents left the police station. Again, by way of analogy, I note the long line of authority regarding the taking of a juvenile’s confession as “ ‘a sensitive concern.’ ” In re G.O., 191 Ill. 2d 37, 54, 727 N.E.2d 1003, 1012 (2000), quoting People v. Prude, 66 Ill. 2d 470, 476, 363 N.E.2d 371, 373 (1977). In analyzing the voluntariness of a juvenile’s confession, courts must take great care to assure that these statements were neither suggested or coerced nor a product of fright or despair. People v. Kolakowski, 319 Ill. App. 3d 200, 213, 745 N.E.2d 62, 74 (2001). Courts look to the totality of the circumstances and consider factors including defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including any threats or promises. In re G.O., 191 Ill. 2d at 54, 727 N.E.2d at 1012. Additional factors to consider when assessing the confession of a juvenile include the time of day when questioning occurred and the presence or absence of a parent or other adult interested in the minor’s welfare. People v. Plummer, 306 Ill. App. 3d 574, 584, 714 N.E.2d 63, 70-71 (1999). No single factor is dispositive. In re G.O., 191 Ill. 2d at 54, 727 N.E.2d at 1012. Because a minor is “ ‘an easy victim of the law,’ ” his confession will be found involuntary if the facts reveal that it was “ ‘a confession wrung from a child by means which the law should not sanction.’ ” In re V.L.T., 292 Ill. App. 3d 728, 736, 686 N.E.2d 49, 54 (1997), quoting Haley v. Ohio, 332 U.S. 596, 599, 601, 92 L. Ed. 224, 228, 229, 68 S. Ct. 302, 303, 304 (1948).
Our supreme court has found that the “concerned adult” factor, whether the juvenile had an opportunity to speak with a parent or adult interested in his welfare before or during interrogation, is an important element in determining the voluntariness of defendant’s confession. In re G.O., 191 Ill. 2d at 55, 727 N.E.2d at 1012. While there is no per se rule that juveniles must be allowed to consult with their parents prior to questioning, courts have repeatedly held that police conduct which frustrates parents’ attempts to confer with their child is particularly relevant and a significant factor in the totality of the circumstances analysis. In re G.O., 191 Ill. 2d at 55, 727 N.E.2d at 1013; People v. McDaniel, 326 Ill. App. 3d 771, 762 N.E.2d 1086 (2001); People v. Golden, 323 Ill. App. 3d 892, 900, 753 N.E.2d 475, 482 (2001); Kolakowski, 319 Ill. App. 3d at 214, 745 N.E.2d at 75; In re J.J.C., 294 in. App. 3d 227, 235, 689 N.E.2d 1172, 1179 (1998); In re Lashun H., 284 Ill. App. 3d 545, 553, 672 N.E.2d 331, 336 (1996). “It suggests that, at worst, the police were trying to coerce a confession and at best that they were conducting the interrogation without due regard for the suspect’s age.” In re R.T., 313 Ill. App. 3d 422, 430, 729 N.E.2d 889, 895 (2000), citing In re V.L.T., 292 Ill. App. 3d at 737, 686 N.E.2d at 55; In re Lashun H., 284 Ill. App. 3d at 554-55, 672 N.E.2d at 337; People v. R.B., 232 Ill. App. 3d 583, 595, 597 N.E.2d 879, 887 (1992).
Recently, in People v. Griffin, 327 Ill. App. 3d 538, 763 N.E.2d 880 (2002), this court reversed and remanded the conviction of a 15-year-old juvenile defendant, after determining that no adult was present to act in the juvenile’s interest during his 18-hour detention at the police station as a suspect for a murder. The defendant was prevented from seeing his parents, and although a youth officer was present at the time of defendant’s interrogation, he participated in the investigation, actively gathering evidence against the defendant rather than representing the defendant’s interests. This court held that the coercive atmosphere surrounding the defendant’s confession dictated that his confession was involuntary. Griffin, 327 Ill. App. 3d at 547-49.
A similarly coercive atmosphere exists in the present case surrounding the inculpatory statements made by all six witnesses against defendant. As detailed above, these witnesses were detained for lengthy periods of time and underwent serious constitutional deprivations. As such, the trial court erred in admitting the prior inconsistent statements of these witnesses obtained as a result of the illegal detention.
Ill
Added to the lack of clarity surrounding the voluntary nature of the eye-witness testimony is the admission of the hearsay testimony of Officers Ferenzi and Jones as to conversations they each had with the deceased regarding the identification of defendant. According to the majority, Officer Ferenzi was allowed to testify that although he did not see who shot Officer Ceriale, he was able to identify defendant because Officer Ceriale described defendant as the shooter to Officer Ferenzi prior to his death. Officer Ferenzi testified that after being shot in the leg, Officer Ceriale stated “he shot me,” and that Officer Ferenzi knew that the “he” Officer Ceriale referred to was the “male in orange.” It is not known by the facts as detailed by the majority whether this evidence was admitted under the dying declaration exception to the rule against hearsay or whether there was any defense objection to the admission of this testimony.
We do know from the facts, however, that the above testimony could not have been properly admitted under the dying declaration exception because Officer Ceriale’s death was not imminent. Dying declarations are admissible into evidence only if it appears that such declarations are “made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance,” when the victim “has despaired of life and looks to death as inevitable and at hand.” People v. Odum, 27 Ill. 2d 237, 242-43, 188 N.E.2d 720 (1963); See also People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1008, 708 N.E.2d 1196 (1999) (dying declaration admissible as an exception to the hearsay rule “ ‘in the assumption that belief of impending death excludes the possibility of fabrication by the declarant,’ ” quoting M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 804.6, at 778 (6th ed. 1994)).
The requirements for admitting a dying declaration into evidence are: (1) the declaration pertains to the cause or circumstance of the homicide; (2) the declarant must believe that death is imminent; and (3) the declarant must possess mental faculties sufficient to give an accurate statement about the circumstances of the homicide. People v. Lawson, 232 Ill. App. 3d 284, 292, 596 N.E.2d 1235 (1992). These factors must be proven beyond a reasonable doubt, based on the totality of the facts and circumstances surrounding the declaration. It is the state of mind of the deceased and not that of any other person which guarantees the truthfulness and determines admissibility. Odum, 27 Ill. 2d at 243-44.
Here, the record shows that Officer Ceriale was shot on August 15, 1998, and did not die until six days later, on August 21, 1998. In fact, Detective James Jones testified that he spoke with Officer Ceriale “after the shooting,” later than the time Officer Ceriale allegedly identified defendant to Officer Ferenzi. Detective Jones stated that Officer Ceriale told him details of their surveillance operation, that he and Officer Ferenzi were “watching the dope selling” in front of 4101, and gave Jones a detailed description of the shooter and his clothing. Officer Ceriale complained that he was “shot in the leg,” but the record does not reveal the officer’s state of mind as fatally injured. It was not until later that the facts show Officer Ceriale stating that he was “not going to make it.” The elements of these statements as dying declarations were not established beyond a reasonable doubt. If no objection was made at trial, these statements are nonetheless reviewable as plain error and highly prejudicial to defendant.
IV
I also find that the evidence of gang intimidation was improper where no evidence of intimidation was tied to defendant at trial.
Prosecutors are forbidden from arguing or presenting testimony that a witness is afraid of a defendant, afraid to testify, or otherwise afraid due to involvement in a case unless the prosecution first directly connects such fears to defendant’s conduct. People v. Mullen, 141 Ill. 2d 394, 405-07, 566 N.E.2d 222, 228-29 (1990). Evidence of a defendant’s intimidation of a witness is admissible only if there is actual evidence that the defendant made such threats. People v. Terry, 312 Ill. App. 3d 984, 996-97, 728 N.E.2d 669, 679-80 (2000).
Defendant argued that there was no evidence to suggest that the incident that occurred on August 19, 1998, where a group of people confronted Lacole Dismuke at her apartment, was connected to defendant. Defendant cites the grand jury and trial testimony of Lacole wherein she stated that the confrontation was solely between her and the sisters of codefendant Brandt and other neighbors, mostly numbering in women and young children.
A witness may be impeached by showing interest, bias or an inclination to testify falsely. People v. Williams, 262 Ill. App. 3d 734, 743 (1994). Testimony that a prosecution witness fears for his safety and the safety of his family as a result of cooperation with the prosecution is admissible to show reasons for inconsistent statements. People v. Rainge, 211 Ill. App. 3d 432 (1991).
At trial, Lacole testified that she was placed in witness protection and that time and money was spent moving her to different locations to protect her. However, there was no evidence of the intimidation of Lacole by defendant or any alleged Gangster Disciples. This particular evidence was neither relevant nor credible to prove that Lacole was intimidated by defendant to change her testimony, and the State’s use of this evidence sounds in unlawful “guilt by association.” There is no basis for a reasonable inference that Lacole was the victim of gang intimidation based on the evidence at trial. As such, the evidence was improperly admitted.
V
The majority concludes that no reversible error is found in the closing and rebuttal arguments of the prosecutor. I disagree.
Defendant objected to the prosecutor’s following remark:
“Did your memory get a little better when Ms. Brown, Jonathan’s attorney, the Gangster Disciples’ attorney was asking you ***?” (Emphasis added.)
Despite the fact that defense counsel’s objection to this comment was sustained by the trial court, this error is as easily cured as the unringing of a bell. This comment by the prosecutor, implying that the public defender represented the entire Gangster Disciples’ gang, was highly improper and in and of itself constitutes reversible error.
In People v. Blue, 189 Ill. 2d 99 (2000), our supreme court recognized that a pervasive pattern of error, engendered in the main by prosecutorial misconduct, had divested defendant of his right to a fair, orderly, and impartial trial, a substantial right that inures to a criminal defendant whether guilty or innocent. The Blue court reversed that defendant’s conviction, finding that the trial was permeated by the presentation of emotionally charged evidence and that the prosecutors had encouraged the jury to “return a verdict grounded in emotion, and not a rational deliberation of the facts.” Blue, 189 Ill. 2d at 139. Subsequently, and applying the principles established in Blue, our supreme court reversed the judgment against defendants in the consolidated cases of People v. Johnson, 208 Ill. 2d 53 (2003) (hereafter, the consolidated cases), citing improper conduct on the part of the State’s Attorneys prosecuting those cases.
The majority glazes over the conclusions of our supreme court in these cases, finding that the “prosecutorial misconduct here was not so repeated or egregious,” as in those cases. 347 Ill. App. 3d at 224. Again, I demur. The prosecution here demonstrated a similar level of abhorrent conduct.
This court may invoke the plain error rule to review alleged errors not properly preserved when: (1) the evidence in a criminal case is closely balanced; or (2) the error is so fundamental and of such magnitude that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Lindsey, 201 Ill. 2d 45, 54 (2002). Absent reversible error, there can be no plain error. People v. Williams, 193 Ill. 2d 306, 349 (2000). A “pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error doctrine.” Johnson, 208 Ill. 2d at 64.
The prosecution here concocted a “Great Drug Sale-Murder-Conspiracy Case” out of thin air, culminating in the casting of aspersions upon defense counsel as the representative of an organized street gang. In doing so, it is clear that the prosecutor intended that the jury believe that the shooting of an unseen officer, hidden in the shrubbery at 3 a.m., by a 16-year-old boy, was a well-orchestrated gangland shooting. The comment by the prosecutors here is even more egregious than the term “paid advocate,” a comment deemed improper by this court in People v. Hawkins, 284 Ill. App. 3d 1011 (1996). As I have stated, there is nothing in this record that the shooting of Officer Ceriale was gang motivated. This comment by the prosecutor was made in furtherance of the improper theory of the case, designed to appeal to the jurors’ passions and emotions, and therefore highly prejudicial to defendant. It is plain error and as such constitutes reversible error.
Likewise, I take exception to the majority’s conclusion of propriety regarding the prosecutor’s comment about defendant’s stock “skyrocketing,” and his supposedly earning a “badge of honor” because he shot a police officer. There is not a modicum of evidence in the record revealing that defendant had any idea that a police officer was hidden in the shrubbery at 3 a.m. — the evidence clearly discloses that Officers Ceriale and Ferenzi were dressed in plain clothes. This argument, supposedly based on the testimony of Sergeant Moore, which I have already explained as improper, was highly prejudicial to defendant.
As in the consolidated cases, the cumulative effect of the prosecutorial errors here created a pervasive pattern of unfair prejudice to defendant’s case. See Johnson, 208 Ill. 2d at 62.
VI
Finally, defendant’s sentence as an adult on his conviction for possession of a controlled substance with intent to deliver is improper. Defendant was merely 16 years old at the time of the offense. Section 5 — 130(l)(a), which permits a juvenile to be prosecuted and sentenced as an adult for “that offense and any other charges arising out of the same incident,” does not apply here. (Emphasis added.) 705 ILCS 405/ 5 — 130(l)(a) (West 2000). The majority does not communicate whether this conviction for possession was defendant’s first offense, or any other pertinent details regarding defendant’s criminal background, or lack thereof. Detailed facts of defendant’s purported possession of drugs have not been set forth to support the majority’s assumption of defendant as a high-ranking, 16-year-old juvenile walking so-called “guard duty,” at 3 a.m., and to support the “expert” testimony of Sergeant Moore. Defendant was sentenced excessively as though he were a “Drug Lord Dealer-Ringleader,” when the facts more accurately show that defendant had in his possession a small amount of a controlled substance, 7.6 grams, that he intended to sell for someone else. I note that under the Illinois Controlled Substances Act, penalties for possession of a controlled substance begin at a minimum of four years for the possession of 15 grams. 720 ILCS 570/402 et seq. (West 1998). A resentencing hearing on defendant’s drug conviction is indicated.
Accordingly, I dissent.
Submitted by the State as supplemental authority following oral argument.