Find Legal Information

No. 1-99-2365

JUSTICE COUSINS delivered the opinion of the court:

Defendant-appellant, Jose Barajas, was convicted of first degree murderand two counts of aggravated discharge of a firearm. He was sentenced to 34years' imprisonment for first degree murder and 4 years' imprisonment for eachcount of aggravated discharge of a firearm, to be served consecutively. Defendant presents the following issues upon appeal: (1) whether the trialcourt erred in allowing a Chicago police officer to testify as a gang expertregarding gang hierarchy, territory, rivalries, gang rules, and drug sales;and (2) whether his sentences for first degree murder and aggravated dischargeof a firearm should be modified to run concurrently.

We affirm in part and vacate in part.

BACKGROUND

At defendant's jury trial, Anna Torres testified for the State that onSeptember 27, 1995, at about 1 p.m., she observed a four-door vehicletraveling on Washtenaw with a grey vehicle following closely behind it. Inthe second vehicle, Torres noticed one person in the driver's seat and twopassengers in the backseat. As the cars approached the intersection ofWashtenaw and Cortland, Torres heard four shots coming from the second car. She heard shots being fired by the passenger sitting behind the driver in thesecond car. Torres testified that she recognized the shooter and, in court,she identified the defendant as the shooter. During cross-examination, Torresstated that she recognized the driver of the second car as a man who was knownas Bull.

Darrell Johnson testified for the State that in 1995, he was a member ofthe Maniac Latin Disciples street gang. He testified that he did not rememberwhether the Maniac Latin Disciples were at odds with any other gangs inSeptember 1995. He also testified that he knew the victim, Eric Givens,because they grew up together and he was a good friend of his in 1995. Johnson testified that Givens was a member of the Maniac Latin Disciples andthat Givens' nickname was Bull. He further testified that Astol Arroyo wentby the name of Lurch.

During direct examination, Johnson was shown a picture of a greyCadillac. The State asked, "[D]o you remember back in September of 1995 beingin the car when some shots were fired?" Johnson responded, "No." The Statefurther inquired, "You don't remember at all? *** Total memory lapse of themonth of September of '95?" Johnson responded, "Yes." Then the State askedwhether Johnson was with Givens when he was shot. Johnson stated that he didnot remember being in the vehicle, who was in the vehicle, who shot Givens,who took Givens to the hospital, or any other details of the day Givens wasshot. Johnson could not recall looking through photographs or indicating thatone them was a photograph of the shooter. He could not recall testifyingbefore the grand jury. He was shown a statement that he gave at Area 5 policestation on June 7, 1997, in which he implicated defendant as the shooter. Heacknowledged that his signature appeared on each page. He could not recallwhether the assistant State's Attorney read the statement to him or whether hemade corrections or signed each page. He could not recall providing theinformation contained in the statement. He testified that he did not knowwhether "folks" have a rule that gangs under that umbrella do not testifyagainst other "folks." He testified that he did not know what a "violation"was.

Astol Arroyo testified for the State that he was a member of the ManiacLatin Disciples gang in September 1995. Arroyo testified that on September27, 1995, at about 12:50 p.m, he was riding around in a grey Cadillac withDarrell Johnson and Eric Givens in the area of Washtenaw and Cortland. Arroyowas driving and Darrell Johnson was in the passenger seat next to him. EricGivens was in the backseat, directly behind Arroyo. Arroyo testified that ashe was driving, he noticed a grey car on the east side of Washtenaw onCortland. He stated that he stopped at the stop sign on Cortland and as hecrossed Cortland, he slid his head out of the car and saw a "machine gun,little uzi, whatever it was, it was not a handgun" coming out of the backseat,on the driver's side of the other car. He stated that after he heard thefirst shot, he "hit the gas pedal and took off." Arroyo testified that heonly noticed a driver and the shooter occupying the other vehicle, but deniedseeing their faces. He did not hear anyone from the other car yell anything. He heard between seven and nine shots fired. Arroyo testified that Givenstold him to drive to the hospital because he had been shot. Arroyo alsotestified that he spoke with a Chicago police officer at the hospital.

Arroyo stated that on October 4, 1995, a week after the shooting, hespoke with Detective Wojcik about the shooting. Arroyo denied telling Wojcikthat he recognized the shooter as a member of the Latin Lovers gang or that heasked the detective to keep his identity confidential for as long as possible.

The State inquired about the written statement signed by Arroyo on June7, 1997, regarding the events of the September 27, 1995, shooting. Arroyotestified that when he arrived at Area 5 violent crimes headquarters on June7, 1997, Assistant State's Attorney Lorraine Scaduto had a statement alreadywritten up for him to sign regarding the events on September 27, 1995. Hestated that he read it to make sure it did not incriminate him and then hesigned it. He denied ever speaking to Scaduto prior to her submitting it tohim for his signature. Arroyo also testified that in July 1997 he was presentbefore a grand jury.

Arroyo further testified that in September 1995 the Latin Lovers andManiac Latin Disciples were at war "at times." He also stated that he wasaware that about 10 hours before the shooting of Eric Givens, a Latin Lovernamed Floco had been murdered. He testified that he was not aware of any gangrule that said that "folks don't testify against folks." He testified that "aviolation is when you get beat up" by other members of the gang.

On cross-examination, Arroyo testified that he went to the policestation with officers on the day of the shooting and viewed approximately twophoto books, but he did not identify anyone as the shooter because he did nothave a clear view of the shooter. The day before Givens' burial, Arroyo wasbrought to the police station for traffic violations. He stated thatDetective Wojcik used threats and promises to force him to identifydefendant's photo as the shooter.

Assistant State's Attorney Lorraine Scaduto testified for the State thaton June 7, 1997, she was called to assist detectives at Area 5 regarding theinvestigation of a homicide that occurred on September 27, 1995. Scadutotestified that Arroyo gave her a statement dated June 7, 1997, regarding theshooting and that she explained to him that his statement would bememorialized and he would have the opportunity to make any additions, changesor corrections to that statement once it was written. Scaduto also statedthat Darrell Johnson gave her a statement dated June 7, 1997, regarding themurder of Givens. Scaduto published Johnson's and Arroyo's statements to thejury. Johnson's statement provided, in pertinent part:

"Darrell Johnson states that on September 27, 1995, at about 12:50p.m. he was in Eric Givens' car with Eric and Astol Arroyo. DarrellJohnson states that as they were approaching Washtenaw he saw a grey cardriving west on Cortland. *** Darrell Johnson states that he heardsomeone from the grey car yell out something and that Bull told Lurch tostop the car. *** Darrell Johnson states that Bull thought maybe the guyin the grey car was a customer, but that when Darrell looked at the guyhe recognized him to be a member of the Latin Lovers street gang, whichDarrell states were Maniac Latin Disciple's rivals at that time. Darrell Johnson states that in September 1995 there was a war betweenthe two gangs because a 'D' killed a Lover. Darrell Johnson states that'D' is short for Maniac Latin Disciples. Darrell Johnson stated that hesaw the Latin Lover point a large black gun at Bull's car from thedriver's side of the car he was in Darrell Johnson state that he toldLurch to drive away when he saw the gun. Darrell Johnson states that hehad a clear view of the Latin Lover's face at this time and saw himshoot the gun one time. *** Darrell Johnson states that Bull said he hadbeen hit so Lurch and Darrell took him to the hospital. Darrell Johnsonstates that he does not know the Latin Lover who shot Bull by name buthe knows his face because he has seen him many times in theneighborhood."

Arroyo's statement provided, in pertinent part:

"Astol Arroyo states that on September 27, 1995 he was with Eric Givens and Darrell Johnson in Eric Givens' car. *** Astol Arroyo statesas he turned right on Wabansia he saw a grey car driving west onCortland. Astol Arroyo states that as he made the turn Bull said,'Stop- there's a customer.' *** Astol Arroyo states that he saw a guy inthe car looking out, leaning on the door. Astol Arroyo states that theguy said 'Disciple killers mother fuckers.' *** Astol Arroyo states thathe recognized the guy as a Latin Lover from California and Milwaukee.*** Astol Arroyo states that in September 1995, the Lovers and theManiac Latin Disciples were rivals and at war, so when he saw the Loverat Cortland and Wabansia acting bold and disrespectful, he thought hemight have a gun. *** Astol Arroyo states that Dee told him 'Go- he'sgot a gun.' *** Astol Arroyo states that Bull yelled out that he got hitso he and Dee took Bull to the hospital."

The State called Assistant State's Attorney Kevin Golden. Goldeninterviewed Arroyo on July 8, 1997. Golden stated that Arroyo agreed to gobefore the grand jury. Golden also interviewed Darrell Johnson on September9, 1997. Golden stated that, during this interview, Johnson agreed to testifybefore the grand jury. Golden then published the transcript of Johnson'sgrand jury testimony. Johnson's grand jury testimony includes the followingpertinent parts:

"Q. And what did that [other] car do?

A. They said something out of the car.

* * *

Q. Do you know what those people - - do you know what they said?

A. No.

Q. What happened then?

A. Bull opened the door, and I looked back and I saw a guy that Iknow which was a Latin Lover.

* * *

Q. And the guy you knew, where was he at in the other vehicle?

A. He was driving.

Q. Do you recall what his name is?

A. Negro.

* * *

Q. Now, in 1995 were the Latin Lovers and the Maniac Latin Disciples,were they getting along at that time?

A. No.

Q. Were they at war?

A. Yes.

* * *

Q. When you saw Negro in the driver's seat of that car, what happenednext?

A. I told him to pull off.

Q. You told who to?

A. Lurch to pull off.

Q. What happened then?

A. He came out with a gun and started shooting.

Q. Who came out with a gun?

A. Negro.

* * *

Q. Now, the individual you identified as Negro, had you seen himprior to the shooting?

A. Yes.

Q. Where did you see him at?

A. Milwaukee and California.

Q. Is that where he was a member of the Latin Lovers, from thatneighborhood?

A. Yes.

Q. And had you seen him numerous times prior to that?

A. Yes."

Assistant State's Attorney Golden testified to pertinent parts ofArroyo's grand jury testimony:

"MR. GOLDEN [Assistant State's Attorney]: I am showing you what hasbeen previously marked as People's exhibit B for identification, do yourecognize that person?

MR. ARROYO [witness]: Yes, I do.

Q. Who is that person?

A. The guy that was hanging out the window.

Q. And you had seen him prior to this?

A. Yes.

Q. Do you know what neighborhood he is from?

A. From Milwaukee and California.

Q. He was a Latin Lover from that area?

A. Yes."

The State called Officer John Souchet to testify. Officer Souchet'stestimony established that on August 18, 1997, at approximately 11 p.m., hemade a traffic stop at 2317 North Milwaukee. One of the assisting officers,Officer Rodriguez, observed that one of the passengers was the defendant andstated that she believed he was wanted for a homicide case. Souchet statedthat the defendant was arrested. It was stipulated that the warrant for hisarrest was issued on July 12, 1997.

Officer Gina Rodriguez testified that on August 18, 1997, she observedthe occupants of a vehicle stopped by Officer Souchet. She recognized thedefendant and told Officer Souchet that defendant was wanted for a homicide.

Detective Thomas Shebish testified that on September 27, 1995, he wentto St. Elizabeth Hospital to investigate a report of a man shot. He met AstolArroyo in the waiting room of the hospital. While at the hospital, DetectiveShebish viewed the entire vehicle in which Givens was shot. Shebish indicatedthat it was a grey Cadillac. He observed a bullet hole in the trunk, a holein the back seat, and blood on the seat and floor. On cross-examination,Shebish testified that Arroyo provided him with a description of the offendersand the vehicle driven by the offenders.

Defense counsel made a motion in limine outside of the presence of thejury to limit Officer Cesar Echeverria's anticipated testimony regardingstatements made to him by the defendant on September 26, 1995, as Echeverriasearched for the weapon used in the murder of the defendant's friend, Floco. While the judge did not decide this issue, the State submitted that it would"lead the detective in that area so he doesn't make that statement. *** Onlything he can testify the defendant voiced his anger at Disciples as was statedin the police report." The judge asked defense counsel if she had "anyproblem with that." Defense counsel stated that she did not.

Also during that hearing, the trial judge inquired as to Echeverria'sbasis for his anticipated testimony that the defendant was a member of a gang. The judge stated, "All I want to get to the point about what is the basis forhim to say that Mr. Barajas is a member of the gang." Officer Echeverriaresponded, "He is a self admitted. He's told me many times." The court alsoasked, "How many times in that 6 year period have you been in contact with Mr.Barajas?" Echeverria stated, "Numerous times. *** [A]s doing the police work,investigating just gangs." The following was also stated during the hearing:

"THE COURT: So, as far as I am concerned this Officer is qualified toidentify Mr. Barajas as a self admitted member of this gang. *** Anyfurther act of Mr. Barajas walking along with him, things like that,Court has no problem with him, if you can qualify him [as an] expert."

MR. GALIVAN [Assistant State's Attorney]: As well as higherarchy[sic], gang rules.

THE COURT: Please let's not turn this into a seminar on gangs. Let'sget to the issues that are necessary.

MS. COLLINS [defense attorney]: Judge, I would agree with that. Iwould like to know how far, exactly how far they are going to go withthis.

THE COURT: Well, as far as the Court is concerned the Officer hasexperience. If he can be qualified as [an] expert on gangs, he cantestify about what his knowledge about [what a] gang violation is, whatthe basis for [a] gang violation would be.

MR. GALIVAN: Higherarchy [sic], territory, rivalries.

THE COURT: Territory in question. The rival gangs in question, Iwill allow that."

Officer Cesar Echeverria testified that he had been a member of theChicago police department gang tactical unit for approximately eight years. He had been qualified to testify in court as a gang expert on two previousoccasions. The State then tendered the witness for cross-examination on hisqualifications as a gang expert. After cross-examination, defense counsel, ina sidebar, objected to Echeverria being characterized as a gang expert,reasoning that "his qualifications are [not] close to being expert witnessqualifications."

During direct examination, Officer Echeverria testified that when thegang tactical unit gathers gang intelligence, they conduct "surveillance,numerous interviews with self admitted gang members from different gangs. Wespeak to citizens. Speak to other police officers. Any form of intelligencewe can gather on gangs and their members." After the State inquired as toEcheverria's work history in the 14th District and his familiarity with thegangs in that area, the judge found that Officer Echeverria was an "expert inthe area of gangs regarding the 14th district, the particular areas ofCalifornia and Milwaukee and Talman and Wabansia." Echeverria's testimonyincluded the following:

"People and folks are the 2 factions that are broken into the gangsin the city.

* * *

Gang higherarchy [sic] is mainly how the system is set up as far asleader, one leader which the gang calls a chief. This is the person whowill get out orders, mainly in charge of receiving any money fornarcotics. He and through him he assigns different leaders to thecorners. Their names are governors.

Chief can you know assign, so and so you take this corner. You willbe governor of that corner. And put them out there to sell narcotics. Whatever money is made, some of it is given to that corner to thatleader and the rest of the money is given to the chief."

The State then asked, "And all gang members are not necessarily involved inthe sale of narcotics, is that correct?" Officer Echeverria responded,"Correct." Echeverria then continued:

"Lowest wrung of the ladder would just be a foot soldier, someonehangs out there, who is assigned to do security for one hour, carry thegun.

And even something lower than that would be the shorties, which arekids that are too young to join the gang."

Following are additional questions and answers:

"Q. Would you tell the ladies and gentlemen of the jury what some ofthe rules of the gangs are?

A. Some of the rules of the gang as far as taking narcotics, onlynarcotics they are able to take are cannabis, marijuana.

If they are caught taking any sort of cocaine or anything else, theywill be dealt with.

Q. Now, are there rules regarding respect toward other gang members?

A. Yes. For the most part folks will respect people and people willrespect folks. Folks respect people or people respect folks.

Q. Officer Echeverria, do the gangs have rules regarding cooperationwith the police in the investigation of criminal activity?

A. Yes, they do. *** The rule is that you don't cooperate with thepolice. *** That is called tricking or you are called a trick. And youdon't want to be called a trick because you will be disciplined. ***They have a violation which is the way a gang holds violation is theyset up whoever the governor is, even the chief can set up [a] certainamount of time, 2 minutes, 5 minutes, 7 minutes. They will form [a]line with the members of your own gang, whoever the trick is, put him inthere, beat him for that certain amount of time by his own gang members. And that is accepted by the gang members once they join. If they getviolation, they have to go through with it.

Q. And could a gang member be violated for tricking?

A. Yes.

Q. Is testifying in court against another gang member consideredtricking to the gang?

A. Very much so.

Q. Do some of your intelligence gathering activities involveinterviews of people who have already been incarcerated, for example, inthe Cook County Jail?

A. Yes."

Echeverria also testified that gang alliances are maintained behindprison walls and "once you are in jail you have to belong to either folks orpeople just to survive. Because in jail it is separated just between folks orpeople. *** It is totally different than what happens on the street."

He further testified that he was familiar with the gangs known as theManiac Latin Disciples and the Latin Lovers within the 14th District. Thehouse located at 2319 North California Avenue was the home of Latin Loversgang members and was frequented by gang members from that area. Based on hisnumerous conversations with the defendant, he knew that defendant was a memberof the Latin Lovers and his street name was Negro.

On the evening of September 26, 1995, at approximately 10:30 p.m.,Echeverria was called to 2319 North California in response to a shooting. Heknew that the victim, who was known as Floco, was a member of the Latin Loversgang. The witnesses present, including the defendant, gave him descriptionsof the alleged shooters. The two alleged shooters were members of the ManiacLatin Disciples. While he searched for the gun used in the shooting, thedefendant walked with him the entire time. The State asked, "Officer, did thedefendant express to you or voice his anger at the Maniac Latin Discipleswhile you [were] out there looking for the gun?" Echeverria responded, "Yes." During the cross-examination of Echeverria, defense counsel made a motion formistrial as a result of Echeverria revealing the statement made him whilesearching for the weapon used to shoot Floco. The motion for mistrial wasdenied.

Detective Wojcik testified that on October 4, 1995, he spoke with AstolArroyo regarding the events of September 27, 1995, at Area 5. He stated thatArroyo told him the sequence of events leading up to the shooting, that thevehicle carrying the shooter was a gray Toyota, that he recognized an occupantof the car as a Latin Lover, and he heard that person yell, "Disciple Killermother fucker." Wojcik testified that Arroyo also gave the followingdescription of the suspect: "male Mexican, approximately 21 to 25 years ofage, about 5 foot 5 inches tall, dark complexion, black hair, long black hair,with a long tail in the back." Arroyo was shown a photo book of over 120Latin Lovers and he identified one as the person he saw and heard yell theearlier mentioned statement. Wojcik further testified that Arroyo told himthat his cooperation with police was going against gang rules but, afterseeing Givens' family at the funeral, he thought that they would suffer lessif they knew that the person who killed Givens was caught.

Detective Wojcik also testified that on June 7, 1997, he transferredArroyo from the Cook County jail to Area 5. While at Area 5, Arroyo wasallowed to call his family and to visit with his infant daughter andgirlfriend in an interview room for about 10 minutes with the door open. Wojcik stated that the during the entire visit, he or his partners could seeinto the interview room. On July 8, 1997, Arroyo was brought to Area 5 andspoke with Wojcik. Wojcik denied that he promised Arroyo another visit withhis infant daughter on July 8, 1997.

Detective Hector Vergara testified that he interviewed the defendant onAugust 18, 1997. He testified that the defendant told him that, on the day ofthe shooting, he was on the corner of Milwaukee and California. Vergaratestified that the defendant told him that he was no longer a member of theLatin Lovers gang and went to Mexico after the burial of his friend Flocobecause his father was sick and possibly dying. Vergara stated that defendantalso told him that on the afternoon of September 27, 1995, he was at hisgirlfriend's house until approximately 10 p.m.

The State called Dr. Barry Lifshultz, a staff forensic pathologist ofthe Cook County medical examiner's Office, to testify. Dr. Lifshultztestified that he conducted the autopsy of Eric Givens and observed a gunshotwound entrance on the left side of Givens' back. The bullet traveled throughGivens' lung and heart and rested in the right chest wall.

The State proceeded by way of stipulation of testimony by a firearmsexaminer and expert. It was the examiner's opinion that the bullet retrievedfrom Givens' body came from a .38-caliber handgun.

Detective Ronald Koncz testified for the defense that he interviewedAnna Torres and she gave him a description of the shooter. The defense thenrested its case in chief.

The jury found defendant guilty of first degree murder and two counts ofaggravated discharge of a firearm. The defense filed a motion for new trial,which was denied. Defendant now appeals.

ANALYSIS

I

Defendant contends that he was denied a fair trial by the admission oftestimony regarding gang hierarchy, drug sales, gang rules, and violations. Defendant further contends that such testimony by Officer Echeverria wasinflammatory, irrelevant, and invaded the jury's province by bolstering thecredibility of prior inconsistent statements made by Johnson and Arroyo.

The admission of expert testimony is within the sound discretion of thetrial court and the court's decision will not be reversed on appeal absent anabuse of discretion. People v. Eyler, 133 Ill. 2d 173, 212, 549 N.E.2d 268(1989). A defendant may not claim trial error unless he objects to itsadmission both before the trial court and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). A motion for anew trial must specify the grounds therefor. 725 ILCS 5/116-1 (West 1994). However, a defendant may preserve an issue for appeal by either raising theissue in a motion in limine or objecting at trial and also raising the issuein a posttrial motion. People v. Hudson, 157 Ill. 2d 401, 434-35, 626 N.E.2d161 (1993).

The State contends that the defendant's claim that the testimony ofOfficer Echeverria denied him a fair trial is waived because, althoughdefendant objected to Officer Echeverria testifying as an expert, he made noclear objection to Echeverria's anticipated testimony at trial and he failedto raise the argument alleging the irrelevance or inflammatory nature of thetestimony in his motion for a new trial. Relative to defendant's posttrialmotion, the defendant, in that motion stated, in pertinent part:

"6. The Court erred in allowing Chicago Police Officer CeasarEchivierria [sic] [to] testify as an expert witness.

7. The Court erred in allowing Officer Echivierra [sic] to testify asto the ultimate issue that the defendant was a member of the LatinLovers street gang."

In the instant case, the trial court was apprized that the State intended toadduce testimony from Officer Echeverria regarding gang territory, hierarchy,rules, and violations and the court indicated that the officer could testifyabout these matters if he was qualified as a gang expert. After OfficerEcheverria testified regarding his qualifications, the defendant objected. The court found Echeverria to be a gang expert in the 14th District. Thedefendant's objection to Echeverria's testimony while the court wasconsidering his qualification to testify in specified areas as a gang expert,together with the posttrial motion stating that the court erred in allowingEcheverria's testimony as an expert witness, adequately preserved this issuefor review.

Generally, a police officer's testimony regarding gang activity is properwhen the officer's testimony qualifies as expert opinion, the testimony isrelevant, and the prejudicial effect of the opinion does not outweigh itsprobative value. See People v. Jackson, 145 Ill. App. 3d 626, 633-35, 495N.E.2d 1207 (1986). In Illinois, an individual will be permitted to testifyas an expert if the witness' experience and qualifications afford the witnessknowledge that is not common to lay persons and where such testimony will aidthe trier of fact in reaching its conclusion. People v. Enis, 139 Ill. 2d264, 288, 564 N.E.2d 1155 (1990).

In the instant case, Echeverria's testimony was based on over eightyears of interviewing citizens, gang members, and police officers. Histestimony provided information regarding the Maniac Latin Disciples and theLatin Lovers in the 14th District. His testimony also provided relevantinformation regarding gang hierarchy, rules, and violations. The trial courtdid not abuse its discretion in allowing Echeverria to testify as an expert.

The defendant's reliance on People v. Mason, 274 Ill. App. 3d 715, 653N.E.2d 1371 (1995), to support his contention that Officer Echeverria'stestimony was irrelevant, inflammatory, prejudicial, and denied him a fairtrial is misplaced. A salient difference between Mason and the instant caseis that, in Mason, the defendant and the victim were members of the same gang,while the defendant and the victim in the instant case were members of rivalgangs that were at war. In Mason, the testimony of a police officer included: the names of the two umbrella organizations of street gangs in Chicago; thenames of active gangs in Illinois; how members signify their affiliationthrough clothing, hand signs, verbal manifestations, graffiti and tattoos; howone shows disrespect to a rival gang; the names of Hoover, King, and other topgang leaders; and a statement that the Gangster Disciples gang is "trying tolegitimize themselves by becoming a Political Action Committee which they call'growth and development.'" Mason, 274 Ill. App. 3d at 720-21. Defendant alsoasked the trial court, in its motion in limine, to redact portions of hisconfession which included a report on a meeting in Gage Park between thedefendant and other named persons where the defendant discussed "mak[ing] amore powerful mob." Mason, 274 Ill. App. 3d at 722. The Mason court, inholding that the State was improperly permitted to put into evidence testimonythat was both irrelevant and inflammatory, reasoned that "[w]hile theorganizational structure of the [gang] was relevant to the State's case inorder to demonstrate defendant's possible motive for shooting [the victim],facts about gang rivalries, presentment, graffiti, tattoos, and drug salesclearly do not go to defendant's motive." Mason, 274 Ill. App. 3d at 722. Relative to the motion in limine to redact portions of the defendant'sconfession, the Mason court also held that the trial court erred in denyingthat motion because the evidence was irrelevant and prejudicial. Mason, 274Ill. App. 3d at 722.

In the instant case, the testimony of Officer Echeverria is similar insome areas to the testimony of the witness in Mason. However, the motives inthe cases are dissimilar because, here, unlike in Mason, the victim and thedefendant are not members of the same gang. Also, in the instant case, thetestimony of Officer Echeverria and other witnesses establishes that at thetime of the shooting, the victim and the defendant's gangs were at "war." Additionally, in Mason, the testimony regarding specifically named gangleaders and the gang's attempt to "legitimize" itself is an example ofirrelevant and inflammatory testimony that is not present in the instant case. In our view, testimony by Echeverria regarding drug sales and use in theinstant case exceeds the areas that the trial court had specified asauthorized for Echeverria's expert testimony. Echeverria's references todrugs were erroneous, albeit nonresponsive to the State's questions. Afollow-up question by the State, "And all gang members are not necessarilyinvolved in the sale of narcotics, is that correct?," together withEcheverria's response, was probably asked to offset Echeverria's nonresponsiveanswer. We do not agree with the State's contention on appeal that thewitness' reference to narcotics was proper testimony because it explainedJohnson and Arroyo's statements that, immediately prior to the shooting, theythought that the defendant was a "customer." Here, however, in the context ofother evidence, any error was harmless.

Defendant also contends that the testimony of Officer Echeverria wasimproperly used by the State to bolster the prior statements made by Statewitnesses. The State responds that Echeverria's testimony concerning gangrules and alliances in prison was properly admitted to explain why DarrellJohnson and Astol Arroyo identified defendant as the shooter prior to trialbut did not do so at trial.

Defendant relies on People v. Simpkins, 297 Ill. App. 3d 668, 697 N.E.2d302 (1998), to support his contention that Echeverria's testimony impinged onthe province of the jury to determine witness credibility. Simpkins, however,is distinguishable from the instant case. In Simpkins, the defendant arguedthat the trial court erred by allowing a child protective servicesinvestigator to testify about the frequency with which child victims of sexualabuse recant and the reasons for such recantation. The court reasoned thatthe witness was being asked to give his opinion on the believability of thechild witness. Simpkins, 297 Ill. App. 3d at 683. In the instant case,Echeverria provided testimony from which the trier of fact could makeinferences. However, he did not opine that the witnesses, Johnson and Arroyo,were not credible.

Defendant also relies on People v. Howard, 305 Ill. App. 3d 300, 712N.E.2d 380 (1999) (a psychologist testified about battered woman syndrome). In Howard, the court held that the psychologist's testimony that there was noevidence that the witness tried to deceive her during her evaluation impingedupon the province of the jury to determine credibility and assess the facts ofthe case. Howard, 305 Ill. App. 3d at 308. Again, in the instant case, thereis no testimony by Echeverria that impinged on the province of the jury bystating his opinion on the credibility of any of the State's witnesses.

The State cites People v. Williams, 262 Ill. App. 3d 734, 635 N.E.2d 781(1994), and People v. Rainge, 211 Ill. App. 3d 432, 570 N.E.2d 431 (1991). InWilliams, unlike the instant case, the witness himself testified that he wasforced to move since his involvement in the case, that his younger brother'slife had been threatened, that he had been offered money for testimonyfavorable to the defendant, and that he was afraid even as he testified. Williams, 262 Ill. App. 3d at 743. In Rainge, as in Williams, the witnesshimself testified as to his fear and actual threats made towards him or hisfamily. Rainge, 211 Ill. App. 3d at 448.

While we recognize that testimony from State's witnesses that theyfeared for their own and their family's safety is properly admitted when usedto illustrate why the witness had given inconsistent statements (Williams, 262Ill. App. 3d at 743), neither Williams nor Rainge is apposite because, in theinstant case, there was no testimony from Arroyo or Johnson that they had beenthreatened, subjected to a violation, or even afraid for their own safety as aresult of testifying.

The State also posits that Officer Echeverria's testimony was relevantto establish a motive for the shooting and to explain the testimony bywitnesses at trial. The State relies on People v. Carson, 238 Ill. App. 3d457, 606 N.E.2d 363 (1992), in which the defendant argued that the trial courterred in allowing the testimony of a police officer regarding a gang rivalryat the time of the murder in that case. The expert gang testimony in Carsonis significantly more limited than the expert testimony in the instant case. However, "gang-related evidence will not necessarily be excluded if it isotherwise relevant and admissible." Carson, 238 Ill. App. 3d at 464. In theinstant case, as in Carson, we hold that the trial court did not abuse itsdiscretion in allowing Officer Echeverria to testify as an expert witness asthe evidence was relevant and the probative value of the testimony outweighedthe possible prejudice to the defendant. Carson, 238 Ill. App. 3d at 465.

II

Defendant's next major contention is that, pursuant to People v.Whitney, 188 Ill. 2d 91, 720 N.E.2d 225 (1999), his consecutive sentences forfirst degree murder and aggravated discharge of a firearm should be modifiedto run concurrently. The State has conceded this point.

In Whitney, the Illinois Supreme Court held that a consecutive sentenceis required "where the defendant has been convicted of either a Class X orClass 1 felony and where he had inflicted severe bodily injury during thecommission of that felony." Whitney, 188 Ill. 2d at 98-99. In the instantcase, the defendant was convicted of first degree murder and two counts ofaggravated discharge of a firearm. First degree murder is not a Class X orClass 1 felony; it is its own class of felony. 730 ILCS 5/5-5-1(b) (West1994); see Whitney, 188 Ill. 2d at 100. Aggravated discharge of a firearm isa Class 1 felony. 720 ILCS 5/24-1.2(a)(2), (b) (West 1994). The offenseshere occurred as a part of a single course of conduct in which there was nosubstantial change in the nature of the criminal objective. However, the twocounts of aggravated discharge did not result in severe bodily harm to thevictims of those felonies. Therefore, since the Class 1 felonies in theinstant case did not involve the infliction of severe bodily harm to thevictims of those felonies, mandatory consecutive sentences are not providedfor under section 5/5-8-4(a) of the Illinois Unified Code of Corrections. 730ILCS 5/5-8-4(a) (West 1994).

Accordingly, it is hereby ordered that the consecutive sentences foraggravated discharge of a firearm be modified to run concurrently with thesentence for first degree murder. This cause is remanded to the trial courtfor the issuance of a new mittimus.

Affirmed in part and modified in part; cause remanded with directions.

CAHILL, P.J., and McBRIDE, J., concur.