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FIRST DIVISION

December 26, 2000

No. 1-98-3648

PRESIDING JUSTICE McNULTY delivered the opinion of thecourt:

Once again we must decide whether a prosecutor's closingargument requires reversal of a murder conviction. We find thatthe argument here improperly directed the jury's attention awayfrom the issues. Because we find the evidence closely balanced,we cannot consider the error harmless. Thus, we reverse andremand for a new trial.

Around 10 p.m. on November 15, 1995, Charinida Willford saton the steps of a house near her home, talking with Tasha Stinsonand some other friends from the neighborhood. A bullet fromacross the street passed close by Stinson's head, and a shotgunblast killed Willford. Stinson told police she saw two black mendressed in black in a gangway across the street. She did notfurther describe the men. Police found spent cartridges in thegangway, but not outside the gangway.

About a month later Detective Richard Curley interviewedTyrone Baldwin concerning an unrelated matter. Following thatinterview, Curley went to see Stinson. She told him she saw thetwo shooters come out of the gangway before they began shooting. She had seen one of the men several times in the neighborhood. When Curley showed her an array of photographs, she chose apicture of defendant Roy Fluker. Later, she identified defendantin a lineup as the person she saw shooting a handgun on November15, 1995. Police then charged defendant with the first-degreemurder of Willford and the attempted murder of Stinson.

In discovery defense counsel learned that, before Curleywent to interview Stinson, Baldwin had identified defendant asthe shooter. Some months later Baldwin went to the office of thepublic defender, where he wrote out a statement concerning hisconversation with Curley. He denied making any identification ofthe shooter, saying that he did not see who shot the guns. Hesaid Curley asked him if he knew that defendant had shotWillford, and Baldwin told Curley he did not know that.

At trial Stinson testified that she, Baldwin and Willfordwere talking with Donald and Derrick Acker and two other personsoutside on November 15, 1995. When she saw a red beam land onher she immediately got down to the floor of the porch, just asthe shooting began. She said she did not look to see where thebeam came from. But later during the questioning she said that,before she got down, she looked up and saw two men dressed inblack, one holding a handgun, in the gangway across the street. She admitted that she told Curley she had seen defendantshooting.

Stinson testified that after the shooting she and Baldwinsaw a white Oldsmobile less than a block away. She hadpreviously seen defendant driving that car. At first she saidthat she never told police the man she had seen in the car wasthe same as the man she saw shooting, but later she contradictedthat testimony. She said she did tell police the man she hadseen in the car was the same as the man she saw shooting.

The prosecuting attorney, Laura Morask, asked Stinsonwhether she had refused to come to court at an earlier stage ofthe proceedings. Stinson admitted that she had not come, becauseher "life could be in danger." Some people she saw on the streetasked her if she was going to testify against defendant. Shetold them she would not. She testified that she told the truthin her written statement to police; in that statement she saidshe saw defendant shoot at her group.

At the conclusion of cross-examination, the court asked forclarification:

"Q. To be clear, is it your testimony today thatyou saw or did not see the defendant Roy Fluker at orin the gangway where the shooting came from?

A. Did not see.

Q. Did not see. Secondly, is it your testimonytoday that you saw or did not see the defendant RoyFluker at or in the white Oldsmobile on the night ofthe shooting?

A. I did not see him in the white Oldsmobile,true, or did not shoot."

But on further examination by the prosecutor, Stinson reiteratedthat she told Curley the truth. She said she saw defendantoutside on the night of the shooting, but she did not rememberwhere. The prosecutor reminded her of what she told Curley. Stinson answered that she could not say whether she saw defendantshooting. The court asked her why. She said, "I have kids thatlive there."

An assistant State's Attorney testified that he spoke withStinson before trial. She said she told Curley the truth, butshe said that she would not identify defendant at trial as theshooter because, in the assistant State's Attorney's words, "shehas three children; two of the children from three separatefathers, and two of the fathers have been killed already fromgang violence and there is no way that she was going tojeopardize the life of her other children to identify [defendant]in court." The assistant State's Attorney clarified that Stinsonsaid she "was afraid of Roy Fluker or the people that he knowsand associates with directly coming to her family and puttingharm to her family."

A police officer testified that in November 1995 the UnknownVice Lords were rivals of the Four Corner Hustlers in a strugglefor control of areas for sales of narcotics.

Baldwin testified that he and the Acker brothers belonged tothe Unknown Vice Lords, rivals of the Four Corner Hustlers. Hesaw the red beam coming from the gangway, then he saw two men inthe gangway. One man looked like defendant, but Baldwin saidthat the man was "just a look alike." He saw the man come out ofthe gangway holding a handgun, along with another man holding ashotgun. Baldwin ran, looking back, as the men started shooting. On cross-examination Baldwin agreed that the man he saw holding ahandgun "looked like Roy but wasn't Roy."

On direct examination Baldwin swore that about a half hourafter the shooting he and Stinson saw a white Oldsmobile parkedin the area. Defendant and another man approached the car. Theother man broke the window, then defendant got in the car anddrove off. Baldwin had never seen defendant drive that carbefore.

Baldwin admitted that he spoke to Curley about a month afterthe murder. After Curley finished interviewing him about anothermatter, Baldwin volunteered that he witnessed Willford's murder. Baldwin picked defendant's picture from a photo array, and laterhe identified defendant in a lineup as the person he saw shootinga handgun on November 15, 1995.

The prosecutor asked Baldwin about the statement he wroteout for the public defender. Baldwin said he went to thedefender's office in response to a subpoena, and he stayed in theoffice for two hours because the attorneys would not let himleave. They treated him as though he were on trial. He wrotewhat the attorney wanted so he could leave. Baldwin admittedthat he did not have the subpoena. His mother received it andtold him about it.

Toward the end of his testimony he reiterated that he didnot know who shot at him, but the man looked like defendant. Headmitted that he told police he saw defendant shooting thehandgun on November 15, 1995.

Curley corroborated most of Baldwin's trial testimonyconcerning their discussion in the police station. Curley addedthat Baldwin told him he knew defendant was a member of the FourCorner Hustlers, and Baldwin recognized the white Oldsmobile asdefendant's car.

Curley also recounted his interview with Stinson. She toldCurley she recognized one of the shooters as a member of the FourCorner Hustlers. When Curley showed her the photo array sheimmediately selected defendant's photograph, and she identifiedhim in the lineup as the shooter she saw. She also told Curleyshe saw defendant by the white Oldsmobile about a half hour afterthe shooting.

Following the lineup, Curley asked defendant if he had anytattoos. Defendant showed him a tattoo of the number 4. Curleytestified that the symbol indicated membership in the Four CornerHustlers.

Donald and Derrick Acker both testified that they ran oncethe shooting began. They both looked back toward the source ofthe gunfire but saw no one - the shots came from inside thegangway. They were both members of the Unknown Vice Lords, andDonald admitted that the Four Corner Hustlers sometimes countedas their rivals.

An attorney working for the public defender testified thatoffice records showed the office sent Baldwin no subpoena. Theattorney spoke with Baldwin at length when he came to the office. Baldwin did not ask to leave, no one told Baldwin he could notleave, and all doors remained unlocked. Baldwin told theattorney that the police report misrepresented his conversationwith Curley. In particular, Baldwin never said he couldrecognize either shooter, and he never said he saw defendantshooting.

In closing argument defense counsel suggested that Baldwinmay have decided to lead police to suspect defendant, a member ofa rival gang, as a shooter here both to hurt the rival gang andto curry favor with police. Baldwin then needed only to persuadeStinson to help him with the plan. Stinson feared not onlydefendant's gang, but Baldwin's gang, too. Baldwin recanted attrial because his conscience bothered him.

The prosecutor argued in rebuttal:

"The only issue in this case is not is this a mistakenidentity; do we have the right guy? That is not theissue. The only issue is who do you want to controlour criminal justice system?"

The court overruled defense counsel's objection. The prosecutorcontinued:

"Who do you want to control our society? Who doyou want to make the laws and to order us to follow thelaws and live in an orderly society? Do you want theJudge and you jurors to control our criminal justicesystem or do you want Roy Fluker to control thecriminal justice system? Do you want the people whopay their taxes, write out their real estate tax bills,and all of the good citizens who are able to live alaw-abiding life to control society or do you want hisfriends; the Four Corner Hustlers to control oursociety?"

Again the court overruled defendant's objection. Soencouraged, the prosecutor argued:

"Do you want a society that is ruled by fear andintimidation; by people that make a mockery of whatshould be your job to determine justice and to live ina law-abiding society? *** [L]etting this guy gobecause he was able to instill fear into Tasha Stinson;letting this guy go because he was able to finagle theshenanigans with these subpoenas and these mysteriouspeople popping up here; popping up there; if he's ableto finagle all of this, let him go. Let him walk outthat door and make a mockery of you; a mockery of theJudge."

To this, the judge sustained an objection and reminded the jurorsthat "there has been no direct testimony that Mr. Fluker engagedin intimidation."

The prosecutor hypothesized that Baldwin's consciencebothered him after he saw Willford shot:

"Not all gangbangers have absolutely no conscience. ***When gangbangers creep out there under cover of darkthey're not suppose[d] to hit children and innocenttargets. That even violates their own code."

The court overruled an objection based on the lack of evidence. The prosecutor suggested that Baldwin must have been afraid oftestifying, but "he can't show that fear. A gangbanger doesn'tshow fear certainly not in front of rival gangbangers, but it'salso the unwritten code of gang conduct." Again, the courtoverruled an objection.

The prosecutor continued:

"[E]ven if you're a rival, you're still violating agang rule if you point out a gang member in court."

The court sustained an objection and pointed out that theprosecutor presented no evidence of any gang rules.

The prosecutor then discussed the testimony in court of theStinson and Baldwin, and the inconsistencies with the out-of-court statements. She said:

"What is the defense here? There is no defense. Is itmistaken identity? Did anybody come on that stand andsay that man didn't do it?"

The judge overruled the objection, but he also reminded the jurythat the burden of proof does not shift to the defense. Theprosecutor said, "Did you hear Tasha and Tyrone say that is notthe guy?" After another overruled objection, she said, "Theydidn't say that is not the guy at all."

The prosecutor soon returned to her original theme:

"The bottom line is who runs this courtroom?

[Defense counsel]: Objection.

THE COURT: Overruled.

MS. MORASK: Do you run it or do they run it? Doyou want to let him go; let him walk out that door? You may as well give him a robe. You may as well givehim a robe and a gavel and make him a Judge -

[Defense counsel]: Objection.

MS. MORASK: - because he's the arbiter of who'sguilty and who's not."

Although the court sustained the objection, the prosecutorwent on:

"Well, you know that the Four Corner Hustlers willcontrol the City as well as all the other gangs if youallow them to make a mockery of the justice system. ***You can't let them make a mockery of you."

The court again sustained an objection. The prosecutor concludedthat Willford's mother had to "live each and every day with theknowledge that her little girl; her twenty-one year old baby,walked out that door merely to go across the street and ended upabout an hour and a half later lying in an alley riddled withbuckshot wounds *** and said [']I'm not ready to die[']."

Over defendant's objection, the court instructed the jury:

"A person who is legally responsible for theconduct of another may be convicted for the offensecommitted by the other person even though the otherperson, who it is claimed committed the offense, hasnot been prosecuted."

The jury found defendant guilty of the first-degree murderof Willford and the attempted murder of Stinson. After denyingthe motion for a new trial, the court sentenced defendant toconcurrent terms of 37 years for the murder and 30 years for theattempt.

On appeal defendant first contends that Stinson's statementsto Curley cannot be considered as substantive evidence, and thusthe admissible evidence failed to prove the identity of theshooter. Section 115-10.1 of the Code of Criminal Procedure of1963 (725 ILCS 5/115-10.1 (West 1994)) permits the use of priorinconsistent statements as substantive evidence if "the witnessis subject to cross-examination concerning the statement, and *** the statement *** narrates, describes, or explains an event ***of which the witness had personal knowledge, and *** the witnessacknowledged under oath the making of the statement."

Here, defense counsel ably cross-examined Stinson concerningher out-of-court identification of defendant as the shooter. Thestatement described the shooting Stinson witnessed. And, underoath, she acknowledged that she told Curley the truth about theshooting. She even acknowledged that she told Curley she sawdefendant shoot. Although she equivocated on much of hertestimony, we find sufficient support for the trial court'sdecision to permit use of the statements as substantive evidencethat Stinson saw defendant shooting. See People v. Hastings, 161Ill. App. 3d 714, 720, 515 N.E.2d 260 (1987).

When a defendant challenges the sufficiency of the evidence,this court must defer to the findings of the trier of fact, whosaw and heard the witnesses. People v. Jefferson, 24 Ill. 2d398, 402, 182 N.E.2d 1 (1962). But if the evidence is sounsatisfactory as to leave a reasonable doubt of the defendant'sguilt, we must reverse the conviction. People v. Schott, 145Ill. 2d 188, 206-07, 582 N.E.2d 690 (1991). For example, theappellate court reversed the conviction in People v. Ephraim, 133Ill. App. 2d 310, 273 N.E.2d 225 (1971), because of substantialinconsistencies in the testimonies of prosecution witnesses, andbecause the testimony showed the witnesses had, at best, aminimal opportunity to view the offender at the crime scene. There, a key witness testified that he recognized defendant atthe scene, and he knew defendant from the neighborhood. But thedefense showed that the witness told police at the scene that herecognized only one of the offenders, and he named someone otherthan the defendant.

Similarly, Stinson here told police at the scene she saw twoblack men dressed in black; she gave no further description. Other witnesses at the scene, like the other witnesses inEphraim, said they had no opportunity to see the offenders. Thelocation of the cartridges supports their testimony that thegunmen never stepped forward out of the gangway. Baldwin attrial testified that he saw the shooters step forward from thegangway as they began to shoot. One looked like defendant, butBaldwin was not sure who it was. On a direct question fromdefense counsel, Baldwin said defendant was not the shooter. Buthe admitted he told police he saw defendant shoot.

While this case presents a very close question concerningthe sufficiency of the evidence, we hold that the jury could findthe out-of-court statements of Stinson and Baldwin more crediblethan their testimony at trial. See People v. McBounds, 182 Ill.App. 3d 1002, 1014-15, 536 N.E.2d 1225 (1989). Out-of-courtidentifications alone may establish guilt, even if recanted attrial. People v. Bailey, 265 Ill. App. 3d 262, 276-77, 638N.E.2d 192 (1994). Stinson and Baldwin looked toward the gangwayat a different angle from that at which the Ackers saw theshooting, and the Ackers had to look backward as they ran awayfrom the gunfire to see the offenders. The streetlight couldhave given Stinson and Baldwin a brief, but sufficient,opportunity to see the offenders even if the offenders remainedat the mouth of the gangway. Accordingly, we hold that theprosecution presented evidence which could support theconvictions.

We reverse and remand for a new trial due to the pervasivemisconduct of the prosecutor in rebuttal argument. While courtspermit prosecutors wide latitude in closing argument, "it isimproper for the prosecutor to do or say anything in argument theonly effect of which will be to inflame the passion or arouse theprejudice of the jury against the defendant, without throwing anylight on the question for decision." People v. Smith, 141 Ill.2d 40, 60, 565 N.E.2d 900 (1990). Under general ethicalprinciples:

"The prosecutor should refrain from argument whichwould divert the jury from its duty to decide the caseon the evidence, by injecting issues broader than theguilt or innocence of the accused under the controllinglaw, or by making predictions of the consequences ofthe jury's verdict." People v. Martin, 29 Ill. App. 3d825, 829, 331 N.E.2d 311 (1975).

Here, with the opening thrust of rebuttal argument, theprosecutor not only failed to throw light on the issues in thecase, she actively distracted the jurors from the issues. Thejury needed to decide, first and foremost, whether Baldwin andStinson had an adequate opportunity to see the offender and, ifso, whether to believe their out-of-court statements namingdefendant as one of the shooters. But the prosecutor turned thejury's attention away from the issues in an effort to turn thecase into a referendum on attitudes toward gangs. Shemisinformed the jury:

"The only issue in this case is not is this a mistakenidentity ***. The only issue is who do you want tocontrol our criminal justice system? ***

*** Do you want *** the Four Corner Hustlers tocontrol our society?"

The trial court exacerbated the error by overrulingdefendant's prompt, appropriate objections. People v. Kidd, 147Ill. 2d 510, 544, 591 N.E.2d 431 (1992). The court's actionreinforced the direction of the jury's attention away from theidentification of the shooter to disapproval of the power ofgangs.

Similar comments later in the argument, about givingdefendant a robe and permitting him to make a mockery of thejustice system, further misdirected the jury from determinationof the issues. See People v. Fletcher, 156 Ill. App. 3d 405,411-12, 509 N.E.2d 625 (1987). By persisting in the commentseven when the court sustained objections, the prosecutor undercutthe salutary effect of those rulings. Fletcher, 156 Ill. App. 3dat 411. Also, the evidence provided no support for theprosecutor's speculation concerning gang rules. See Martin, 29Ill. App. 3d at 829.

The prosecution argues that defendant invited the improperremarks by suggesting that Baldwin might have decided to name aplausible member of the rival gang as the shooter, and Baldwincould have persuaded Stinson to support the identification. Wedo not see how the defense theory of a motive formisidentification invited the prosecution to direct the jury'sattention away from the issue of identification of the shooterand to turn the trial into a referendum on gangs. The defensetheory concerning the issues in the case did not invite a purelyinflammatory response directing the jury to ignore the issues. See People v. Ray, 126 Ill. App. 3d 656, 660, 467 N.E.2d 1078(1984).

Defendant also objected to the prosecutor's question, "Didanybody come on that stand and say that man didn't do it?" Thejudge attempted to clarify that the prosecutor could discuss thetestimony of prosecution witnesses. But the judge, by overrulingthe objection, allowed the prosecution to give the jurors theimpression that defendant should have brought in a witness to sayhe was not the shooter, especially because the prosecutorrepeated the comment in various forms after the court overruledthe objection. See People v. Adams, 281 Ill. App. 3d 339, 346,666 N.E.2d 769 (1996). The remarks improperly shifted the burdenof proof to defendant. See Adams, 281 Ill. App. 3d at 346. Moreover, the prosecutor misstated the evidence when she said thewitnesses never testified that defendant was not the shooter. Infact, Baldwin at one point testified that the shooter looked likedefendant, but he was not defendant. See People v. Linscott, 142Ill. 2d 22, 38, 566 N.E.2d 1355 (1991).

The case presented a very close question concerning thecredibility of the out-of-court identifications of defendant asthe shooter. Considering the cumulative effects of the impropercomments in this close case (see People v. Roach, 213 Ill. App.3d 119, 125, 571 N.E.2d 515 (1991)), we find that the jury mayhave reached a different result without the remarks, so theimproper remarks constituted a material factor in the conviction. See People v. Montefolka, 287 Ill. App. 3d 199, 212, 678 N.E.2d1049 (1997). Accordingly, we reverse the convictions and remandfor a new trial.

Defendant raises two further issues that may arise onretrial. First, he contends that the prejudicial effect ofevidence of gang affiliation far outweighs its probative value. Evidence of gang activity is admissible to provide a motive foran otherwise inexplicable act, or if it is relevant to any otherissue in dispute, as long as its prejudicial effect does notsubstantially outweigh its probative value. People v. Matthews,299 Ill. App. 3d 914, 922, 702 N.E.2d 291 (1998).

Here, three witnesses in the group fired upon admitted thatthey belonged to the Unknown Vice Lords, and two of them admittedthe gang had a rivalry with the Four Corner Hustlers. A policeofficer testified that the two gangs competed for control ofnarcotics trafficking areas. Curley identified defendant'stattoo as an insignia of membership in the Four Corner Hustlers. We find the evidence related to the motive for an otherwiseinexplicable act. It also helped explain Stinson's apparent fearof testifying. While the evidence of gang affiliation hassubstantial prejudicial effect, it also has substantial probativevalue. The trial court did not abuse its discretion bypermitting the jury to hear the testimony pertaining to gangs. See People v. Carson, 238 Ill. App. 3d 457, 465, 606 N.E.2d 363(1992).

Finally, defendant contends that the court erred byinstructing the jury that defendant could be legally accountablefor the actions of another person, even if that person "has notbeen prosecuted." On remand the prosecution should presentevidence concerning the status of the investigation into theidentity of the man with the shotgun. If the evidence shows thatthe prosecution has not brought anyone to trial on the charge ofshooting the shotgun blast which killed Willford, the trial courtshould repeat the instruction it gave here. See People v. Spain,285 Ill. App. 3d 228, 238, 673 N.E.2d 414 (1996).

The court properly allowed the jury to consider Stinson'sout-of-court statements as substantive evidence that sheidentified defendant as the man she saw shooting a handgun when ashotgun blast killed Willford. The out-of-court statementssufficed to support a verdict finding defendant guilty ofattempted murder and as an accomplice to murder. The trial courtproperly admitted evidence of defendant's gang affiliation andthe gang affiliations of persons in the group with Willford,along with evidence of the rivalry between the two gangs. Butthe prosecutor's extensive improper remarks directing the jury'sattention away from the issues in the case require reversal.

Reversed and remanded.

FROSSARD and COHEN, JJ., concur.