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THIRD DIVISION

February 20, 2002

No. 1-97-3926

JUSTICE WOLFSON delivered the opinion of the court:

Kevin Hamilton literally talked himself into thepenitentiary. His conviction by a jury of the first degreemurder of Curtis Jackson was based almost entirely on his oraland written statements. He was sentenced to 41 years in theDepartment of Corrections.

On appeal, the defendant contends: (1) his statement should have been suppressed; (2) too much gang life evidence wasadmitted; (3) his prior conviction for possession of a controlled substance should not have been admitted to impeach hiscredibility; (4) he was denied a fair trial when the State made improper remarks during closing argument; and (5) his sentencewas based on an improper factor and was excessive. We affirm the defendant's conviction and sentence.

FACTS

Curtis Jackson was shot seven times and killed as he talkedto someone in a small white car at 41st and Indiana Streets in Chicago shortly after midnight on July 9, 1995. Very littleprogress in the police investigation of the death was made untilFebruary 13, 1996, when Officer David Case arrested the defendantfor unlawful use of a weapon.

Case testified that while outside the car defendant told him he did not want to go to jail. Once inside the car, defendantagain said he did not want to go to jail, and asked "would it help if he knew about a murder."

Case showed no immediate interest in the defendant'sinquiry. He took the defendant to the 9th District and processedhim for the unlawful use of a weapon. Again, defendant said hehad information about a murder. He gave Case the name of thevictim, Curtis Jackson, and he gave him the location in Area 1where the murder happened. Case began to take the defendantseriously. He notified detectives from Area 1 that the defendantwas in custody and had information about the murder of CurtisJackson.

Two Area 1 detectives, Cegielski and Crescenzo, went to the 9th District on the morning of February 14. They read thedefendant his rights. The defendant described his role in the shooting of Jackson and told them where they could find theshooter, Shaboo. They arrested Shaboo and brought him to the station. The defendant later identified Shaboo as the shooter.

ASA Elaine Wisnosky arrived at the police station in thelate morning of February 14. She had two unrecordedconversations with the defendant, and then, at about 6:46 to 7:10that evening, the defendant gave a court-reported statement. Shereviewed the completed statement with the defendant and allowedhim to make corrections to it. She read it to the jury.

The confession sets out the defendant's role in the murderand the reason for it in exhaustive detail. At trial, thedefendant did not deny he made the statement. Nor did he say hemade it involuntarily or that he was treated badly. He admittedhe told Officer Case he did not want to go to jail and that hewanted to make a deal. But at all times, said the defendant, hewas merely repeating what he had been told by the police officersand by people he knew, including Shaboo. He made the untruestatements, he said, because the officers led him to believe theunlawful use of a weapon charge would be dropped and he would beallowed to go home. In fact, he said, he was shocked when herealized he was being charged with first degree murder.

Each police witness denied feeding the defendant any incriminating information and denied promising him he could gohome once the statement was made. Cegielski's testimony about what the defendant told him mirrored the defendant'scourt-reported statement to ASA Wisnosky. 

Because the contents of the defendant's confession play theleading role in this appeal, we summarize it in some detail:

Kevin Hamilton was 23 years old at the time of thestatement; he attended high school for one year and then got hisGED. In July of 1995, when the shooting occurred, he was livingat 4445 South Evans in apartment 1610. He remembered the day ofJuly 8, 1995, because that was the day that Randy, a fellowBlackstone, was killed. The defendant was a member of theBlackstone street gang and had been for seven years. TheBlackstone's territory is the building at 4445 South Evans. Heheld a position within the gang as a "motif." He had been amotif for seven months and prior to that he was a "soldier." Amotif's role, according to defendant, is to secure the members ofthe gang with higher rank. The hierarchy of the gang is asfollows: generals, motifs, key soldiers, and soldiers. He was asoldier before he was a motif. Randy was an emir in the gang, anenforcer, "hit man of the nation," a higher rank than thedefendant. Ranks within the gangs are called different names indifferent areas of the city. The ranks at 4445 South Evans wereangels, emirs, mutoddys, and magalises.

When Randy was killed on July 8, 1995, the Blackstonescalled a meeting. He attended the meeting because it wasmandatory. The meeting took place at 4445 South Evans. Defendant then gave names of specific people who attended themeeting. At the meeting, the gang discussed the killing of Randyby the Mafia Insane Vice Lords, a rival gang. The Mafia InsaneVice Lords are the "opposition" of the Blackstones on 4445 SouthEvans. At the meeting, they gave prayer for Randy's passing, andtalked about how it was war between 4445 South Evans and the 4120building, between the Blackstones and the Mafia Insane ViceLords. By the word "war," the defendant said he meantretaliation, "Like eye for eye. They kill one of us; so we killone of them." He said that they decided to retaliate becauseRandy was the emir and he had rank.

After the meeting, he went downstairs to the fifth floor of4445 South Evans to see his friend Saladine. They drank, smoked,and watched a movie. He then left there and went upstairs to"Shaboo's" apartment to play cards and drink. At the time he hadknown Shaboo for a few weeks. Shaboo has several aliases,including Lee Joyson and Shelby Mitchell. Shaboo was also at themeeting and he stated that somebody had to pay for the death ofRandy, "either hell or jail," but he was going to make it rightfor his brother. When he was up in Shaboo's apartment, theydecided to walk up to the Bootlegger to get something to drink.

When defendant and Shaboo exited the front door and startedto walk towards 43rd and Evans, where the Bootlegger lady was, awhite car pulled up in front of 4445 South Evans. There was aheavy-set black male driving the car and no one else was insidethe car. He didn't remember the make or year of the car, butbelieved it was "like an Escort, Tempo, or something like that, asmall car." The car had four doors. Shaboo walked over to theguy in the car and started to have a conversation; defendantstayed back on the sidewalk. After Shaboo finished talking tothe man in the car, he opened the door, and before he got in onthe passenger front side, he said "come on" to defendant. Defendant walked over to the driver-side door and got in the backseat.

They then drove over to the area where Randy had been shotin Mafia Insane Vice Lord territory. They drove around therewith the purpose of retaliation against the Mafia Insane ViceLords. While they were in the car, Shaboo bent down and wasfiddling with his leg or shoe or something. When he came backup, he had a chrome .9 millimeter Smith and Wesson. He passed itto defendant in the back seat. Defendant asked Shaboo what hewanted him to do with it, and he said "just hold it." Defendanttook it and held it while they kept driving around.

They saw the victim, Curtis Jackson, at the corner of 41stand Indiana. He was in front of the liquor store on that corner. Upon seeing the victim, Shaboo said, "there go one of thembitches there." Defendant stated that he understood that to meanthat Curtis Jackson was a Mafia Insane Vice Lord. The mandriving the car stopped across the street from the liquor storeand Shaboo signaled for Curtis Jackson to come over to the car. Mr. Jackson walked over to the car. He was wearing a tee shirt,jeans, and a red cap turned to the left. A cap turned to theleft represents People. Both the Mafia Insane Vice Lords andBlackstones are members of People. Even though these two gangswere within People, it was not unusual for them to be at war. The defendant did not think that Mr. Jackson was a gang member,he thought that he was a bum or something like that.

When Mr. Jackson walked up to the car, Shaboo asked him tobuy beer for them. Jackson said he would, and the driver gavehim some money. Mr. Jackson then went back across the street andinside the liquor store. Once Mr. Jackson walked away from thecar, Shaboo said to defendant, "Give me that," referring to thegun. The defendant then gave Shaboo the gun. The defendantknew, at that point, Shaboo was going to shoot Mr. Jacksonbecause he thought he was a Mafia Insane Vice Lord.

Mr. Jackson then exited the store and walked over to thecar. He started to walk towards the driver's side door, andShaboo said to him, "No, hold it, bring it over here to thepassenger side." Mr. Jackson walked to the passenger side andhanded Shaboo the beer. Shaboo said "thank you" and then shothim six or seven times. Mr. Jackson was standing outside of thecar and the bullets hit him in the chest and neck. Mr. Jackson"folded up like he was trying to protect himself," and then fellto the ground.

The driver sped off down 41st street and back to 4445 SouthEvans. Defendant got out of the car, flashed the Blackstone'sgang sign at the driver, referred to as "extending five," andthen Shaboo said something to the driver and flashed the gangsign as well. Defendant and Shaboo walked to the back of thebuilding where there was a hole in the gate. The hole in thegate was used by the gang members to get guns in and out of thebuilding. Shaboo put the gun through the hole and someone wasthere to retrieve it. They then went around to the front of thebuilding and up to Shaboo's apartment. When they got into theapartment, there were other people there and Shaboo said to them,"We just did this dude right...you should have seen Butterfly'sface...when he was shot." They then drank some beer and playedcards for several hours.

In addition to his testimony about why he made thestatement, defendant denied playing any part in the shooting. Headmitted being a member of the gang, but denied he was a motif atthe time of the shooting.

In addition to the defendant, the defense called an alibi witness, Patricia Turnercobb, who said the defendant was at herhome, at her daughter's birthday party, on the night of the shooting. Also present, she said, were her daughters, son,grandchildren, and goddaughter. None of the others testified. 

The jury returned a guilty verdict. Thedefendant was sentenced to a term of 41 years. This appeal followed.

DECISION

Admissibility of the Confession

This case is before us for the second time. On September 9, 1999, we issued a Rule 23 Order reversing the trial court'sdenial of the defendant's motion to quash arrest and suppress evidence. We held thedefendant's initial arrest by Officer Case was unlawful. We remanded the case to the trial court withinstructions to conduct an attenuation hearing to determine whether there was "sufficient evidence to purge defendant'sconfession from the taint of the unlawful arrest." People v. Hamilton, No. 1-97-3926 (1999) (unpublished order per SupremeCourt Rule 23.

On remand, the trial court conducted the hearing. Officer Case testified to defendant's willingness to share information about the Jackson murder. Case described his call to Area 1detectives and his own exit from the 9th District and any furthercontact with the defendant.

The trial court recognized, and we agree, that there isample evidence the defendant willingly and for his own purposesmade his statements to ASA Wisnosky and the Area 1 detectives. They had nothing to do with the defendant's original arrest and unlawful detention. Case knew nothing about the Jackson murderwhen he arrested the defendant. It was uncontested that all questioners gave defendant his Miranda rights before statementswere made. 

We believe the trial court correctly held the prosecution proved by clear and convincing evidence the defendant'svarious statements were acts of free will, "unaffected by the initial illegality." Brown v. Illinois, 422 U.S. 590, 603; 45 L.Ed. 2d 416, 427; 95 S. Ct. 2254, 2261 (1975). That is, intervening events, centering on his desire to win favorabletreatment from the State on an unrelated charge, persuade us the defendant's statements were not the product of the unlawfularrest. See People v. Gabbard, 78 Ill. 2d 88, 398 N.E.2d 574(1979). Admitting the defendant's statements was not error. 

The Gang Life Evidence Officer David Jarmusz, a gang crimes specialist assigned tothe Chicago Police Department's organized crime division, was allowed to testify as an expert witness on gang life, structure,and behavior. He told the jury how the 135 street gangs in the Chicago area are divided and which areas they control. Heoffered details of gang lingo, symbols, tattoos, and graffiti thegang use to symbolize their allegiance and to establish their identity. He explained gang hierarchy, which ranges fromsoldiers, key soldiers, emirs, motifs, ambassadors, generals, princes, Main 21's, and Chief Malik--at that time, Jeff Fort. Hediscussed the turf wars that arise from time to time because of disputes arising out of the "sale and distribution of narcotics." 

Officer Jarmusz was shown a photograph of the defendant. The photo showed tattoos on the defendant's left chest and rightarm. The officer identified them as gang tattoos commonly usedby Blackstones--the gang in which defendant admitted membership. Officer Jarmusz's testimony paralleled the defendant's court-reported statements about the ranks and duties ofBlackstones and the hand signs used by gang members. 

The defendant agrees, as he must, that some evidence of gang behavior was relevant. After all, it was the defendant'sconfession that established how the inner workings of the Blackstones led to the death of Curtis Jackson. Defendant's rankas a motif and the gang's desire to avenge Randy's death established the motive and the plan for deadly revenge. 

Still, says the defendant, there was too much detail about gang life in Jarmusz's testimony and in the confession heard bythe jury. He contends details about graffiti, tattoos, and drug sales had nothing to do with the defendant's motives and for thatreason, especially when taken with the State's final argument comments about gang structure and behavior, reversible error wascommitted. We do not agree.

We recognize there may be strong prejudice against street gangs in the Chicagoarea. People v. Smith, 141 Ill. 2d 40, 58,565 N.E.2d 900 (1990). At the same time, evidence of gangmembership and gang rivalries becomes relevant when itestablishes the reasons for deadly gang behavior. See People v.Colon, 162 Ill. 2d 23, 30, 642 N.E.2d 118 (1994). Relevant gangevidence is not excluded simply because it may have a tendency toprejudice the accused. People v. Patterson, 154 Ill. 2d 414,458, 610 N.E.2d 16 (1992).

In Patterson, expert testimony, using photographs, about gang membership and allegiances was held relevant to explain the"defendant's expressed motivation behind the otherwise inexplicable murders." People v. Patterson, 154 Ill. 2d at 459. There, as here, the motive for the crime--pursuit of gang goals--was not theoretical, but was admitted by the defendant. We have said on several occasions gang evidence is admissible to explain what otherwise would appear to be a random andinexplicable attack. People v. Resendez, 273 Ill. App. 3d 751, 753-54, 652 N.E.2d 1357 (1995); People v. Ayala, 208 Ill. App. 3d586, 594, 567 N.E.2d 450 (1990). 

We do agree with the defendant that the torrent of detail concerning gang life, especially the prevalence of gang tattoosand the competitive narcotics sale enterprises, was unnecessary piling on. The trial court should have done some editing. Butthe decision to admit gang evidence is not to be overturned on appeal "unless a clear abuse of discretion is shown." People v.Colon, 162 Ill. 2d at 30. Also see People v. Gonzalez, 142 Ill. 2d 481, 489-90, 568 N.E.2d 864 (1991).

The defendant's case for reversible error relies on Peoplev. Mason, 274 Ill. App. 3d 715, 653 N.E.2d 1371 (1995). There,admission of excessive detail about gang life other thanorganizational structure was held to be reversible error. But inMason facts about gang rivalries, presentment, graffiti, tattoos,and drug sales were not relevant to motive because the defendantand victim were members of the same gang. That is not the casehere. We hold, despite the expert's testimonial overkill, therewas no reversible error.

Use of the Defendant's Prior Conviction

The trial court denied the defendant's motion to bar the State from using his prior conviction for possession of acontrolled substance for impeachment purposes. Relying on that ruling, defense counsel elicited the fact of conviction on directexamination.

The State does not contend the defendant forfeited the proposed error by eliciting the conviction on direct examination. See Ohler v. United States, 529 U.S. 753, 146 L.Ed. 2d 826, 120S.Ct. 1851 (2000). It does say the trial court properly weighedthe probative value of the conviction against the danger ofunfair prejudice and thus did not abuse its discretion. Thecourt said:

"I find that the prejudicial value, prejudicial aspect ofthat conviction does not outweigh probative value. Possession controlled substance is [sic] a relatively minor felony, and isnot naturally prejudicial to the charge of first degree murder. So the motion is denied***."

While the probative value of a controlled substance conviction is far from overwhelming, it is apparent the trialcourt did perform a weighing test of sorts, something it is charged with doing. People v. Bramlett, 276 Ill. App 3d 201,207, 658 N.E.2d 510 (1995). We find enough probative value andenough of a weighing test to conclude the trial court did notabuse its discretion when it allowed the prior conviction. SeePeople v. Williams, 173 Ill. 2d 48, 670 N.E.2d 638 (1996).

Whether There Was Proof Beyond a Reasonable Doubt

Defendant's court-reported confession hangs over his failure of proof claim like a dark cloud. It tells a detailed andpersuasive story of mindless gang revenge. Much of it mesheswith the other evidence--a firearms examiner finding .9millimeter shell casings at the scene, a witness seeing Jacksontalk to one or more persons in a white car at 41st and Indiana just before the shooting, and the recent demise of fellow gangmember, Randy.

Defendant's confession creates legal accountability for the murder. It shows him aiding and abetting Shaboo in the planningand commission of the offense. He said he held the gun and he said he handed it to Shaboo just before the killing. That islegal accountability, under the cases and the statute. See People v. Hill, 53 Ill. App. 3d 280, 368 N.E.2d 714 (1977); 720ILCS 5/5-2 (West 1994).

In order to return a not guilty verdict the jury would have had to give credence to the defendant's claim he merely wasrepeating what he had been told and he confessed because he believed the police when they said the weapons charge would bedropped and he would be sent home. The jury's guilty verdict obviously relied on the confession. We will not secondguess determinations of witness credibility and testimonial weight reached by the trier of fact. People v. Steidl, 142 Ill.2d 204, 226, 568 N.E.2d 837 (1991). We conclude there wassufficient evidence to support the jury's verdict.

The State's Closing Arguments

The defense contends several closing argument remarks by the prosecution constituted reversible error. We have examined theState's comments and find they do not, singly or together, rise to the level of reversible error. The bounds of permissiblecomment may have been exceeded on occasion, but we recognize "theverdict must not be disturbed unless it can be said that theremarks resulted in substantial prejudice to the accused, suchthat absent those remarks the verdict would have been different." People v. Byron, 164 Ill. 2d 279, 295, 647 N.E.2d 946 (1995).

We are especially troubled by two of the State's comments:

"You don't have to buy that. That's a joke. It's an insultto your intelligence. Why don't the detectives just throw their badges in the toilet? Why don't the State's Attorneys just throwtheir law degrees in the toilet too?"

And, "this is a defense of desperation. They [defenseattorneys] know this puts him in jail. They've got to think ofsomething." 

We have examined the defense final argument and we find no support for the State's claim that its comments were invited. We continue to be puzzled by the State's willingness to riskthe integrity of convictions by making comments we repeatedly have held cross the line of propriety. The prosecution cannotuse its official position to bolster witness credibility. SeePeople v. Fields, 258 Ill. App. 3d 912, 920-21, 631 N.E.2d 303(1994); People v. Montgomery, 254 Ill. App. 3d 782, 793-96, 626N.E.2d 1254 (1993). Nor can it accuse defense counsel offabricating a defense. People v. Emerson, 97 Ill. 2d 487, 497,455 N.E.2d 41 (1983).

Disapproval of argument aside, we conclude the defendant was not deprived of a fair trial.

The 41-year Prison Sentence

We find nothing in the record that supports the defendant's claim that the trial judge improperly considered the victim'sage, 39, when pronouncing sentence. The court simply was describing the victim--"a poor unfortunate resident from thesouth side, an older person." 

Nor can we say the length of the sentence was an abuse of the trial court's sentencing discretion. It was well within thestatutory range of 20 to 60 years (See 730 ILCS 5/5-8-1(a)(1)(a) (West 1994), and "proportionate to the nature of the offense andthe possibilities of rehabilitation." People v. D'Arezzo, 229 Ill. App. 3d 428, 434, 593 N.E.2d 1076 (1992). We find no errorin the sentencing.

CONCLUSION

While this was not a perfect trial, as we have noted above, we believe the defendant received a fair trial. For that reasonwe affirm the defendant's conviction and sentence.

AFFIRMED.

HOFFMAN, P.J., concurs.

Justice South concurring in part and dissenting in part:

While I do concur with the majority that the trial court didnot err in admitting defendant's statements, I must respectfullydissent with that portion of the opinion which holds that theadmission of the gang life evidence did not deprive defendant ofa fair trial.

There is no question that motive was an issue in this case,and that element was firmly established by the admission ofdefendant's statement that the shooting was done in retaliationfor the earlier homicide of a fellow gang member. However, thegang life testimony of Officer Jarmusz far exceeded that quantumof evidence which was necessary to establish motive orcorroborate certain portions of the statement. What may havestarted out as corroborative testimony burgeoned into anexposition on the pervasiveness and evils of street gangs inChicago, the only conceivable purpose of which was to prejudicedefendant in the eyes of the jurors. Even the majorityacknowledges that the "torrent of detail concerning gang life"was "testimonial overkill."

The central issue was whether defendant was present at thescene of the crime and, therefore, accountable for the victim'smurder. There was no physical evidence or eyewitness testimonylinking defendant to the crime scene. In fact, there was somediscrepancy between defendant's statement that the victim wasshot at close range as he was standing next to the car and themedical examiner's testimony that there was no evidence of close-range firing. The only evidence the State presented linkingdefendant to the crime scene was his confession, which hechallenged through his testimony that he was not present at thescene of the murder and that his statements to the police werebased solely upon what was told to him by others who wereactually there, and that he was simply telling the police whatthey wanted to hear in an effort to "deal" his way out of prison. Whether or not this court finds his testimony credible isirrelevant, for it is not our job as a court of review to reweighthe evidence and determine matters of credibility.

In this case, the fairness of defendant's trial wasseverely compromised by the introduction of what I believe to behighly irrelevant, inflammatory and excessive gang testimony. The admission of this evidence brings into serious questionwhether the jury fairly considered defendant's alibi evidencethrough the testimony of Patricia Turnercobb and his testimonyregarding the circumstances surrounding his statements. I findit highly unlikely that the jury could have ignored this"torrent" of "overkill" when evaluating the defense.

Officer Jarmusz had absolutely no knowledge about this case,defendant or the circumstances surrounding the arrest and wascalled solely for his expertise on street gangs. Rather thanestablish motive, he simply gave the jury a crash course onChicago's street gangs. Furthermore, his testimony that feudsand wars between gangs within the "People" erupt from time totime due to turf control problems arising out of the "sale anddistribution of narcotics" implied that defendant was dealing indrugs, an implication not supported by the record. Not only wasthe probative value of that evidence far outweighed by itsprejudicial impact, it permitted the jury to draw insupportableinferences of other crimes.

The majority distinguishes Mason based upon the fact thatthe defendant and the victim in that case were members of thesame gang, whereas in the instant case the defendant and victimwere members of opposing gangs. I find that to be a distinctionwithout a difference. What Mason held was that while theorganizational structure of the Gangster Disciples was relevantto the State's case in order to demonstrate defendant's possiblemotive for shooting the victim, the facts about gang rivalries,presentment, graffiti, tattoos and drug sales clearly did not goto motive. Mason, 274 Ill. App. 3d at 722. Similarly, in theinstant case, while the organizational structure of theBlackstones, the Mafia Insane Vice Lords and their umbrellaorganization, the "People," might have been relevant todemonstrate defendant's motive for participating in the murder ofa suspected member of a gang within the "People" organization,the facts about graffiti, tattoos, logos, hand signals, clothingand drug sales clearly did not prove or establish motive.

While the majority does not use the phrase "harmless error,"I assume that is what is meant when they find that in spite ofthese errors defendant received a fair trial. However, since theevidence in this case was far from overwhelming and rested solelyupon defendant's challenged statements, harmless error is not theescape hatch we should utilize in placing our imprimatur on whatI deem to be an unfair trial.

For these reasons, I would reverse and remand the cause fora new trial.