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                                                                                                                                                                                        SECOND DIVISION
                                                                                                                                                                                        October 18, 2005       

JUSTICE WOLFSON, delivered the opinion of the court:

FACTS

Ian Bomkamp, Oscar Martinez, and defendant were triedtogether before a jury for the first degree murder and aggravatedbattery of Walter Warlyn. The following evidence was presentedat their trial.

The victim's father, Roland Warlyn, testified he owned abuilding in Chicago that housed his catering business. Thevictim lived in the apartment in the building and worked atRoland's catering business. Roland was aware that the victim wasa heroin user and a member of a street gang. On December 16,1998, Roland gave the victim permission to borrow a white Fordcatering van to go out for the evening. When Roland arrived atwork the following morning, he noticed the lights in the buildinghad been left on and fast food cups were lying on the floor. Thevictim did not show up for work. Roland learned later that daythat his son had been killed.

Chicago police officer D. Finley testified that on December17, 1998, he was dispatched to Legion Park to investigate apossible death. Finley arrived at Legion Park and saw the victimlying face down. Finley could not feel a pulse on the victim andcalled for an ambulance. Once the victim's body was turned over,Finley noticed severe trauma to the victim's head and face and abullet wound to the victim's temple. Finley also noticed a largetattoo on the victim's abdomen. Finley believed the tattoorepresented membership in the Imperial Gangsters street gang. Hefound a set of Ford keys in the victim's pocket. A white Fordvan parked approximately 100 yards from Legion Park matched theset of keys.

Chicago police officer Vito Ricciardi testified that hearrested Jill DeShon on a drug charge unrelated to this case inFebruary 1999. After the arrest, DeShon told Ricciardi she hadinformation relating to the victim's killing. Based on thisinformation, Ricciardi began investigating Bomkamp, Martinez, anddefendant.

DeShon testified that on the evening of December 16, 1998,she went to Legion Park with some friends. Bomkamp, a rankingmember of the Simon City Royals street gang, was with DeShon inthe park. DeShon left the park by herself to meet Bonnie Lopezat a nearby restaurant. DeShon brought Lopez back with her tothe park where Bomkamp had remained. DeShon testified that atsome point after returning to the park, Martinez, also a rankingmember of the Simon City Royals gang, and defendant arrived. Martinez and defendant were accompanied by two men whom DeShondid not know. The group stayed at the park drinking alcohol andsmoking marijuana. DeShon did not drink but she smoked somemarijuana.

DeShon said the group left the park in Martinez's car atapproximately 10 or 11 p.m. They drove around looking for drugsand eventually stopped at a social club. Although DeShon andLopez were allowed to use the restroom, the doorman would not letthe others inside the club. DeShon saw the victim at the doortalking with Bomkamp, Martinez, defendant, and the two unknownmen. The victim left the club with the group. DeShon got intoMartinez's car with Martinez, defendant, Lopez, and the two men. DeShon saw the victim and Bomkamp leave in a white van. While inthe car, DeShon heard defendant say they were going to beat upthe victim.

The victim and Bomkamp followed the others to Legion Park. Once at the park, DeShon and Lopez sat down on a bench. The restof the group stood nearby. DeShon saw Bomkamp, Martinez,defendant, and the two unknown men start hitting the victim withtheir fists. The victim fell to the ground and yelled for themto stop. The men then began kicking the victim. Bomkamp leftthe group and walked in the direction of a fence located near thepark's perimeter. DeShon believed the Simon City Royals commonlyhid guns near the fence. Bomkamp returned with a gun and shotthe victim. After hearing the gunshot, DeShon told Lopez, whowas drunk at the time, to stand. The women walked over toMartinez's car and got inside. Martinez, defendant, and one ofthe other men got into the car with them. The other man stayedbehind and fired off more gunshots. DeShon saw Bomkamp go to thevictim's van but did not see what, if anything, he did to thevan. Bomkamp and the other shooter joined the rest of the groupin the car and drove away. Defendant, DeShon, and Lopez weredropped off near DeShon's house. Defendant told DeShon not tosay anything about what she had seen at the park.

DeShon said she was arrested by Officer Ricciardi on a drugcharge on February 4, 1999. Approximately one week later, DeShoncalled Ricciardi and told him what happened on December 16, 1998. DeShon's mother convinced her to contact police after she wasarrested. DeShon said she had not contacted police earlierbecause defendant had threatened her. Deshon testified that thepolice did not offer her a deal in exchange for her testimonyagainst Bomkamp, Martinez, and defendant.

On cross-examination, DeShon admitted using a variety ofdrugs, including LSD, cocaine, mushrooms, PCP, Valium,amphetamines, and marijuana. DeShon admitted she had beenarrested for unlawful use of a weapon and possession of acontrolled substance with intent to deliver. After her arrest,she told police about the shooting. Deshon pleaded guilty to thecharges, was placed on probation, and immediately broke the termsof her probation. She moved to Colorado and dropped out of adrug rehabilitation program. DeShon remained a fugitive untilMarch 27, 2001.

DeShon denied telling police about the murder to get lenityon those charges. DeShon gave a written statement to police andtestified before the grand jury. In both instances, she said shemet the victim on the evening of December 17, 1998. When askedabout her previous statement, DeShon testified she "did not know"the victim was found dead the morning of December 17, 1998. DeShon admitted she provided a time line of the shooting topolice in February 1999, but did not remember telling a detectivethe victim was killed between 10 and 10:30 p.m.

Doctor Tae Lyong An, a forensic pathologist for Cook County,testified he performed an autopsy on the victim. Dr. An sawseveral abrasions and bruises on the victim's face and body. Healso saw three gunshot wounds--two entry wounds and one exitwound. Tests showed that the victim had consumed cocaine,heroin, and alcohol before he was killed. Dr. An believed thevictim's death was caused by multiple gunshot wounds.

Oscar Montanez testified he was a member of the ImperialGangsters street gang and knew the victim as a fellow gangmember. Montanez said members of his gang wear the colors blackand pink and receive tattoos depicting the Imperial Gangstercrown. Montanez testified that in the summer of 1998, he and thevictim got into a street fight with members of the Simon CityRoyals. During the fight, the victim threw a can and injured aSimon City Royal member. Montanez said neither Bomkamp,Martinez, nor defendant was present during the fight.

Montanez testified that he was at the Bottoms Up Social Clubon December 16, 1998, when the victim walked in with a group ofSimon City Royals. There were also two women in the group. Montanez said the club was located inside Imperial Gangsterterritory and told the victim that the group could not enter. The victim told Montanez that "it was cool" and that he had grownup with the men in the group. Montanez argued with the victimand would not allow the group to come inside. The two women wereallowed inside but only to use the restroom. Montanez saw thevictim get into a white van and drive away with the group.

Bonnie Lopez testified she had known Bomkamp for severalyears and that he was a ranking member of the Simon City Royals.On December 16, 1998, Lopez was at a restaurant where she metBomkamp and DeShon. She left with Bomkamp and DeShon and went toLegion Park. Martinez and defendant joined them there. Lopezdid not recognize others in the park. After one hour, she wentwith Bomkamp, Martinez, DeShon, and defendant to a social clubwhere they met the victim. Lopez and DeShon used the club'srestroom, but the others were not admitted inside. Lopezreturned to the park with Martinez, DeShon, and defendant.

Lopez admitted she was intoxicated at the time and did notremember seeing Bomkamp or the victim at the park. She lied downon a park bench and rested. She heard kicking, someone yellingfor help, and a gunshot. After the gunshot, DeShon told Lopez toget up, and the two women walked back to Martinez's car. Whilewalking, Lopez heard two more shots fired. She and Deshon gotinto the car and were joined by Martinez. He warned the twowomen not to say anything about what happened and dropped themoff near DeShon's house. Lopez denied discussing the events withDeShon. Lopez did not talk to police until February 1999, whenthey came to her house to ask about the victim's murder. Lopezsaid she did not contact police out of fear of what might happento her.

Chicago police officer Joe Rodriguez testified he had workedas a gang crimes specialist for 26 years. Rodriguez was assignedto investigate the victim's murder. He arrested Bomkamp,Martinez, and defendant in connection with the investigation. Rodriguez identified several photographs of tattoos found onBomkamp, Martinez, and defendant while they were in policecustody. Rodriguez testified the tattoos represent the SimonCity Royals street gang. Rodriguez also identified photographsof tattoos found on the victim's abdomen that represent theImperial Gangsters street gang. Rodriguez said the two gangswere fighting in the latter part of 1998.

John Hart testified he was a forensic scientist employed bythe Illinois State Police. Hart analyzed a fingerprint and apalm print lifted from the victim's white van. Hart matched bothprints to print identification cards made by Bomkamp.

The defense called Chicago police officer Dwayne Johnson asa witness. Johnson testified he was assigned to investigate thevictim's death. Johnson found a watch, bracelet, and piece ofpaper near the victim's body. These items were not inventoriedor tested. Nor was testing performed on the jacket the victimwore at the time of the shooting. On December 17, 1998, thevictim's father told Johnson he saw empty fast food cups lyingaround when he arrived at work the morning after his son waskilled. Johnson did not analyze the cups or search the area forfingerprints.

At the conclusion of trial, the jury found defendant guiltyof first degree murder and aggravated battery. Defendant wassentenced to 40 years' imprisonment for first degree murder and aconcurrent 5-year prison term for aggravated battery.

DECISION

I. Jury Instructions

A. IPI 3.15

On appeal, defendant challenges the use of Illinois PatternJury Instruction 3.15 (IPI 3.15) (Illinois Pattern JuryInstructions, Criminal, No. 3.15 (4th ed. 1000)). At the time ofdefendant's trial, IPI 3.15 read:

"When you weigh the identificationtestimony of a witness, you should considerall the facts and circumstances in evidence,including, but not limited to the following:

[1] The opportunity the witness had toview the offender at the time of the offense.

[or]

[2] The witness's degree of attention atthe time of the offense.

[or]

[3] The witness's earlier description ofthe offender.

[or]

[4] The level of certainty shown by thewitness when confronting the defendant.

[or]

[5] The length of time between theoffense and the identificationconfrontation." Illinois Pattern JuryInstructions, Criminal, No. 3.15 (4th ed.2000).

The instruction has since been changed to omit the word "or"between each of the five factors. See Illinois Pattern JuryInstructions, Criminal, No. 3.15 (4th ed. 2000)(Supp. 2003).

Defendant contends the use of the word "or" between thefactors improperly instructed the jury it could consider any ofthe five individual factors rather than all of the factors inevaluating DeShon's identification testimony. The State respondsthat defendant has waived the argument by failing to object tothe instruction at trial or raise the issue in a posttrialmotion. We agree. Defendant's failure to challenge theinstruction at trial or in his posttrial motion forfeited reviewof the issue. See People v. Harvey, 211 Ill. 2d 368, 385, 813N.E.2d 181, 192 (2004) (a defendant's failure to object at trialand to raise the issue in a posttrial motion operates as a waiverof the right to raise the issue as a ground for reversal onreview).

We nonetheless review defendant's argument under the plainerror doctrine. See People v. Herron, 215 Ill. 2d 167, 191, 830N.E.2d 467, 482 (2005). In Herron, the Illinois Supreme Courtfound use of "or" between the factors of IPI 3.15 rendered theinstruction "ambiguous and misleading, regardless of any furthercomment on it by the State in its closing argument."⁽¹⁾ Herron,215 Ill. 2d at 191, 830 N.E.2d at 482. The court said, "givingIPI Criminal No. 3.15 with the 'ors' is indeed plain error." Herron, 215 Ill. 2d at 191, 830 N.E.2d at 482. But that does notmean reversal of defendant's conviction is automatic. SeeHerron, 215 Ill. 2d at 192-93, 830 N.E.2d at 482-83. Defendanthas the burden of showing the "evidence was so closely balancedthat the error alone severely threatened to tip the scales ofjustice against him." Herron, 215 Ill. 2d at 187, 830 N.E.2d at479.

A case relying almost entirely on the self-contradictorytestimony of a drug-using intoxicated witness who contacted thepolice two months after the killing, when she was facing twofelony charges and was a fugitive for two years beforetestifying, hardly can be characterized as an odds-on favoritefor the State. This was a close case. It would not take much totip the scales one way or the other.

Given that setting, we find it reversible error to give thedefective identification instruction, IPI 3.15. See Herron, 215Ill. 2d at 191, 830 N.E.2d at 482. Because the evidence was soclosely balanced, the error "severely threatened to tip thescales of justice against" the defendant. Accordingly, wereverse his conviction and remand the cause for a new trial. SeeHerron, 215 Ill. 2d at 187, 830 N.E.2d at 479.

Because we are remanding for a new trial, we will considerother claims of error that could again surface.

B. The non-IPI instruction on witnesses who are addicts

Defendant contends the trial court erred in refusing to givethe jury a non-IPI addict instruction. The State responds thatthe trial court adequately instructed the jury on DeShon'scredibility.

The decision of whether to give a non-IPI instruction restswithin the sound discretion of the trial court. People v. Simms,192 Ill. 2d 348, 412, 736 N.E.2d 1092, 1133 (2000). An abuse ofdiscretion is committed only where there is no IPI instructionthat applies to the particular subject. Simms, 192 Ill. 2d at412, 736 N.E.2d at 1133. The trial court here instructed thejury as follows:

"Only you are the judges of thebelievability of the witnesses and of theweight to be given the testimony of each ofthem. In considering the testimony of anywitness, you may take into account hisability and opportunity to observe, hismemory, his manner while testifying, anyinterest, bias or prejudice he may have, andthe reasonableness of his testimonyconsidered in the light of all the evidencein the case."

The parties on appeal mistakenly refer to this instructionas IPI 3.12 but the instruction parallels IPI 1.02 (IllinoisPattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000)).

Defendant argues the above instruction alone wasinsufficient to instruct the jury on the reliability of DeShon'stestimony. Defendant contends the jury should have been givenhis tendered federal pattern jury instruction relating to addicttestimony. See Federal Jury Practice & Instruction, Criminal,No. 15.05 (5th ed. 2001). The instruction advises the jury thatthe testimony of a drug or alcohol abuser must be examined andweighed by the jury with greater care than the testimony of awitness who does not abuse drugs or alcohol. See Federal JuryPractice & Instruction, Criminal, No. 15.05 (5th ed. 2001).

While parties are entitled to cross-examine witnesses aboutdrug use, they are not entitled to have the jury instructed onthe unreliability of testimony by drug addicts. People v.Armstrong, 183 Ill. 2d 130, 146, 700 N.E.2d 960, 967 (1998). Noris it reversible error to deny a tendered addict instructionwhere evidence of the addiction is before the jury. People v.Steidl, 142 Ill. 2d 204, 238, 568 N.E.2d 837, 851 (1991). "'Jurors do not leave their common sense behind when they entercourt, and even in the absence of cautionary instructions theywill ordinarily be aware of the factors which make some witnessesunreliable.' " Steidl, 142 Ill. 2d at 238, 568 N.E.2d at 851,quoting People v. Rollins, 108 Ill. App. 3d 480, 488, 438 N.E.2d1322, 1328 (1982).

The jury was informed of DeShon's drug addiction and druguse on the night in question. The defense used this evidence todiscredit DeShon before the jury. An addict instruction wouldhave placed undue emphasis on the evidence. IPI 1.02, on theother hand, adequately informed the jury of the basis on which itshould evaluate DeShon's testimony, including her ability toobserve and her memory. The trial court did not abuse itsdiscretion by refusing to give defendant's addict instruction.

C. IPI 3.17

Defendant contends the trial court erred in refusing toinstruct the jury on the unreliability of accomplice testimony. Specifically, defendant challenges the trial court's refusal touse Illinois Pattern Jury Instruction 3.17 (IPI 3.17), whichreads:

"When a witness says he was involved inthe commission of a crime with the defendant,the testimony of that witness is subject tosuspicion and should be considered by youwith caution. It should be carefullyexamined in light of the other evidence inthe case." Illinois Pattern JuryInstructions, Criminal, No. 3.17 (4th ed.2000).

An accomplice instruction should be given if there isprobable cause to believe the witness was guilty either as aprincipal or under a theory of accountability. People v. Cobb,97 Ill. 2d 465, 476, 455 N.E.2d 31, 35 (1983). An accomplice isone who could himself have been indicted for the offense eitheras a principal or as an accessory. Cobb, 97 Ill. 2d at 476, 455N.E.2d at 35. There was no evidence here that DeShon shot andkilled the victim. Nor was there probable cause to believe sheaided or abetted in the killing. DeShon was merely present atthe scene of the crime--a fact insufficient to show probablecause of guilt under a theory of accountability. See Cooper, 194Ill. 2d at 434, 743 N.E. 2d at 42. The trial court did not abuseits discretion in omitting IPI 3.17.

II. Admission of gang evidence

Defendant contends the introduction of prejudicial gangevidence denied him a fair trial. He contends evidence of astreet fight between the victim and a Simon City Royals gangmember should not have been admitted to show motive because therewas no indication Bomkamp, Martinez, or defendant knew about thefight. Defendant also contends the amount of gang evidenceadmitted at trial was excessive, especially Officer Rodriguez'stestimony about the general organization of gangs, including theImperial Gangsters and Simon City Royals, gang colors, symbols,hand signals, and the tattoos found on Bomkamp, Martinez,defendant, and the victim.

We will reverse a conviction based on the admission of gangevidence only if the trial court abused its discretion inadmitting it. People v. Johnson, 208 Ill. 2d 53, 102, 803 N.E.2d405, 433 (2003). Gang evidence is admissible if it is relevantto an issue in dispute and its probative value is notsubstantially outweighed by its prejudicial effect. Johnson, 208Ill. 2d at 102, 803 N.E.2d at 433. "Evidence of gang affiliationis relevant if it tends to make the existence of a fact ofconsequence to the determination of the action more or lessprobable than it would be without the evidence." Johnson, 208Ill. 2d at 102, 803 N.E.2d at 433.

In this case, the State inundated the jury with evidenceabout street gangs. Joe Rodriguez, whom the prosecution referredto as "Gang Specialist Rodriguez," gave the jury an in-depthlesson on street gangs in Chicago, describing their structure,territories, and alliances. He covered every topic from thecolors gang members wore to the graffiti symbols they use to marktheir territory. He also reviewed 19 photographs introduced bythe prosecution. Each photograph depicted tattoos belonging toBomkamp, Martinez and defendant. Rodriguez testified how eachtattooed symbol represented gang membership.

Officer Ricciardi also testified at length about Chicagostreet gangs, their territories, colors, and allegiances. Another officer testified about defendant's tattoos, several ofwhich included the words "Simon City Royals."

The prosecution's opening statement and closing argumentwere peppered with references to gangs. The assistant State'sattorney referred to defendant's gang, its colors, hand signs,and tattoos. Twice, he argued the victim's participation in anearlier gang fight was defendant's motive to commit murder.

Although this extensive amount of gang evidence was allowed,

there was no evidence the defendant was aware of the so-calledmotivating fact--a street gang fight six months before thekilling. See People v. Smith, 141 Ill. 2d 40, 56-57, 565 N.E.2d900, 906-07 (1990). The effect, if not the purpose, of the gangevidence was to stir the emotions of the jury. Probative valuewas virtually nil. We find the admission of this evidence wasreversible error.

III. Validity of the Indictment

Defendant contends counts I and II of the indictment arevoid because they allege duplicitous mental states. Defendantalso maintains count III of the indictment, which charges felonymurder, is void because it is premised on aggravated battery. Our review is de novo. See People v. Edwards, 337 Ill. App. 3d912, 921, 788 N.E.2d 35, 43 (2002).

Count I of the indictment charges that defendant committedfirst degree murder in that he, without lawful justification,"intentionally or knowingly," shot the victim with a gun inviolation of section 9-1(a)(1) of the Criminal Code of 1961(Code) (720 ILCS 5/9-1(a)(1)(West 1998)). (Emphasis added.) Count II charges that defendant committed first degree murder inthat he, without lawful justification, "shot and killed [thevictim] with a gun knowing that such shooting with a gun createda strong probability of death or great bodily harm to [thevictim]" in violation of section 9-1(a)(2) of the Code (720 ILCS5/9-1(a)(2)(West 1998)). Defendant contends both charges arevoid because they are duplicitous.

Duplicity occurs when two or more distinct offenses arejoined in the same count of an indictment. Edwards, 337 Ill.App. 3d at 921, 788 N.E.2d at 43. An indictment is notduplicitous if it charges a single offense in more than one wayor pleads different acts contributing to the ultimate chargedoffense. Edwards, 337 Ill. Ap. 3d at 921, 788 N.E.2d at 43. Aduplicitous indictment does not set forth the nature and elementsof the charge with certainty, rendering the complaint void. Edwards, 337 Ill. App. 3d at 921, 788 N.E.2d at 43.

Counts I and II of defendant's indictment are notduplicitous. They charge defendant with distinct offenses: first degree murder under section 9-1(a)(1) of the Code and firstdegree murder under section 9-1(a)(2) of the Code. There hasbeen no joining of offenses in separate charges.

The cases relied on by defendant are distinguishable. SeePeople v. Eagle Books, Inc., 151 Ill. 2d 235, 602 N.E.2d 798(1992); People v. Capitol News, Inc., 137 Ill. 2d 162, 560 N.E.2d303 (1990); People v. Heard, 47 Ill. 2d 501, 266 N.E.2d 340(1970). The supreme court in those cases held an indictment thatcharges a defendant in the disjunctive is void if it allegesdisparate and alternative acts, any one of which would constitutethe offense. Eagle Books, 151 Ill. 2d at 244-45, 602 N.E.2d at801-02; Capitol News, 137 Ill. 2d at 174-75, 560 N.E.2d at 308-09; Heard, 47 Ill. 2d at 504, 266 N.E.2d at 342. Counts I and IIof defendant's indictment use the disjunctive to allegedefendant's mental state. They do not allege disparate andalternative acts. Use of the disjunctive in these circumstancesdid not cause uncertainty or conjecture as to the crime defendantwas charged with committing. People v. Viser, 62 Ill. 2d 568,580, 343 N.E.2d 903, 909 (1975) (indictment charging alternativemental states for murder does not implicate duplicity concerns).

Because we find counts I and II were properly charged, weneed not consider defendant's argument with respect to count III--felony murder. See People v. Cardona, 158 Ill. 2d 403, 411, 643N.E.2d 720, 723 (1994) ("[a] general finding of guilty ispresumed to be based on any good count in the indictment to whichthe proof is applicable").

Additionally, because we are reversing defendant'sconviction and remanding this cause for a new trial, we do notdecide defendant's remaining contentions regarding thesufficiency of the State's eyewitness evidence or its allegedfailure to prove his guilt on a theory of accountability. Weremand because we find there is sufficient evidence to support aguilty verdict.

CONCLUSION

For the above-stated reasons, we reverse defendant'sconviction and remand the cause for a new trial.

Reversed and remanded.

BURKE, J., concurs.

JUSTICE CAHILL, dissenting:

I respectfully dissent. The appellate muddle over I.P.I.3.15 was resolved by our supreme court in People v Herron, 215Ill. 2d 167, 830 N.E.2d 467 (2005), as the majority correctlynotes. Giving the instruction in its old form has been held tobe plain error under Herron, reduced to harmless error only ifthe evidence is not closely balanced. The majority then findsthe evidence closely balanced in this case because "thetestimony of a drug-using intoxicated witness" was the principalevidence introduced by the State. In fact, the only evidenceoffered by the defendant was the attempted impeachment of thecredibility of that witness. So it could be argued from thisrecord that the evidence is not closely balanced: the drug-usingintoxicated witness stuck to her story in the face of witheringcross-examination by brilliant defense counsel under the glare ofjuror scrutiny.

The majority criticism of gang crimes evidence is equallyunpersuasive. The evidence offered by the State was within theboundaries announced in People v Johnson, 208 Ill. 2d 53, 803N.E.2d 405 (2003), and in keeping with the right of the State toshow motive for otherwise inexplicable acts. The record revealsa senseless gang rivalry, punctuated by ruthless responses toperceived slights. Of course it is prejudicial. But it is alsoprobative and the jury had a right to hear about this apparentlysenseless assassination in context. To shield a jury from theState's theory of the case hardly creates an even playing fieldfor a criminal trial.

This defendant received a fair trial. I would affirm.

1. We reserved ruling in this case until the supreme courtdecided the jury instruction issue in Herron because weunderstood it would be outcome determinative.