Find Legal Information

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, defendant Ricardo Joya was convictedof first degree murder and attempted first degree murder and sentenced to 30years' imprisonment. On appeal, defendant contends that: (1) the trial courtabused its discretion in allowing the State to introduce evidence of defendant'salleged gang affiliations; (2) the trial court abused its discretion inadmitting defendant's statement where he spoke only Spanish and could not read,speak or write in English; (3) the State failed to prove him guilty beyond areasonable doubt; (4) he was denied his right to a fair trial because he wastried before a judge who he named in a motion for substitution of judge; and (5)he was denied effective assistance of counsel. As we reverse this case based onour resolution of the first issue, we need only further address the second andthird issues.

The following facts are relevant to this appeal. Defendant'sconviction arose from the fatal shooting of Armando Gomez outside of the MiTenampa bar and restaurant at 7100 North Clark Street in Chicago. Prior totrial, defendant filed a motion to suppress and alleged, among other things,that the written statement he signed was in English and that it was not read tohim in Spanish. Defendant further alleged that he signed the statement withoutreading it or having it read to him because he was coerced to do so. Afterhearing testimony from Detective Richard Abreu and defendant, the court foundthat the State met its burden and denied the motion. The motion to suppress washeard by Judge Maki. After this opinion was issued, defendant filed a petitionfor rehearing asking this court to address the issue of his motion forsubstitution of judge. As the motion to suppress was heard and ruled on by ajudge other than the one named in the motion for substitution, we choose not toaddress this issue.

Defendant also filed a motion in limine toprohibit the State from introducing at trial any reference to defendant's gangmembership and to redact mention of gang membership in defendant's statement.The State filed a written response arguing that the gang-related evidence showedthat defendant and his codefendants acted with a common purpose and design. Thetrial court denied defendant's motion.

At trial, Felipe Gomez testified that on July 4, 1993, he,along with his brothers Armando and Jose, and their friend Arturo Ramirez,arrived at the Mi Tenampa restaurant at approximately 8 p.m. after spending theday attending various Mexican rodeos. Felipe Gomez testified that after dinner,between 10 and 10:30 p.m., the group went to the Mi Tenampa Bar and ordereddrinks. At approximately 1:30 a.m., Felipe attempted to leave the bar with hisbrother Armando. Before he left the bar, Felipe saw four people in front of thebar door. Felipe identified one of those persons as defendant. Once outside,Felipe looked for Jose and Arturo in order to leave. Jose Flores asked Felipewhat he was looking at. Felipe replied that he could look wherever he wanted.Flores then asked Felipe if he was looking for trouble, pushed him and thenswung at him with a closed fist. Felipe swung back but did not make contact.Felipe testified that Flores put his hands by his waist and said, "[a]ll ofyou guys are going to die." After hearing this, Felipe and Armando walkedquickly toward the bar door. Defendant, Jose Flores, Andres Rubio and Pedro Joyafollowed them. Felipe tried to pull the door open to ask for help. After he wasunable to open the door, he turned around and saw Pedro point a silver gun athim and fire two shots. Felipe moved quickly and was not hit. Felipe sawdefendant, Flores and Rubio holding and beating Armando. As Armando said"don't hit me," Felipe tried to run to the restaurant door. Rubiocaught Felipe and they struggled. Felipe looked back and saw defendant andFlores on each side of Armando. Armando was on his knees and said "don'tfire" when Pedro fired a shot. Felipe watched as Armando fell to theground. Armando died from gunshot wounds to his chest. Defendant and his brotherPedro fled to Sioux City, Iowa.

Felipe later gave the police a description of defendant,Pedro, Rubio and Flores. During the trial, the State then showed Felipe aphotograph, which Felipe identified as defendant.

Arturo Ramirez testified that he was with Felipe, Armando andJose on July 4, 1993, and that after a day at the rodeo they went to Mi Tenampafor dinner, followed by drinks and dancing at the bar. At approximately 1:30a.m., three men approached Arturo as he was standing on the dance floor. One ofthe men punched Arturo in the nose. Arturo did not retaliate. Arturo identifiedthe one who hit him as defendant. Arturo testified that he had never metdefendant before that evening. Arturo also identified Andres Rubio and JoseFlores as the other two men who approached him that morning.

Arturo testified that the bar owner grabbed defendant so thathe would not hit Arturo again and the three men were escorted out of the bar.While Arturo was inside the bar, he heard three gunshots and hit the floor.Felipe Gomez entered the bar and said that his brother had been shot.

On cross-examination, Arturo was asked if he told theofficers at the scene that there were only two offenders involved, rather thanthree. Arturo replied that he told the officer that three men were involved.

Juan Ramirez, owner of the Mi Tenampa Restaurant and Bar,testified that on July 4, 1993, at approximately 1:30 a.m., he was standing nextto the dance floor when he saw defendant strike Arturo. Ramirez had not metArturo before that evening, but had known defendant as a regular customer of hisrestaurant and bar. After Ramirez asked defendant to leave, a doorman escorteddefendant out of the bar. Three to five minutes after defendant was escortedfrom the bar, Ramirez heard gunshots. Later that night, Ramirez identifieddefendant from a photo array. On July 24, 1993, Ramirez identified defendant ina lineup at the police station. Ramirez also testified that, two or three monthsprior to the shooting, defendant told him that he was a member of the Vikingstreet gang. Ramirez admitted that the first time he told anyone about thisconversation was the morning of the trial.

Officer Anthony Powell testified that he arrived after theshooting and found the victim lying on the ground. Powell called for anambulance and assistance. To Powell's knowledge, no knives were involved in theincident and none were recovered from the scene. Powell further testified thathis report does not specify the number of offenders involved because he did notinquire as to whether there were more than two offenders when he spoke withFelipe Gomez.

Detective Richard Abreu, who speaks Spanish, testified thaton July 6, 1993, he conducted a follow-up investigation of the murder. Abreureturned to the Mi Tenampa bar and spoke with the owner, Juan Ramirez, andshowed him a photo array of eight or nine photographs containing defendant'sphotograph. Ramirez identified defendant from the photo array.

On July 9, 1993, Abreu contacted the Sioux City policedepartment and informed them that there were outstanding warrants for the arrestdefendant and the other offenders. That same day, the Sioux City policedepartment contacted Abreu and informed him that defendant and Pedro were incustody. On July 24, 1993, defendant and Pedro were brought back to Chicago andlater that day, Felipe and Juan Ramirez each identified defendant, Pedro andRubio from a lineup.

Later that evening, Abreu interviewed defendant in Spanishand read his Miranda rights to him in Spanish from a preprinted form. Atapproximately 11:30 p.m., when the assistant State's Attorney arrived, Abreuacted as interpreter. Abreu testified that he had been used as an interpreterfor interviews with hundreds of witnesses and defendants. Abreu adviseddefendant of his rights and translated the assistant State's Attorney'sstatements. The assistant State's Attorney told defendant that he was anattorney, but not his attorney, and asked him how he was treated. Later thatnight, the assistant State's Attorney gave defendant the option of giving ahandwritten statement, a court-reporter statement, or no statement at all.Defendant chose to give a handwritten statement. Defendant, the assistantState's Attorney, and Abreu each signed the page with defendant's Mirandawarnings before defendant's statement was taken.

Abreu testified that whenever the assistant State's Attorneyhad a question, Abreu would translate the question to Spanish for defendant,defendant would respond in Spanish and Abreu would translate defendant'sresponse back to English for the assistant State's Attorney. After the assistantState's Attorney finished writing defendant's statement, he read it aloud andAbreu translated it to Spanish for defendant. Defendant was again read his Mirandarights, which Abreu translated into Spanish. After making two corrections to thestatement, defendant initialed each page.

On cross-examination, Abreu testified that he was not trainedin the different dialects of Spanish, but that at no time were there anycommunication problems between him and defendant.

Assistant State's Attorney Joseph Magats testified that onJuly 24, 1993, he was working in the felony review unit and intervieweddefendant. Magats spoke to defendant in English with Abreu acting asinterpreter. After he wrote defendant's statement in English, he read it andAbreu translated what he read into Spanish. Magats testified that defendant waslooking at the statement while Magats read it. Defendant was asked if he wantedto make any corrections or changes and then defendant signed each of the pages.

At trial, Abreu testified to defendant's statement before thejury. In the statement, defendant admitted that he, his brother Pedro, andfriends Jose Flores and Andres Rubio are members of the Ashland Vikings streetgang. Defendant further admitted that he beat up a customer at the bar on July4, 1993. After he was thrown out of the bar for the fight, defendant stated thathe wanted to beat up the person again and decided to wait for him outside thebar. Defendant stated that he and Flores walked up to the two men as they walkedout of the bar and Flores told them that he was going to kill them. According todefendant's statement, he had seen Pedro with a silver .38-caliber handgun.Defendant stated that he turned to his brother Pedro and asked him if he stillhad the gun. Defendant then told Pedro to get the gun from the car. Defendantfurther stated that he did not see any weapons in the hands of the two men. Asthe two men began to walk away, defendant, Flores and Rubio began to followthem. Pedro came from across the street with the gun in his hand and defendantstated that he saw Pedro fire the gun four times at the two men. After Pedrofired the gun, he ran down Clark Street and defendant went home.

Defendant further admitted that he and Pedro decided to go toIowa because they knew the police were looking for them. Defendant then saidthat he was not threatened or promised anything in return for his statement andthat he had been treated well by the police and the assistant State's Attorney.Defendant also said that Abreu read all three pages of his statement aloud inSpanish and that he could make corrections to the statement.

Subsequently, the jury found defendant guilty of first degreemurder and attempted first degree murder. Defendant's timely appeal followed.

Defendant contends that the trial court abused its discretionin allowing the jury to hear testimony regarding defendant's alleged gangaffiliation.

Evidence is admissible if it is relevant to an issue indispute and its probative value is not substantially outweighed by itsprejudicial effect. People v. Gonzalez, 142 Ill. 2d 481, 487, 568 N.E.2d864 (1991). Although gangs are regarded with much disfavor, it is generally heldthat evidence indicating the defendant was a gang member or was involved ingang-related activity will be admitted if it provides a motive for an otherwiseinexplicable act. People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900(1990); People v. Resendez, 273 Ill. App. 3d 751, 758, 652 N.E.2d 1357(1995). However, such evidence is admissible only where there is sufficientproof that such membership or gang activity is related to the crime charged. Peoplev. Strain, No. 88007 (November 16, 2000). Evidence of gang membership may beexcluded if its probative value is outweighed by its prejudicial effect. Peoplev. Maldonado, 240 Ill. App. 3d 470, 475, 608 N.E.2d 499 (1992). A trialcourt's decision to admit gang evidence will not be overturned on appeal absenta clear abuse of discretion. Gonzalez, 142 Ill. 2d at 489-90 (1991); Peoplev. Colon, 162 Ill. 2d 23, 30, 642 N.E.2d 118 (1994).

Defendant asserts that the State failed to link the statementthat he was a "Viking" to any event that occurred the night of theshooting. Defendant further argues that even if he admitted membership in agang, this evidence does not establish a motive for why his brother shot thevictim. The State responds that evidence of defendant's gang membership wasrelevant to show that defendant and his fellow gang members shared a commonpurpose or design and relies on People v. Jones, 259 Ill. App. 3d 905,632 N.E.2d 23 (1994), to support its contention.

In Jones, defendants were convicted of first degreemurder and two counts of attempted first degree murder. Defendants shot threevictims at a motorcycle club and there was witness testimony at trial thatdefendants were not motorcycle club members but, instead, were members of theVice Lords street gang. There was also witness testimony that one of thedefendants had a prior altercation with one of the victims before the shooting.On appeal, defendants argued that the trial court improperly admitted evidenceof their gang affiliation because there was no indication that such gangaffiliation was the reason for the shooting. Jones, 259 Ill. App. 3d at910. In fact, defendants argued that the shooting could be explained solely byreference to the prior altercation between one of the defendants and one of thevictims; therefore the gang evidence was irrelevant. This court held thatdefendants' gang affiliation was relevant to explain defendants' conduct. Jones,259 Ill. App. 3d at 911. This court specifically held: "Jones' actions wereinterwoven with those of Lewis. The fact that Lewis joined Jones in shootingmembers of the motorcycle club can be explained by the fact that Jones and Lewisbelong to the same gang." Jones, 259 Ill. App. 3d at 912.

We find Jones to be distinguishable on its facts. In Jones,several witnesses testified that the defendants and others were wearing thebills of their hats to the left, which is a commonly known sign of membership inthe Vice Lords street gang. Jones, 259 Ill. App. 3d at 907. Witnessesalso stated that they recognized several members of the Vice Lords in themotorcycle club that night. Most importantly, as one of the defendants ran backinto the club with his gun, a witness heard someone yell, "All Vice Lordsleave." Jones, 259 Ill. App. 3d at 908. After that statement, thewitnesses observed the people wearing their hats to the left running out of theclub as the gunshots began.

In our case, the only evidence that there was any connectionbetween defendant's gang membership and the shooting of Armando was JuanRamirez' testimony that, two or three months prior to the shooting, defendanttold him that he was a member of the Viking street gang. The evidence in thiscase showed that the incident was a bar fight and there was absolutely notestimony that anyone mentioned gang involvement in the shooting either prior toor after the shooting. As to the State's argument that the evidence of gangaffiliation established a common purpose or design between defendant and hisfellow gang members, we note that the shooter, Pedro, was defendant's brother.The familial relationship between the two is a more reasonable basis upon whichto find a common purpose or design. Further, defendant told Pedro to get the gunimmediately before Pedro shot the victim. This is overwhelming direct evidencethat defendant and Pedro acted with a common purpose. Consequently, anyinference that their mutual gang membership supported the State's theory thatthey acted in concert was cumulative and unnecessary. We find that the evidenceof gang membership in this case was not related to the crime charged and that ifit had any probative value at all, such value was greatly outweighed by itsprejudicial effect. We find that the trial court abused its discretion inadmitting the evidence of defendant's gang membership and, for this reason, wereverse defendant's conviction and remand this matter for a new trial.

Defendant also contends that the trial court erred inadmitting defendant's statement into evidence. As this issue will likely ariseduring the retrial, we will address it. Defendant asserts that the statementwritten by the assistant State's Attorney in English should not have beenintroduced into evidence where defendant had no opportunity to select aninterpreter or for the court to appoint an interpreter for him. Defendant arguesthat Detective Abreu did not act as a standard interpreter because he did notwrite down the questions in Spanish, he did not write down defendant's answers,and he failed to write out defendant's alleged statement in Spanish fordefendant to read and then sign. The State responds that defendant has waivedconsideration of the issue upon appeal by failing to object to the admission ofthe statement at trial and failing to include it in his posttrial motion.

Both an objection at trial and a written posttrial motionraising the issue are necessary to preserve an issue for review and failure todo both results in a waiver of the issue on appeal. People v. Enoch, 122Ill. 2d 176, 186, 522 N.E.2d 1124 (1988); People v. Hardaway, 307 Ill.App. 3d 592, 607, 718 N.E.2d 682 (1999). A review of the record establishes thatdefendant did not object to the admission of the statement at trial.Furthermore, defendant's posttrial motion includes an entirely differentargument advocating the suppression of defendant's statement. Defendant'sposttrial motion argues that "the court erred in allowing the prosecutor tocircumvent the defendant's right to remain silent by arguing that the statementhandwritten by another prosecutor was '...through his own words....'" Wefurther note that defendant has not argued that defense counsel renderedineffective assistance by failing to object to the introduction of the statementduring trial. As defendant has raised this issue for the first time on appeal,we hold that the issue of the admissibility of defendant's statement is waived.

Even if we were to consider defendant's argument, it would berejected. In People v. Grisset, 288 Ill. App. 3d 620, 681 N.E.2d 1010(1997), the defendant also attacked the admissibility of his confession basedupon grounds of hearsay. This court held, "[t]he hearsay exception for acriminal defendant's voluntary confession is firmly rooted in the law andcomports with the substance of the constitutional protection of theconfrontation clause of the sixth amendment. Grisset, 288 Ill. App. 3d at630. Where a defendant challenges the admissibility of his confession through amotion to suppress, the State has the burden of proving that the confession wasvoluntary by a preponderance of the evidence. 725 ILCS 5/114-11(d) (West 1998); Inre G.O., 191 Ill. 2d 37, 49, 727 N.E.2d 1003 (2000). This concept ofvoluntariness includes proof that the defendant made a knowing and intelligentwaiver of his privilege against self-incrimination and his right to counsel. Peoplev. Reid, 136 Ill. 2d 27, 54, 554 N.E.2d 174 (1990). The determination is tobe made based upon the totality of the circumstances, rather than any onecontrolling factor. Reid, 136 Ill. 2d at 54-55. Among the factors to beconsidered in determining whether a confession or waiver of rights is voluntaryare the defendant's mental ability, familiarity with the English language, age,education and experience. People v. Bernasco, 138 Ill. 2d 49, 365, 562N.E.2d 958 (1990). A reviewing court will give great deference to a trialcourt's findings of fact, reversing them only when they are against the manifestweight of the evidence; however, we review the issue of voluntariness of theconfession de novo. In re G.O., 191 Ill. 2d at 49.

In the instant case, the translator, Detective Abreu,testified to, defendant's statement. Detective Abreu is a native Spanish speakerwith 24 years of experience translating for various divisions of the Chicagopolice department and the federal Drug Enforcement Agency. Abreu wascross-examined fully regarding his translation of defendant's statement and thesubstance of defendant's statement. Abreu also specifically discussed theprocess of obtaining the statement from defendant, which included givingdefendant his Miranda rights from a preprinted form written in Spanishwhich defendant signed. Abreu and the assistant State's Attorney both testifiedthat as defendant gave his statement in Spanish, Abreu translated it to Englishand the assistant State's Attorney wrote the statement in English. Once thestatement was written, Abreu read the entire statement "word for word"to defendant in Spanish and only then did defendant sign it. Defendant testifiedat the motion to suppress that Abreu read the written statement to him inSpanish but that it contained things he had never said.

In People v. Villagomez, 313 Ill. App. 3d 799, 730N.E.2d 1173 (2000), this court held that, under an identical fact pattern, thehandwritten statement in English of a defendant who spoke only Spanish wasadmissible at trial where the person who translated the defendant's statement tothe assistant State's Attorney testified to the taking of the statement. Villagomez,313 Ill. App. 3d at 808-09. In that case, the assistant State's Attorneypublished the written statement to the jury. In the instant case, thetranslator, Detective Abreu, published it. As a practical matter, the method ofpublication is better in this case than in Villagomez.

The holding in Villagomez followed substantialprecedent. In People v. Gukouski, 250 Ill. 231, 95 N.E. 153 (1911), oursupreme court addressed a fact pattern almost identical to ours. There, threesuspects were arrested for murder and were interviewed. Two of the suspectsspoke only Polish. Two Polish-speaking police officers interviewed the suspects.One of the police officers testified that the interviews were conducted "inPolish, and that he translated their statements into English and wrote themdown. After completing the statements he translated them, sentence by sentence,into the Polish language to the parties, and they were then signed by theparties, respectively." Gukouski, 250 Ill. at 234-35. The defendantstestified that, while they voluntarily spoke to the police, the statements werenot taken down accurately or that they did not know the statements containedcertain matters. The supreme court held, "[t]he circumstances under whichthey were made and signed entitled them to be admitted in evidence. The value ofconfessions as evidence depends upon the circumstances under which they weremade. The jury had all the circumstances before them, and the weight and creditto be given to the oral confession of Nogawischi and the written confessions orstatements by Krolikowski and Gukouski were matters for them to determine."Gukouski, 250 Ill. at 235.

Similarly, in People v. Teran-Cruz, 272 Ill. App. 3d573, 650 N.E.2d 663 (1995), this court faced a fact pattern almost identical tothat before us and that in Villagomez. There, the trial court hadsuppressed the Spanish-speaking defendant's confession. The defendant hadtestified that he thought the assistant State's Attorney was acting as hisattorney. On appeal, this court reviewed the pertinent case law recited aboveand applied it to the facts. This court reversed the suppression of thedefendant's confession, including a handwritten statement in English which wastaken by an assistant State's Attorney who spoke no Spanish. Teran-Cruz,272 Ill. App. 3d at 579-80.

Whenever a witness' or a defendant's statements are not inEnglish, translation is a necessity to make those statements intelligible to thecourt and the jury. This is why the statements are translated to English in thefirst place. To say that the written statement must be taken in the defendant'sown language and then translated to the court and jury would not make it anymore accurate. Testimony regarding a confession by a non-English-speakingdefendant is admissible because it satisfies the most important requirements ofother exceptions to the hearsay rule: (1) it has circumstantial guarantees oftrustworthiness; (2) it concerns admissions of a party; and (3) it consists ofadmissions against the declarant's penal interest. Of course, the fact that aninterpreter is used and, significantly, the fact that the written statement isnot intelligible to the defendant are bases upon which to attack the statement'saccuracy. However, if the trial court finds the statement to have beenvoluntarily made, such statements are admissible. Gukuoski, 250 Ill. at235.

Defendant further contends that he was not proved guiltybeyond a reasonable doubt. The State responds that defendant was proved guiltybeyond a reasonable doubt based on a theory of accountability. In reviewing thesufficiency of the evidence, a reviewing court must determine "whether,after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt." People v. Campbell, 146 Ill. 2d 363,374, 586 N.E.2d 1261 (1992). Whether the requisite elements have been proven isa question for the trier of fact, and its findings will not be disturbed onreview unless the evidence is contrary to the verdict or so unreasonable,improbable, or unsatisfactory as to create a reasonable doubt of guilt. Peoplev. Howry, 178 Ill. 2d 1, 38, 687 N.E.2d 836 (1998).

Defendant first asserts that the State's eyewitness, FelipeGomez, was impeached by Corey Ramirez. However, the record shows that CoreyRamirez never testified at defendant's trial. Ramirez gave testimony as awitness in the separate bench trial of Jose Flores. Matters not properly part ofthe record and not considered by the trial court will not be considered onreview even though included in the record. People v. Sheridan, 51 Ill.App. 3d 963, 965, 367 N.E.2d 422 (1977); Avery v. Sabbia, 301 Ill. App.3d 839, 843-44, 704 N.E.2d 750 (1998). As a defendant cannot base an appeal uponevidence which was never presented to the trial court in the context of his case(People v. Negron, 297 Ill. App. 3d 519, 697 N.E.2d 329 (1998)), CoreyRamirez's testimony must be disregarded. Defendant next claims that Felipe was"confused, inconsistent, impeached [and] contradicted" and thatFelipe's testimony fails to corroborate defendant's confession that this was agang-related beating. As it is the function of the trier of fact to resolve anyconflicts in the evidence and to assess the credibility of the witnesses (Peoplev. Lovelady, 221 Ill. App. 3d 829, 841, 582 N.E.2d 1217 (1991)), we will notdisturb the trier of fact's assessment of Felipe's credibility on review.

Defendant further argues that defendant's statement isuncorroborated by the State's evidence. To prove a defendant's guilt based onaccountability, the State must show: (1) he aided, abetted, agreed, or attemptedto aid another in the planning or commission of the offense; (2) he participatedbefore or during the commission of the offense; and (3) he had the intent topromote or facilitate the commission of the offense. People v. Burrage,269 Ill. App. 3d 67, 645 N.E.2d 455 (1994); 720 ILCS 5/5-2(c) (West 1992)."Evidence that the defendant voluntarily attached himself to a group benton illegal acts with knowledge of its design supports an inference that heshared the common purpose and will sustain his conviction for an offensecommitted by another." People v. J.H., 136 Ill. 2d 1, 17, 554 N.E.2d961 (1990). Although a defendant's mere presence at the scene of the crime,coupled with flight from the scene, is insufficient to prove accountability (Peoplev. Reid, 136 Ill. 2d 27, 61, 554 N.E.2d 174 (1990)), in determining guilt,the trier of fact may consider the defendant's presence during the commission ofthe crime, a continued close association with other offenders after thecommission of the crime, the defendant's failure to report the incident, and thedefendant's flight from the scene. People v. Johnston, 267 Ill. App. 3d526, 534, 641 N.E.2d 898 (1994).

In the present case, each of the four factors supportdefendant's conviction on an accountability theory. It is undisputed thatdefendant was present at the scene of the crime, did not oppose the actions ofPedro and did not attempt to intervene to prevent the victim from being shot.Indeed, in defendant's statement, he admitted that after he hit Arturo in thebar, he wanted to beat him up again and waited outside the bar. Pedro Joya, JoseFlores and Andres Rubio waited with him. When Arturo's friends left the bar,Flores told them they were going to kill them. Defendant also admitted that hetold Pedro to get the gun from his car. Defendant, Flores and Rubio thenfollowed the two men as Pedro retrieved the gun. After the shooting, defendantmaintained close affiliation with Pedro by fleeing the scene and then fleeing toIowa. Furthermore, defendant made no attempt to contact the police about thecrime in question. Felipe Gomez' testimony differed from portions of defendant'sconfession only in that it showed that defendant took an even more active partin the shooting of the victim. Therefore, we find that all the evidence, as setforth above, provided a sufficient basis for the jury to conclude beyond areasonable doubt that defendant was guilty of first degree and attempted murderbased on an accountability theory. Accordingly, we find that principles ofdouble jeopardy do not preclude defendant's retrial. People v. Shief, 312Ill. App. 3d 673, 680, 728 N.E.2d 638 (2000).

Based on the foregoing reasons, the judgment of the circuitcourt of Cook County is reversed and remanded for further proceedings notinconsistent with this opinion.

Reversed and remanded.

GREIMAN and THEIS, JJ., concur.