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SECOND DIVISION

DECEMBER 26, 2000

No. 1-98-1007

JUSTICE COUSINS delivered the opinion of the court:

Defendant, Johnny Plummer, was indicted for first degreemurder and attempted armed robbery pursuant to sections 9-1, 8-4,and 18-2 of the Criminal Code of 1961 (720 ILCS 5/9-1, 8-4, 18-2(West 1992)). He was sentenced to natural life imprisonment anda term of five years' imprisonment, both to run concurrently withhis prior natural life sentence. On appeal, defendant contendsthat: (1) the State did not meet its burden of proving himguilty beyond a reasonable doubt; (2) the judge abused hisdiscretion and deprived him of a fair trial when the prosecutionpresented details of his other crimes; and (3) the trial courterred by precluding the cross-examination of a key prosecutionwitness.

We affirm.

BACKGROUND

On June 17, 1991, at about 2 a.m., Mrs. Jeanette Pole andMrs. Perrijean East were driving southbound on Halsted Street inChicago, Illinois. While sitting at the stoplight on the cornerof 63rd and Halsted, Mrs. Pole heard a male voice coming from theright passenger side of the vehicle. However, Mrs. Pole couldnot understand exactly what was being said. When Mrs. Polelooked toward the window, she saw a gun held by a black hand, theman's right hand, sticking through the window. She could not seethe man's shoulders or head as he pointed the gun inside the car. Mrs. Pole attempted to raise the window and drive away. However, her 54-year-old passenger, Mrs. East, was shot once inthe head. Mrs. Pole immediately drove her to the emergency roomof St. Bernard Hospital. Mrs. Pole spoke to a police officer,and after her car was driven by the police to the emergency roomentrance, she was not allowed to go near her car. The vehiclewas parked in front of the hospital where it was searched andtested for fingerprints. The police were able to retrieve onefingerprint and one palm print from the top of the car on thepassenger side of Mrs. Pole's car.

The State filed a pretrial motion to introduce evidence ofdefendant's other crimes and arrests. The State's motionarticulated that the other crimes evidence would be used for thefollowing purposes: (1) to establish the identity of thedefendant as the perpetrator of Mrs. East's murder; (2) toestablish the reliability of the State's key witness' handwrittenstatement; (3) to establish that defendant possessed a gun; and(4) to establish that defendant frequented the area of themurder. The trial judge allowed the testimony at trial, forlimited purposes.

At trial, one of the prosecution's key witnesses was EricaFrazier. She was serving a three-year sentence for forgery inWisconsin at the time of her testimony. Frazier testified thaton June 16, 1991, at about 9 p.m., she saw defendant and MalcolmSharkey on the corner of 59th and Union sitting on the porch inthe middle of the block where she had seen them on numerousoccasions. On that night, they were selling drugs and she saw agun hidden in the grass, a gun that she had seen "all the time."

Frazier testified that, at about 9:40 p.m., she overheard aconversation between defendant and Sharkey. Defendant statedthat he hoped somebody was "walking along" so he could stick himup for his gold herringbone chain. She also overheard defendantmention that he hoped a rival gang member would stop at astoplight so that he could rob him of his chain. She thentestified that the men escorted her towards home, goingsouthbound on Halsted until she got to 61st Street. The nextmorning, June 17, 1991, Sharkey stopped by Frazier's home,briefly.

Frazier testified that, two days after the shooting,defendant and Sharkey were at her home. Frazier jokingly tolddefendant that she knew he was the one who committed the murderand that the victim was her cousin. Frazier also testified thatafter defendant heard this, he apologized to her. Fraziernoticed that he was unusually quiet after that. Eventually, shetold him that she was only kidding and that the victim was nother cousin. She observed that defendant seemed relieved.

During trial, an in camera examination of Frazier was heardoutside the presence of the jury regarding her suicide attemptand subsequent five-day hospitalization for depression in 1990. She testified that after her hospitalization she was notmedicated for her depression. She also testified that she didnot have any problems with her memory and did not suffer fromhallucinations or an inability to distinguish fantasy fromreality. The defense requested to cross-examine Ms. Frazier inthe presence of the jury. The trial court denied defendant'srequest. The court explained that the defense failed todemonstrate the relevance of such inquiries.

The victim's granddaughter, Ms. Mills, testified at trial asto her conversation with Ms. Frazier in April of 1992 at Mills'home. By chance, Mills and Frazier lived in the same apartmentcomplex and became friends. Mills testified that while Frazierwas visiting Mills in April of 1992, the murder of Mrs. East cameup. In their conversation, they concluded that Ms. Mills'grandmother was the victim of the shooting that Ms. Frazierclaimed to have details about. Defendant was not arrested untilalmost 10 months after the murder.

During the State's case in chief, the medical examinertestified that there was no partially burned gunpowder residue onMrs. East's skin surface or hair that would indicate that theweapon was held at close range at the time of firing. Heexplained that if a handgun was shot at the distance of 18 to 24inches from the surface of the body or if the bullet passedthrough a door or glass prior to striking the victim, there wouldbe no evidence of such "tatooing or stippling."

As an expert in the field of fingerprint identification,Officer Brewer of the Chicago police department testified thatthe latent fingerprint and palm print, which were obtained fromthe exterior passenger side of the car, matched those of thedefendant's left hand. It was elicited that Mrs. Pole had ownedher car for approximately five years and was in the routine ofwashing it once a month. She stated that she did not frequentthe area of the murder and probably had not been there in about ayear. In June 1991, she had been parking her car on the street.

Frank Wachowski, who at the time of the shooting recordeddata regarding the weather reporting station at Midway Airport ona volunteer basis, testified that in June 1991, there was only atrace amount of rainfall.

To establish defendant's identification, the State presentedevidence of defendant's other crimes and arrests. Officer Dixonwas called by the State to testify regarding a March 1991 arrestof defendant. The trial court admonished the jury, and the Stateconducted the following direct examination, in pertinent part, ofOfficer Dixon:

"THE COURT: Ladies and gentlemen, the evidence you'reabout to receive is that the Defendant has been involved inoffenses other than those charged in the indictment. Thisevidence is to be received on the issues of the Defendant'sidentification and may be considered by you only for thatlimited purpose.

* * *

Q. Now officer, I would like to direct your attentionback to March the 16th of 1991, were you working on thatparticular date?

A. Yes, I was.

* * *

Q. Now, Officer, I'd like to direct your attentionspecifically to approximately 10:40 on the evening of March16th, 1991, can you tell us where you were at that time?

A. I was in the vicinity of 59th and Emerald.

Q. Can you tell us, Officer, why you were at thatlocation?

A. Because at that time there was an area of highnarcotics traffic.

* * *

Q. Can you tell me as you were driving through thatalley did you observe anything?

A. Yes, I did.

Q. Can you tell me what it is you observed?

A. I observed two subjects standing at the corner ofthe east alley of Emerald, it's a T alley, east corner ofEmerald, make a hand to hand exchange.

Q. Officer, based on your experience as a ChicagoPolice Officer can you tell us what you believe was takingplace when you saw this hand to hand exchange?

A. I believe it to be an illegal narcotics transaction.

* * *

Q. Can you tell me when you made this observation whathappened next?

A. At that time these two subjects looked in thedirection of my squad car and both fled on foot.

Q. Did you pursue them?

A. Yes, I did.

* * *

Q. Tell me where the pursuit took you? [sic]

A. It took me through the alley, through the southalley of 59th, west to Emerald, at that time when thesubjects split up the one subject turned north on Emeraldand ran north across 59th street with me in the squad car inpursuit of him. At that time as we hit the corner of 59thand Emerald, this Defendant ran into the Maxwell Restaurant,5859 South Emerald.

Q. Roughly in the intersection of 59th and Emerald?

A. Yes.

Q. Did you pull your squad up to the MaxwellRestaurant?

A. Yes.

Q. Tell me what happened once your squad car got rightup to the entrance of Maxwell Street entrance? [sic]

A. As I stopped the car at the restaurant this subjectran into the door of the restaurant, at which time he threwdown a clear plastic bag, as I exited the car and ran in therestaurant behind him I retrieved the bag.

Q. The person that you observed making this hand tohand transaction that you chased and then observed drop aclear plastic bag do you see that person in the courtroomtoday?

A. Yes.

Q. Can you identify him by something he's wearing todayin Court?

A. Yes, the young man with the cream colored shirt andglasses.

Mr. Dillon: May the record reflect the in-Courtidentification of the Defendant Johnny Plummer.

* * *

Q. Could you tell me what was inside that plastic bagthat was dropped to the ground?

A. Six smaller clear blue plastic bags containing whiterocky substance which I believed to be cocaine.

Q. At that time did you place the Defendant underarrest?

A. Yes, I did.

Q. Could you tell me as you searched him what youfound?

A. I found $297.00 in currency on his person.

Q. Was he placed under arrest?

A. Yes, he was.

* * *

Q. Specifically, you learned his name was JohnnyPlummer, is that correct?

A. Correct.

Q. Did you learn from him whether or not he had anickname?

A. Yes, I did.

Q. Can you tell me what his nickname was as told by himto you?

A. Smokey.

Q. Did you also question the Defendant as to whether ornot he belonged to a gang?

A. Yes, I did.

Q. Can you tell me what he indicated to you?

A. He said he was a GD.

Q. And, Officer, based on your experience as a policeofficer in the 7th district what did you understand that tomean when he said he was a GD?

A. Gangster Disciple.

Q. And that's a street gang that's common in the 7thdistrict at that time, March of 1991?

A. Yes.

Q. Officer, I'd like to show you what I previouslymarked as People's Exhibit twenty-five for identification,does this appear to be an area depicted on this of 59th andEmerald where these events took place?"

The State's next "other crimes" witness was Officer Clifton. The following direct examination, in pertinent part, wasconducted of Officer Clifton:

"Q. Back in February of 1991 how long had you beenassigned to the Tactical Division?

A. Three years.

Q. In the Tactical Division, do you wear uniforms suchas you're wearing today or do you wear civilian clothes?

A. Mostly we wear civilian dress. There are occasionswhere we do wear uniforms.

Q. On February the 18th of 1991 at approximately 10:30in the evening do you remember where you were at that time?

A. Yes, I do.

Q. Where were you?

A. I was on patrol in the 7th District, approximatelyaround 59th and Halsted.

* * *

Q. Around the area of 59th and Union did you receiveany information or complaint?

A. We received a complaint from a citizen as to someindividuals at 59th and Peoria?

Q. Peoria?

A. I'm sorry, 59th and Union, excuse me.

* * *

Q. As you walked northbound on Union towards 59thStreet, did you see anything?

A. Yes, we seen five individuals standing at 5933 SouthUnion.

Q. As you were approaching them did you notice anythingunusual about the five individuals that you saw?

A. One of the individuals as we were approaching thefive had at [sic] chrome revolver in his hand, he was thesecond individual that was closet [sic] to us as we wereapproaching.

Q. Now, again, you're approaching and wearing civilianclothes, is that correct?

A. Yes.

Q. What did you do when you saw one of the people had agun?

A. Myself and my partner announced our office, after weannounced our office the five individuals then broke andran.

* * *

Q. What happened as you followed those threeindividuals?

A. We also noticed that another individual had a weaponin his hand.

Q. Now, the person, the second person with the gun inhis hand, you later learned that person's name?

A. That's correct.

Q. What did you learn that person's name to be?

A. During the arrest we learned his name was DwightSmith.

Q. The person that gave you the name of Dwight Smith doyou see him in the courtroom today?

A. Yes, I do.

* * *

Q. As you chased the person that gave you the nameSmith and the other person with a revolver and a thirdperson, what happened next?

A. That one individual that was the last person to runinto the house, he had dropped a package, I was able to grabhim by the collar, my partner was able to retrieve what hehad dropped to the ground, we then followed the otherindividuals, two individuals into the house where they hadlocated themselves on the second floor in the house.

* * *

Q. Now, the Defendant who is sitting in the courtroomtoday, who gave you the name of Dwight Smith, did you learnhis real name?

A. Yes.

Q. What did you learn it to be?

A. Johnny Plummer.

Q. When you saw him in the bedroom was there anyobjects near him?

A. Yes, there was.

Q. What was near him?

A. On the floor next to his foot was a plastic bag withthe weapon that I saw was in his hand as he was running.

Q. During booking procedures did you ask Mr. Plummer--did you ask him his name?

A. Yes, we did.

Q. What name did he give?

A. He gave me Dwight Smith.

Q. Did you ask him his address?

A. Yes, I did.

Q. What address did he give you?

A. He gave me an address of 5231 South Marshfield.

Q. Did you later learn his real name to be JohnnyPlummer, is that correct?

A. That's correct.

Q. And also during the time you were booking him didyou ask him if he was affiliated with any street gangs?

A. Yes, I did.

Q. What did he tell you?

A. Gangster Disciple.

Q. Now, the area of 52nd and Marshfield, can you tellus approximately how far that is away from 73rd and Green?

A. Approximately three and a half miles."

At the end of the State's case in chief, the defendant madea motion for directed finding. The motion was denied. Thedefense then presented its evidence.

Detective Graf of the Chicago police department was calledby the defense. He testified that he spoke with Ms. Frazier viatelephone and in person in April of 1992 concerning her knowledgeof the murder. He stated that Ms. Frazier informed him of aconversation she had with Plummer the night before the murder ashe walked her southbound on Halsted. She did not tell him abouta conversation with defendant while waiting for him and Sharkeyat 59th and Union. Detective Graf also stated that Frazier didnot mention to him the conversation that she alleges took placebetween her and defendant after the shooting.

The defense rested. Defendant was found guilty of firstdegree murder and attempted armed robbery. Defendant made amotion for a new trial. The motion was denied.

ANALYSIS I

Defendant initially argues that the fingerprint evidence andthe testimony of Ms. Frazier were insufficient to establish hisguilt beyond a reasonable doubt. The State responds that,considering the logical time that the defendant's prints couldhave been placed on the car and witnesses' testimony, anyreasonable trier of fact could have found defendant guilty beyonda reasonable doubt.

It is well established in Illinois that "it is the provinceof the jury to resolve conflicts in the evidence, to pass uponthe credibility of the witnesses, and to decide what weightshould be given to the witnesses' testimony." Maple v.Gustafson, 151 Ill. 2d 445, 452, 603 N.E.2d 508 (1992). Adetermination by the jury will not be set aside unless theevidence is so unreasonable, improbable or unsatisfactory as tojustify a reasonable doubt as to the defendant's guilt. Peoplev. Jayne, 52 Ill. App. 3d 990, 1016, 368 N.E.2d 422 (1977). Onreview, this court must determine whether, after viewing theevidence in the light most favorable to the prosecution, anyrational trier of fact could have found all the essentialelements of the offense beyond a reasonable doubt. People v.Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267 (1985).

In the instant case, although it could not be determinedwhen the palm print and fingerprint were placed on the vehicle, aforensic scientist matched the fingerprints found with those ofthe defendant. Mrs. Pole testified that she had not driven hercar to the area of the shooting in over a year. She alsotestified that she customarily washed her car about once a month. The defense presented alternate methods by which Plummer'sfingerprints could have been placed on the car. The defense alsocalled Ms. Frazier's credibility into question. However, areview of the record indicates that a reasonable jury could havefound the evidence sufficient to establish defendant's guiltbeyond a reasonable doubt.

II

Defendant's next major contention is that the trial courtabused its discretion and denied defendant a fair trial bypermitting other crimes evidence to be admitted. He contendsthat he was denied a fair trial when detailed facts of thosearrests were elicited. The State responds that: (1) the courtproperly allowed such evidence for identification of the shooter;(2) the court properly allowed such evidence for placingdefendant in the vicinity of the murder; and (3) the jury wasinstructed to use that evidence for those limited purposes.

While the law distrusts the inference that because a personhas committed other crimes he is more likely to have committedthe crime charged, evidence of other crimes is admissible if itis relevant for any purpose other than to show the defendant'scharacter or propensity to commit crime. People v. Kimbrough,138 Ill. App. 3d 481, 484, 485 N.E.2d 1292 (1985). Evidence ofthe defendant's commission of other crimes is admissible to showmodus operandi, intent, identity, motive, or absence of mistake. People v. Kliner, 185 Ill. 2d 81, 146, 705 N.E.2d 850, 883(1998).

The admissibility of other crimes evidence rests within thesound discretion of the trial court. People v. Heard, 187 Ill.2d 36, 58, 718 N.E.2d 58 (1999). A trial judge should considerwhether the evidence is actually necessary in light of theavailability of other methods of establishing the facts at issue. People v. Thigpen, 306 Ill. App. 3d 29, 36, 713 N.E.2d 633(1999). In considering the admissibility of other crimesevidence, the trial judge must weigh its probative value againstits prejudicial effect on the defendant and may exclude theevidence if its prejudicial effect substantially outweighs itsprobative value. Kliner, 185 Ill. 2d at 146. The trial court'sdecision will not be overturned absent a clear abuse ofdiscretion. Heard, 187 Ill. 2d at 58.

Defendant argues that the evidence of other crimes and hisgang affiliation lacked probative value and were used only toprejudice the jury. The State contends that defendant's gangaffiliation "was introduced to show that defendant would be inthat location, because the Gangster Disciples territory includedthe site of the murder." However, time and place proximity,without more, is an insufficient basis for admission of othercrimes evidence. People v. Charles, 238 Ill. App. 3d 752, 762,606 N.E.2d 603 (1992).

The State argues that the gang affiliation is relevant inthat the location of the crime was within the territory ofdefendant's gang and explained his presence in the area. Evidence indicating that defendant was a gang member or involvedin gang-related activity is generally held to be admissible toshow common purpose or design or to provide a motive for anotherwise inexplicable act. People v. Patterson, 154 Ill. 2d414, 458, 610 N.E.2d 16 (1992). Such evidence, however, is onlyadmissible where there is sufficient proof that the membership oractivity is related to the crime charged. Patterson, 154 Ill. 2dat 458. In the instant case, there is no indication thatdefendant's membership was related to this crime. Since thetrial court advised the jury of the limited purpose for which theevidence was presented prior to the testimony, in our view, thedefendant's other crimes evidence was properly admitted.

We do not condone the detailed questioning by the Stateidentifying the defendant with gang and drug activity in the areaand recommend that the State refrain from emphasizing gang anddrug activity of defendants in cases where defendants are notcharged with gang-related or drug-related offenses. While weconsider some of the detailed questioning in the instant case tobe unnecessary and improper, we also consider the error to beharmless in view of the substantial weight of the fingerprint andother relevant evidence against the defendant.

While there is widespread prejudice against street gangs,the erroneous admission of gang evidence at trial does notautomatically warrant reversal. People v. Martin, 271 Ill. App.3d 346, 355, 648 N.E.2d 992 (1995). A reviewing court may holdsuch an error to be harmless when it is satisfied that the errordid not contribute to the defendant's conviction. People v.Easley, 148 Ill. 2d 281, 330, 592 N.E.2d 1036, 1058 (1992). Weso hold.

III

Defendant also contends that the trial court denied him afair trial by precluding the defense from cross-examining Ms.Frazier about her psychiatric history. Prior to the crime andthe trial, Ms. Frazier had been hospitalized for five days for asuicide attempt and depression.

"It may be broadly stated that in determining credibility ofa witness or the weight to be accorded to his testimony, regardis generally given to his mental condition. Almost any emotionalor mental defect may materially affect the accuracy of thetestimony." People v. Phipps, 98 Ill. App. 3d 413, 416, 424N.E.2d 727 (1981). Several courts have confirmed that the mentalhealth history of a witness is relevant as it relates to his orher credibility and is thus a permissible area of impeachment. See People v. Dace, 114 Ill. App. 3d 908, 913, 449 N.E.2d 1031(1983); People v. Helton, 153 Ill. App. 3d 726, 733, 506 N.E.2d307 (1987); People v. Faulkner, 186 Ill. App. 3d 1013, 1028, 542N.E.2d 1190 (1989).

While mental health history is relevant as it relates tocredibility, and is thus a permissible area of impeachment,before such evidence may be introduced, its relevance must beestablished. People v. Williams, 147 Ill. 2d 173, 237, 588N.E.2d 983 (1991), citing People v. Lindsey, 73 Ill. App. 3d 436, 447-48, 392 N.E.2d 278 (1979); People v. Walton, 107 Ill. App. 3d698, 703, 437 N.E.2d 1273 (1982). The burden is on the partyseeking to introduce the evidence to establish its relevance tothe witness' credibility. Helton, 153 Ill. App. 3d at 733. Thetrial court in the instant case limited the cross-examination ofMs. Frazier, reasoning that the defendant failed to demonstratethe relevancy of such questioning.

Defendant relies on People v. Dace, 114 Ill. App. 3d 908,449 N.E.2d 1031 (1983). In Dace, the State's chief witness hadbeen involuntarily committed to a mental health center less thantwo years before the offenses occurred. Dace, 114 Ill. App. 3dat 915. In an in camera conference, the trial court reviewed hercase files. The trial court ruled the records were privileged,too old to be relevant and barred the defendant from questioningthe witness concerning her mental history. Dace, 114 Ill. App.3d at 912. The appellate court noted that her testimony was theonly evidence of the defendant's participation in the burglary. Dace, 114 Ill. App. 3d at 915-16. The appellate court held that,"[c]onfronted with articulable evidence that raises a reasonableinquiry of a witness's mental health history, a court shouldpermit a defendant to discover that history." Dace, 114 Ill.App. 3d at 915. The court explained that "[a] thoroughexamination of a witness's credibility is especially importantwhen that testimony will be determinative of the defendant'sguilt or innocence." Dace, 114 Ill. App. 3d at 913. Unlike thetestimony of the witness in Dace, Frazier's testimony was not theonly evidence against defendant in the instant case.

Furthermore, appellate courts have noted their discomfort inallowing disclosure of psychiatric records. See Laurent v.Brelji, 74 Ill. App. 3d 214, 217, 392 N.E.2d 929 (1979) ("Tocasually allow public disclosure of [psychotherapeutic treatment]would desecrate any notion of an individual's right to privacy");People v. Phipps, 98 Ill. App. 3d 413, 417, 424 N.E.2d 727 (1981)("It is commonly recognized that the purpose behind apsychotherapist-patient privilege is to induce the patient tomake full disclosure so that proper treatment may be given and toprevent public disclosure of socially stigmatized diseases").

An instructive case is Goldberg v. Davis, 215 Ill. App. 3d930, 575 N.E.2d 1273 (1991). In that case, a psychiatrist filedaction to compel production of a patient's prior treatmentrecords for purposes of an administrative disciplinary hearing. The court held that the prior records were not necessary tochallenge the patient's credibility or the validity of thecharges against the doctor. Goldberg, 215 Ill. App. 3d at 950. The court explained that the validity of the charges could bedetermined through other questioning and that the patient had notraised her mental condition as an issue by appearing as awitness. Goldberg, 215 Ill. App. 3d at 950. Moreover, the courtheld that "[h]er credibility is not dependent on her entire priormental history." Goldberg, 215 Ill. App. 3d at 950.

Another instructive case is People v. Walton, 107 Ill. App.3d 698, 437 N.E.2d 1273 (1982). In Walton, the court held thatthe defendant did not sufficiently show the relevance of thewitness' mental health history. Walton, 107 Ill. App. 3d at 703. The court reiterated the necessity of establishing the pertinenceof a witness' psychiatric history to the credibility of his orher testimony before such evidence may be introduced. 107 Ill.App. 3d at 703.

Here, the trial court relied on People v. Helton, 153 Ill.App. 3d 726, 506 N.E.2d 307 (1987), to limit cross-examination ofFrazier. The State now relies on Helton to support itscontention. In Helton, the prosecution's witness washospitalized for depression. Helton held that the defendant hadnot sufficiently demonstrated the relevancy of inquiring as toher mental health history. Helton, 153 Ill. App. 3d at 733. Thecourt stated:

"We also fail to perceive how the mere fact of the victim'shospitalization for severe depression in 1983 would impeachher credibility or affect her ability to communicate herobservations of the 1985 attack accurately and truthfully. We therefore find the trial court properly excluded thisevidence." Helton, 153 Ill. App. 3d at 734.

Similarly, in the instant case, defendant has failed to showhow Ms. Frazier's voluntary hospitalization for depression in1990 would affect her ability to communicate her observations ofthe conversations she overheard or the conversations that she hadwith defendant in 1991. Thus, the trial court properly limitedcross-examination on this issue.

For the foregoing reasons, the decision of the trial courtis affirmed.

Affirmed.

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