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Docket No. 90914-Agenda 13- September 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESUS VILLARREAL, Appellee.

Opinion filed December 6, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

In the circuit court of Rock Island County, a jury founddefendant, Jesus Villarreal, guilty of second degree murder inconnection with the death of Ali McDonald. He appealed,claiming that he had not been proven guilty of second degreemurder beyond a reasonable doubt. He argued in the alternativethat he had been denied a fair trial by the verdict forms submittedto the jury and/or by improper admission of gang evidence. Theappellate court found that the verdict forms used in this case haddenied defendant a fair trial, and reversed his conviction andremanded for a new trial. No. 3-99-0048 (unpublished orderunder Supreme Court Rule 23). We granted the State leave toappeal to this court. See 155 Ill. 2d R. 315(a). We now reverse thejudgment of the appellate court and reinstate defendant'sconviction.

BACKGROUND

In the early morning hours of June 26, 1998, Moline PoliceOfficer Robert McNabb responded to a call in the neighborhoodof 4528 7th Avenue in Rock Island, Illinois. He found AliMcDonald lying in the street, bleeding from two stab wounds. Anambulance was summoned, but the victim died before it arrived.Defendant was arrested later that morning and gave a statement topolice.

On June 27, the day after his arrest, defendant was charged byinformation with first degree murder, in that he had caused thedeath of the victim while committing the felony of aggravatedbattery (felony murder) (720 ILCS 5/9-1(a)(3) (West 1996)).Shortly thereafter, defendant filed notice of his intention to assertthe defense of justifiable use of force. Jury trial was set forOctober 13. On October 8, the State filed two additional chargesagainst defendant. He was charged with first degree murder in thathe had caused the death of the victim in that he stabbed the victim,knowing that his act created a strong probability of death to thevictim (first degree strong probability murder) (720 ILCS5/9-1(a)(2) (West 1996)), and with second degree murder, in thathe had committed first degree strong probability murder and at thetime of the killing he unreasonably believed the circumstances tobe such as would justify or exonerate the killing (720 ILCS5/9-2(a)(2) (West 1996)).

Defendant filed a pretrial motion in limine to bar the Statefrom introducing evidence of gang affiliation. The court denied themotion after conducting a pretrial hearing on the issue. Thefollowing evidence was adduced at the pretrial hearing on themotion and at trial.

At the pretrial hearing, Officer McNabb testified that shortlybefore 4 a.m. on June 26, 1998, he was in a public alley behind156 4th Avenue in Moline. A number of persons were "hangingaround" in the alley, having a casual boxing match. OfficerMcNabb knew that most of the individuals present were membersof the Bishops street gang. However, he stated that he did notknow defendant and defendant was not in the group. He stated thatthe 100 block between 4th and 5th Avenues in Moline was"Bishop territory."

After Officer McNabb had been in the alley for approximately15 minutes, he observed four persons walking westbound past thefront of the house on 4th Avenue. The officer later learned that thefour persons were Onis Garcez, Hector Valles, Omar Garcia, andthe victim, Ali McDonald. Soon after McNabb noticed the fourmen, the Bishops walked towards the front of the house toconfront them. McNabb drove his squad car around to the front ofthe house to intervene. As the Bishops came around to the front ofthe house, they were yelling, challenging the passers-by. McNabbheard yells of "Bishops" and "punk and wetback and things likethat."

When McNabb arrived at the front of the house, he orderedthe Bishops to return to the rear of the house, then patted down thefour pedestrians against his squad car for weapons andidentification. McNabb then began to escort the four men out ofthe area, to the border of Moline. Before they crossed the border,however, McNabb received a dispatch to respond to an automobileaccident. He left, but was immediately called back to the scene.When he arrived, he saw the victim lying wounded on the ground.

McNabb testified that he had been in contact with the Bishopsfor more than a year and a half. He stated that the Bishops werechallenging the other four men because Bishops routinelychallenged any group of non-Bishop Hispanic males in their area.

McNabb testified that the non-Bishops were not making anygang-related comments. He did, however, admit that they wereyelling back at the Bishops in Spanish, a language McNabb doesnot understand. He stated that although the four men initially justwanted to leave, they seemed to want to "go at it" after all of thecomments had been exchanged between the two groups. Thevictim initially refused to comply with the officer's attempt tosearch him; the officer had to open his baton before the victimcomplied. The victim continued to exchange comments with oneof the Bishops in the officer's presence, even after all of the otherBishops had returned to the rear of the house.

At trial Officer McNabb repeated the above testimony, addingthat he did find a bat at the scene of the stabbing, but no otherweapons.

Enrique McDonald, the brother of the victim, lived one or twoblocks from the site of the initial encounter. He testified at thepretrial hearing that he was home the night of the murder, and thevictim was at his house, as were several other people. At about 2or 2:30 a.m., they heard yelling outside, and McDonald saw sixyoung men, one of whom was defendant, out in the street.McDonald did not hear defendant yell anything, but the group wasyelling the phrases "[w]hat's going on-what's up. What'srolling?" He also heard the word Bishops, but did not know whosaid it. The victim ran at the men because one of them threw abottle. McDonald grabbed a baseball bat and followed his brother.

At trial McDonald added more detail about events heobserved. McDonald testified that he shouted at the victim thatdefendant had a knife, but the victim paid no attention to him.After defendant and the victim had run around a corner, defendantstopped and stood "waiting for" the victim. The victim closed withdefendant, and threw a punch. Defendant lunged at the victim withthe knife, and the victim fell. McDonald chased defendant, and hithim with the baseball bat when he stumbled, near a telephone inthe street. McDonald testified that the victim never had a baseballbat or any weapon. McDonald returned to the victim after hittingdefendant, because other men were hitting the victim with abaseball bat as he lay in the street.

On cross-examination, McDonald admitted that when he gavea statement to the police shortly after the stabbing he told themthat the victim was not the first person to move towards the menin the street; other people at the house had already started walkingtowards them when the bottle was thrown. However, he statedthat, actually, the victim was the first person to move out into thestreet towards the other men. He stated that when the victim firstwent out into the street, defendant was backing away from him ina walking crouch, showing the knife. His walk changed to a runwhen he got to an alley in the middle of the block. The victim ranafter him, and caught up to him at the corner. McDonald statedthat when defendant and the victim ran he followed, with thebaseball bat in his hands. He admitted that he was running towardsdefendant when the victim was stabbed; the victim was alsomoving towards defendant at that time.

McDonald was also stabbed by defendant, but that stabbingoccurred while McDonald was hitting defendant with the baseballbat. McDonald initially testified that defendant was yelling "helpme," but on redirect examination testified that he did not actuallyhear that. He thought that defendant had probably yelledsomething, because some of his friends did come to help him. Hedid hear someone other than defendant yell "whoee."⁽¹⁾

Hector Manuel Valles testified at the pretrial hearing that hewas one of the men who walked past 156 4th Avenue with thevictim. He heard the word "Bishops" being used when the peopleat the house were yelling things. The group was calling them "LowRiders," which is a gang in Moline; Valles made a gang sign inresponse, indicating that he was a member of the Sudenyo gang.Valles corroborated that several men showed up yelling on thestreet in front of McDonald's house later on, but he could notidentify anyone in the group. He testified that he and the otherswere sitting on the steps in front of the house, and he never sawthe victim leave the house. He admitted that he was drunk at thetime.

Omar Garcia testified at the pretrial hearing that he was alsowith the victim as they walked past 156 4th Avenue. There a groupof men approached them and started yelling and "sending signs,"signifying their gang affiliation. The other group yelled, amongother things, "Bishops" and "Low Rider killers." He testified thata group of men later showed up at McDonald's house, shoutingsimilar things. He could not tell if they were the same men whohad been shouting things before, and could not identify defendantas a member of the group. Garcia understood the shouting of "LowRider killers" to mean that the other group thought that they weremembers of the Low Rider gang and wanted to beat them upbecause of that fact. He believed that the victim and McDonald didchase two men down the street after the yelling started atMcDonald's house. However, he stated that neither the victim norMcDonald had a bat.

The final witness at the hearing was former Bishop TimothyGeisler. Geisler, a Bishop at the time of the murder, was amongthe group of men at the rear of 156 4th Avenue on the morning inquestion. He stated that this address was Steve Jauregui's house,and that defendant was inside the house at the time that the victimand the three other men walked past the front of the house.Defendant exited the house after the four men were escorted awayby Officer McNabb. A few minutes later, defendant and Rosasleft, walking down the alley. Geisler, Duran and Estaban ran afterthem when, a short while later, they heard the yell "whoee."Geisler testified that this was a signal that the Bishops used if theywere in trouble, to call other Bishops.

Geisler saw about 10 persons with bats, bricks and bottlesapproaching Rosas and defendant. Rosas was backing away fromsomeone with a bat and tripped over the curb; when he fell, theassailant hit him with a bat. When Geisler ran over to help him, hesaw the victim lying on the ground and saw someone hittingdefendant with a bat by a pay phone. Geisler stated that the victimhad the bat originally, and McDonald picked the bat up after hisbrother fell.

At trial, Geisler added a few details to his pretrial testimony.After the confrontation between the Bishops and the four men atJauregi's house, defendant and Rosas left, walking to the "Git 'NGo" convenience store. Shortly thereafter, Geisler heard one ofthem shouting "whoee," and ran after them. He saw defendant andRosas facing approximately 10 men. They were backing up, awayfrom the crowd, and Geisler heard Rosas say "we don't want tofight." He saw Rosas get hit with a bat after he stumbled over acurb, and thereafter saw the victim hit defendant with a bat beforedefendant stabbed him.

At trial, Onis Garcez testified that he was with the victim asthey walked past Jauregui's house, and described that encounteressentially as had the other witnesses. He testified that the victimwas not angry after that initial encounter, although he admittedthat the victim was angry while the police officer was searchingthem. His testimony was impeached with a statement he had givenshortly after the stabbing, in which Garcez told Detective Heistthat the victim was "mad or something. Then he saw these guyspull up like in the middle of the alley. They started making signsand saying stuff to us. And [the victim] got up and he said likethese guys are not going to f*** with me no more. I'm going totake them out." At trial Garcez testified that this was not exactlywhat the victim said, because Garcez had been translating thevictim's Spanish into English for the benefit of the police. Whenpressed for specifics, he admitted that this was more or less whatthe victim had said, but the victim never used the word "kill."

Jaime Rosas also testified only at trial. He stated that he wasalso known as Luis Rosas or Jaime Schweickhardt, and that hewas about 5 feet 5 inches tall and 120 pounds. His testimony wasconsistent with the previous witnesses regarding the firstencounter, at Jauregui's house, although he stated that the fourpassers-by initiated gang references, saying "Sudenyos" first,before any of the Bishops said anything. With respect to thesecond encounter, he testified that when he left Jauregui's housewith defendant he had two purposes in mind; to walk to "Git 'NGo" and to see if the other group was still in the area. Defendant,however, was just going home. They saw the other men on theporch of McDonald's house. Four men got up and started yelling"Sudenyos" at them; Rosas and defendant cursed at them in replyand the groups flashed gang signs at each other.

The four men left the porch and began walking towards Rosasand defendant. Rosas said they did not want to fight, but the mencontinued to advance. Rosas and defendant began to retreatbackwards, and Rosas shouted "whoee," to call for help. Morepeople came at them, and Rosas and defendant ran; as Rosas ran,he was hit with a bat and fell. He did not see the stabbing, but didsee defendant being hit with a bat later, by the pay phone. He didnot think that the person hitting defendant at that time was thevictim.

The forensic pathologist who performed the autopsy on thevictim testified that the two main wounds to the victim were stabwounds, a fatal wound to the left chest which severed two majorarteries and a contributing wound to the left of the abdomen. Thepathologist also noted that the body had head wounds consistentwith being hit with a baseball bat. The victim was 6 feet 3 inchestall and weighed approximately 170 pounds.

Sergeant Gregory Heist, of the Moline police department, wasthe State's final trial witness. He brought defendant to the policestation and interviewed him in the late morning hours of June 26.When he first saw defendant, Heist noted that defendant had alarge knot on his head and a laceration on his leg, which Heistdescribed in his report as "possibly a knife wound." When firsttalking to Heist, defendant stated that he did not have a knife onthe night of the offense and denied any involvement in the crime.According to Heist, defendant claimed he heard some men talkingin Spanish while he was walking home; he fell, and did notremember anything further. Later, Heist confronted defendant withinformation that defendant had a knife at a party on the evening inquestion, and defendant said he was ready to tell the truth.

Defendant told Heist that he had been walking to the end ofthe alley to "check on things," and when he got to the end of theblock he overheard some people speaking in Spanish. He statedthat he did not know what they were saying, because he did notunderstand Spanish. Defendant yelled "shut up, speak English, youf***ing Brazens [sic]." He then saw two or three persons walkingtowards him, and he backed up as they were getting closer, thendecided to run. He also yelled "whoee," to summon the otherBishops. He saw McDonald advancing on Rosas with a bat, andstarted over to help his friend, when the victim came after him.

Defendant told Heist that he thought the victim had somethingin his hand. Accordingly, defendant took out his knife and swungit back and forth in front of him to ward off the victim. Afterswinging the knife three or four times he realized that the victimwas not going to back off, so he lunged at the victim with theknife. Defendant believed this was when he stabbed the victim. Hethereafter ran off because he saw McDonald advancing on himwith the bat. Defendant fell near a telephone booth andremembered being hit three or four times with a bat. He was dazedafter this, but slightly recalled two of his friends walking him backto the Jauregui residence afterwards.

Defendant told Heist he did not know what was in thevictim's hands before the stabbing. He never told Heist that thevictim had a bat and never stated that he had been struck with a batbefore the stabbing. He at first told Heist that he had given hisknife to one of his friends, then later said that he had thrown itaway somewhere near the alley.

The State rested, and the defense's motion for a directedverdict of acquittal was denied.

Nicholas Duran corroborated Rosas' version of events atJauregui's house, stating that the four passers-by said somethingto the people at the house first, which caused them to come to thefront of the house. Duran stated that he returned to the back yardafter Officer McNabb ordered them to do so, and did not knowwhat else had happened in the front of the house. He stated that noone discussed where Rosas and defendant were going when theyleft, but a short time after their departure, he heard the yell"whoee," and he, Jauregui and Geisler ran down the alley afterthem. When they arrived at the mouth of the alley, they saw Rosasand defendant confronted by approximately 10 men, at least oneof whom had a bat. He saw no weapon in the hands of Rosas ordefendant, and he did not remember whether Jauregui or Geislerhad a weapon. On this fact he was impeached with an earlierstatement in which he told a police officer that Geisler had a bat.Duran admitted that Geisler may have had a bat, but he did notremember.

Duran went to a nearby vacant lot to find a brick or weaponto defend himself, and saw defendant being hit with a baseball batby the pay phone, a short distance away. Duran distracted the manwith the bat, keeping the phone between the two of them, anddefendant ran.

Finally, defendant testified on his own behalf. He stated thathe was 5 feet 6 inches tall, and weighed 128 pounds, the same sizehe was at the time of the events in question. He was at Jauregui'shouse while Officer McNabb was there, but he stayed out of sight,in hiding, because he did not want any trouble with the police. Hedid not go to the front yard with the other people at the house, andwhen they returned to the back yard and he asked them what wasgoing on, they told him it was not important.

He left to go home a short while later, walking through thealley with Rosas. When they reached the mouth of the alley, heheard people yelling in his direction in Spanish and he yelled atthem to "shut the f*** up." After this, several men came out intothe street. Defendant temporarily lost track of Rosas as he backedaway from the men, especially one man with a bat. He saw Rosasget hit with the bat and ran towards him to try to help him. At thispoint, the victim and McDonald, both of whom were bigger thanhim, came towards him. He could not clearly see the victim'shands, because he was advancing with his body turned at an angle,his hands down low. Defendant thought at the time that the victimhad a knife in his hands.

At this point defendant pulled out his knife. He waved it fromside to side in front of him as he walked backwards, away from themen. McDonald was moving to defendant's right; defendantthought that he was trying to circle around behind him. The victimmoved as if to strike defendant, and defendant lunged at him. Hethen turned to run, but felt something hit his leg and he fell. As hetried to get up, McDonald hit him repeatedly with the bat.Eventually defendant got up, and ran to the alley. Defendanttestified that he believed that the victim did in fact have a knife,because after the fight was over his leg had a puncture wound anda scratch where he was hit when he turned to run.

On cross-examination defendant admitted that he was aBishop, as were most of the people at Jauregui's house. He statedthat he did yell "whoee" as he was backing up, which was aBishop signal that he was in trouble and needed help. He did callthe other men "Brazers," which he stated was a term used todescribe people from the Southwest who did not speak English.He also admitted he was never hit before he stabbed the victim.

The court held two instruction conferences. The first wasinformal, and was held off the record. The second conference washeld on the record, and confirmed which instructions were to begiven and by whom those instructions were submitted. Defendantand the State offered different verdict forms and instructions withrespect to the issues raised in this appeal. The State's instructionNo. 19 was instruction No. 26.01A from the Illinois Pattern JuryInstructions, Criminal (3d ed. 1992) (hereinafter IPI Criminal 3d).According to this instruction, the jury would be told that it wouldreceive three verdict forms: " 'not guilty', 'guilty of First DegreeMurder', and 'guilty of Second Degree Murder,' " and instructedto select and sign only one of these verdict forms. The Stateoffered corresponding verdict forms.

However, the State withdrew this instruction and verdictforms when defendant offered his instruction No. 17, which wasIPI Criminal 3d No. 26.01B. According to this instruction-whichwas consistent with all of the instructions offered by the defense,which were given with no objection by the State-the jury was toldthat defendant was charged with two "types" of first degreemurder: "Type A" and "Type B." "Type A" was consistently usedto refer to first degree strong probability murder (see 720 ILCS5/9-1(a)(2) (West 1996)), and "Type B" was consistently used torefer to felony murder (see 720 ILCS 5/9-1(a)(3) (West 1996)).Defendant's instruction No. 17 informed the jury that it would begiven three verdict forms with respect to "Type A" first degreemurder: "'not guilty of first degree murder (Type A)', 'guilty offirst degree murder (Type A)', and 'guilty of second degreemurder.' " The jury was told that it should select and sign only oneof these three verdict forms. The instruction further informed thejury that with respect to first degree murder (Type B) it wouldreceive: "a 'not guilty of first degree murder (Type B)', and a'guilty of first degree murder (Type B)' form of verdict." The jurywas also told that it should select and sign only one of these twoverdict forms.

An additional instruction relevant to the issues in this case isdefendant's instruction No. 13, which was IPI Criminal 3d No.7.06A. This instruction, given without objection by the State,informed the jury that "to sustain the charge of first degree murder(Type A) or the charge of second degree murder," the State wasrequired to prove that (1) defendant performed the acts whichcaused the victim's death; (2) when he did so, defendant knew thathis acts created a strong probability of death or great bodily harmto the victim; and (3) defendant was not justified in using the forcewhich he used. This instruction specified that if the jury found thatany of the above propositions had not been proven beyond areasonable doubt, deliberations on these charges should cease andthe proper verdict would be "not guilty of first degree murder(Type A)." The instruction goes on to specifically admonish thejury that it "may not consider whether the defendant is guilty ofthe lesser offense of second degree murder until and unless youhave first determined that the State has proved beyond areasonable doubt each of the previously stated propositions."

After closing arguments and instructions the case went to thejury. At some point during deliberations the jury sent out a noteasking the question, "How many of the forms do we fill out, all orjust one we decided on?" On the record in chambers the partiesand the court discussed how the court should respond. The courtsuggested that with respect to the charge of first degree strongprobability murder, or "Type A" first degree murder, "there's threeverdict forms, not guilty, guilty of first degree murder, guilty ofsecond degree murder. It's in the instructions, but apparently thoseare complicated instructions. It seems to me my answer would be:as to Murder Type A, you pick one of the three verdict forms, andI cite what they are, which reflects your verdict." With respect tofelony murder, or "Type B" first degree murder, the court statedthat "there's two verdict forms, a not guilty and a guilty, and itwould seem to me you would select a verdict form that representsyour judgment in that." The parties agreed with this course ofaction. The trial judge then left chambers and responded to thejury's question orally, off the record. Shortly thereafter, the juryreturned verdicts of not guilty of first degree murder, Type B, andguilty of second degree murder.

Defendant filed a post-trial motion for directed verdict ofacquittal or for a new trial, which the court denied. In argument onthe motion, the court noted that the jury had been instructed thatas to felony murder, "you have a guilty and a not guilty; you signone or the other. As to the Count II and III [first degree strongprobability murder and second degree murder], I said: you havethree verdict forms, a guilty verdict form as to first-degree murder,a not guilty verdict form as to first-degree murder, and then youhave a guilty verdict form to count III, which is the second-degreemurder."

On appeal, the appellate court reversed and remanded for anew trial. The court held that defendant had been denied a fair trialbecause of the verdict forms which had been submitted to the juryin this case. Specifically, the court found the conviction infirmbecause of the lack of a general "not guilty" verdict form. Relyingon People v. Cross, 272 Ill. App. 3d 354 (1995), the court held that"[i]n a case, such as the one at bar, where the defendant wasseparately charged with the offense of second degree murder, wefind that a verdict form which clearly reflects the absence ofculpability for any of the charged offenses is especially vital." No.3-99-0048 (unpublished order under Supreme Court Rule 23).The court found that there was sufficient evidence admitted at trialto prove defendant guilty beyond a reasonable doubt, andaccordingly remanded for a new trial; for purposes of guidance onremand, the court held that the trial court had not erred inadmitting gang evidence. This appeal followed.

ANALYSIS

I. Verdict Forms.

The State contends that the appellate court erred in reversingdefendant's conviction based on the verdict forms. The Stateargues initially that defendant should be barred from challengingthe propriety of the verdict forms on appeal, because defensecounsel submitted the forms that were used. Moreover, the Statecontends that even if defendant's complaint regarding the verdictforms is considered on the merits, it should be rejected because theproper IPI verdict forms were used, taking into account the factthat in this case defendant was charged with both first degreestrong probability murder and first degree felony murder, the latterof which cannot form the basis for a second degree murderconviction. Defendant responds that the verdict forms wereimproper, as found by the appellate court. He maintains that if heis precluded from contesting the propriety of the verdict formsbecause his counsel submitted them, his counsel was ineffectivefor so doing.

Although the appellate court did not consider it, we deem itappropriate to begin our analysis by addressing the State's waiverargument. We agree with the State that because defense counselsubmitted the forms which were used, defendant cannot directlyattack the verdict forms. "[W]here, as here, a party acquiesces inproceeding in a given manner, he is not in a position to claim hewas prejudiced thereby." People v. Schmitt, 131 Ill. 2d 128, 137(1989). Accord People v. Heard, 187 Ill. 2d 36, 81 (1999); Peoplev. Neal, 142 Ill. 2d 140, 151-52 (1990); People v. McKinney, 260Ill. App. 3d 539, 542 (1994). Active participation in the directionof proceedings, as in this case, goes beyond mere waiver. To allowdefendant to object, on appeal, to the very verdict forms herequested at trial, would offend all notions of fair play. See Peoplev. Smith, 71 Ill. 2d 95, 104 (1978) (noting that normally neitherRule 615(a), allowing parties to raise "[p]lain error," nor Rule451(c), which overrides waiver when "the interests of justice sorequire," is applicable "where the instruction of which defendantcomplains on review is one which he himself tendered in the trialcourt"). "[I]t is well established that 'an accused may not ask thetrial court to proceed in a certain manner and then contend in acourt of review that the order which he obtained was in error.' "People v. Segoviano, 189 Ill. 2d 228, 241 (2000), quoting Peoplev. Lowe, 153 Ill. 2d 195, 199 (1992). Accord People v. Abston,263 Ill. App. 3d 665, 671 (1994) ("where the trial court's courseof action is taken at defendant's suggestion and the defendantthereafter acquiesces in the court's expressed course of conduct,the defendant should be precluded from raising such course ofconduct as error on appeal").

Defendant contends that counsel's submission of the verdictforms in question constituted ineffective assistance of counsel,however. In addressing this argument we are guided by familiarprinciples. To demonstrate ineffective assistance of counsel,defendant must show (1) that his attorney's performance fellbelow an objective standard of reasonableness, and (2) that theattorney's deficient performance resulted in prejudice todefendant. People v. Williams, 181 Ill. 2d 297, 320 (1998);Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,693, 104 S. Ct. 2052, 2064 (1984). In this case, counsel was notineffective because the verdict forms counsel submitted wereappropriate.

Defendant contends that the appellate court was correct inholding that he was entitled to a verdict form which would haveallowed the jury to simply find him "not guilty." We disagree. Themanner in which the trial court instructed the jury was whollycorrect. The State's instruction No. 19 (IPI Criminal 3d No.26.01A) is to be used when the jury is to be instructed on first andsecond degree murder but not the insanity defense or guilty butmentally ill verdict, nor any other charges. It must be used with IPICriminal 3d No. 2.01A. The latter instruction states that

"The defendant[s] [(is) (are)] charged with the offenseof first degree murder. The defendant[s] [(has) (have)]pleaded not guilty. Under the law, a person charged withfirst degree murder may be found (1) not guilty; or (2)guilty of first degree murder; or (3) guilty of seconddegree murder."

By contrast, defendant's instruction No. 17 (IPI Criminal 3d No.26.01B) must be used when the jury is to be instructed on first andsecond degree murder and some other charge or charges, but notthe insanity defense or guilty but mentally ill verdict. It must beused with IPI Criminal 3d No. 2.01B, which states that

"The defendant[s] [(is) (are)] charged with the offenseof first degree murder. The defendant[s] [(has) (have)]pleaded not guilty. Under the law, a person charged withfirst degree murder may be found (1) not guilty; or (2)guilty of first degree murder; or (3) guilty of seconddegree murder.

The defendant[s] [(is) (are)] also charged with theoffense of ____. The defendant[s] [(has) (have)] pleadednot guilty to that charge."

On its face, it would appear that defendant has a valid point.He was, indeed, charged only with second degree murder and firstdegree murder-albeit two different types of first degree murder.But therein lies the difficulty. We believe that first degree felonymurder must be treated as a separate and different charge fromfirst degree intentional murder or first degree strong probabilitymurder in this regard. As we have recently held, a second degreemurder instruction is inappropriate and must not be given withrespect to a charge of felony murder. See People v. Morgan, Nos.88508, 88513 cons., slip op. at 34-36 (October 18, 2001) (alsoholding that the predicate felony underlying a felony-murdercharge must have an independent felonious purpose, unlike anaggravated battery which caused the death of the victim). Had thecourt used the instructions submitted by the State, the jury couldhave based a verdict of second degree murder on a finding of guiltof felony murder. This would be inappropriate. A defendantcannot be found guilty of second degree murder based on a chargeof first degree felony murder. Accordingly, for purposes of IPICriminal 3d Nos. 26.01A through 26.01P, felony murder must beconsidered an "other charge" separate from a charge of first degreemurder upon which a second degree murder conviction may bebased.

Further, we do not believe that the IPI instructions should bechanged so as to provide the jury with a general "not guilty"verdict when the defendant is charged with a type of first degreemurder which could be mitigated to second degree murder and anyother crime-including first degree felony murder. A general not-guilty verdict is used when the only charges before the jury aremitigatable first degree murder and second degree murder. See IPICriminal 3d No. 26.01A. But where other charges areinvolved-including first degree felony murder-the jury should berequired to enter separate judgments regarding defendant's guilt onmitigatable first degree murder and on the other charges.Otherwise, the general "not guilty" verdict would operate orappear to operate to absolve defendant of guilt not only of themitigatable charge of first degree murder and second degreemurder, but of all charges, which might not be the intent of thejury. In the instant case, for example, had the jury been providedwith a general "not guilty" verdict form for use in the first degreestrong probability murder/second degree murder charges, the jurywould have had to render apparently inconsistent verdicts if it hadfound defendant not guilty of first degree strong probabilitymurder-thus having to fill out a general "not guilty" verdict-butguilty of first degree felony murder.

Accordingly, the instructions which were used at trial werethe most beneficial accurate instructions which could have beengiven. The instructions provided a clear demarcation between thetwo ways in which defendant was charged with first degreemurder. The jury was not given the option of improperly basing aconviction of second degree murder on the felony murder charge,nor was the jury faced with apparently inconsistent verdicts.Moreover, the jury received verdict forms corresponding to theirinstructions, avoiding the situation found to warrant reversal inCross.

II. Sufficiency of Evidence

In the alternative, defendant urges this court to reverse hisconviction outright for insufficiency of the evidence. We declineto do so. As the State's Attorney acknowledged in his closingstatement, defendant's lack of culpability was indeed establishedif the jury fully believed defendant's testimony. However,defendant's testimony and the defense testimony in general wasnot the only evidence adduced at trial. The jury, which waspresented with conflicting versions of events, was entitled tochoose among those versions. People v. Ortiz, 196 Ill. 2d 236, 267(2001) ("a fact finder need not accept the defendant's version ofevents as among competing versions"). It is not our province tosecond-guess the verdict or to retry defendant on appeal. Peoplev. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, we will reversedefendant's conviction only if, viewing the evidence in the lightmost favorable to the prosecution, no rational finder of fact couldhave found the crime to have been proved beyond a reasonabledoubt. See Hall, 194 Ill. 2d at 330, citing Jackson v. Virginia, 443U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979);People v. Young, 128 Ill. 2d 1, 49 (1989). We do not so find in thiscase. In short, the jury simply was not required to find thatdefendant reasonably believed that his life was in danger.Testimony differed regarding how close McDonald was todefendant when defendant committed the stabbing; defendant toldHeist that McDonald only came at him after the stabbing. Defendant did not tell Heist that he thought the victim had a knife;even at trial defendant never stated that he actually saw a knife.There was evidence that defendant did have a wounded leg afterthe fight, but the jury was not required because of this to concludethat the victim cut defendant as he was falling to the ground afterbeing stabbed. No knife was ever found, nor did anyone see thevictim with a knife. McDonald affirmatively testified that thevictim did not have a knife or any weapon. Although the victimwas bigger than defendant, this does not compel the jury to findthat defendant reasonably believed that his life was in danger.Either verdict could have been reached in this case, but theevidence was not so one-sided as to compel reversal of the jury'smeasured judgment.

III. Gang Evidence

Finally, defendant also contends that he is entitled to a newtrial because the trial court erred in its decision to allow theprosecution to introduce evidence of defendant's gangmembership. We disagree.

Evidentiary rulings regarding gang-related evidence arereviewed for abuse of discretion. People v. Gonzalez, 142 Ill. 2d481, 489-90 (1991). Gang membership evidence is admissibleonly when there is sufficient proof that the membership is relatedto the crime charged. People v. Smith, 141 Ill. 2d 40, 58 (1990).However, once such a relationship is shown, such evidence maybe admitted so long as it is relevant to an issue in dispute and itsprobative value is not substantially outweighed by its prejudicialeffect. People v. Johnson, 159 Ill. 2d 97, 118 (1994); see alsoPeople v. Lucas, 151 Ill. 2d 461, 480 (1992), quoting People v.Monroe, 66 Ill. 2d 317, 322 (1977), quoting Fed. R. Evid. 401("[e]vidence of gang affiliation and/or gang involvement ingang-related activity is relevant if it tends ' "to make the existenceof any fact that is of consequence to the determination of theaction more probable or less probable than it would be without theevidence" ' "). One of the purposes for which gang evidence isadmissible is to "provide a motive for an otherwise inexplicableact." Smith, 141 Ill. 2d at 58.

In the case at bar the trial court acted within its discretion inadmitting the gang evidence. The State's theory of the case wasthat the stabbing was not wholly innocent self-defense by one ortwo men being set upon by 10 men, as defendant claimed, butrather the result of gang-based violence which had begun earlierin the evening and escalated into a sortie by the Bishops toMcDonald's house. The usage of various gang-related boasts andtaunts between the two groups, as well as the flashing of gangsigns, substantiated this theory and helped to explain whatoccurred that morning.

CONCLUSION

For the reasons above stated, we reverse the decision of theappellate court and reinstate defendant's conviction and sentencefor second degree murder.

Appellate court judgment reversed;

circuit court judgment affirmed.

1. ¹At various points in the record, this call was spelled "whooee" and"ooie." We will use the spelling "whoee" throughout the text for thesake of consistency.