SIXTH DIVISION

April 4, 2003

No. 1-01-1261

PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:

Defendant, John Burnom, appeals his jury conviction for first degree murder and attemptedarmed robbery, and his respective sentences of natural life in prison and a 15-year concurrent term. On appeal, defendant contends: (1) he is not guilty of first degree murder on the theory ofaccountability because the excessive force used by police officers operated as a superceding orintervening cause in the death of Ernest Hopkins; (2) the trial court gave a misleading answer to thejury's question regarding excessive resistance; (3) he trial court erroneously applied federaleavesdropping law, rather than state law, when it denied defendant's motion to suppress audio andvideo recordings; and (4) the trial court erred in admitting gang evidence and proof of defendant'sprior criminal convictions. We affirm.

Trial testimony established the following facts.

Patricia Gibbons worked as a special agent for the Bureau of Alcohol, Tobacco and Firearms(ATF), a federal agency, for 13 years. In 1988, she also belonged to the Chicago Anti-GunEnforcement (CAGE) task force, a joint cooperative between ATF agents and Chicago policeofficers which investigates the purchase and sale of illegal firearms in Chicago. During her CAGEinvestigations, Special Agent Gibbons discovered that Joseph Vicario had illegally purchased 21firearms in a three-year period. In February 1998, Vicario was indicted on federal charges forfalsifying the federal application form in connection with the purchase of five firearms.

After appearing in federal court on these charges, Vicario met with Special Agent Gibbonsand two assistant United States Attorneys on March 19, 1998, and offered his cooperation in theirinvestigation of defendant in exchange for consideration on his case. Specifically, Vicario informedSpecial Agent Gibbons and the two assistant United States Attorneys that he knew defendant, a high-ranking gang member who ran an area of Chicago called "Motown," and that he had engaged innumerous conversations with defendant regarding the purchase of firearms. Vicario stated that hehad sold one of his illegally purchased guns to defendant.

Vicario told Special Agent Gibbons and the two assistant United States Attorneys that he hadmet with defendant in early March, and that defendant had indicated he was interested in purchasingseveral automatic weapons, seven or eight handguns, and five or six grenades. Defendant proposedto pay for the weapons with a combination of cash and heroin.

Special Agent Gibbons and Vicario formulated a plan whereby Vicario, in an undercovercapacity, would meet with defendant on March 30, 1998, for the purpose of selling him firearms inexchange for heroin and cash. The transaction would be monitored by the CAGE task force, headedby Special Agent Gibbons. Vicario would drive a Cadillac specially equipped with a fixed videocamera in the dashboard and various microphones and recording equipment.

On March 30, 1998, pursuant to their plan, Vicario met with Special Agent Gibbons andthree other CAGE team members-her partner, Special Agent Ken Ryan, and two Chicago policeofficers, Officer John Coles and Officer Dave Harris-in a parking lot at 87^th Street and KedzieAvenue. Vicario was given the Cadillac with the audio and video surveillance equipment andinstructed to remain in the Cadillac at all times so that the surveillance team could monitor Vicario'scontact with defendant. Special Agent Gibbons monitored events from her own car, while SpecialAgent Ryan remained in his own car, and the two police officers were in a car together.

Defendant eventually drove up in a grey, four-door Chevy, exited his vehicle, and enteredVicario's Cadillac. During their 10-minute conversation, the two men agreed that in exchange forvarious weaponry, defendant would pay Vicario a total of $2,800, in the form of $1,100 in cash andone half ounce of pure heroin with a street value of $1,700. They agreed to meet again in two days,on April 2, 1998, at a McDonald's parking lot on 79^th Street and Western Avenue to conclude thetransaction.

On April 2, 1998, CAGE team members Sergeant Alvin Urbikas, Officer Coles, and OfficerDavid Harris (of the Chicago police department), and Special Agent Mike Casey (of the ATF) weredispatched to the McDonald's parking lot at approximately 11 a.m. They were assigned to conductsurveillance from a Chicago police department undercover conversion van and to be the immediatearrest team. The van took up a position in the north end of the McDonald's parking lot,approximately five spaces east of the western curb.

Meanwhile, Vicario arrived at 87^thStreet and Kedzie Avenue and was given the speciallyequipped Cadillac. Vicario then went to defendant's "Motown" neighborhood, in the area of 51^stStreet and Racine Street, and began asking around if anyone had seen defendant. Special AgentGibbons and two other ATF agents followed Vicario in a separate vehicle.

Vicario eventually spoke with a man named "Ernest," later identified as the victim, ErnestHopkins. Vicario explained to Ernest that he was trying to locate defendant. Ernest told Vicariohow to page defendant.

Defendant returned Vicario's page at approximately 2:20 p.m., and the two men came to anagreement to meet between 3:15 and 3:30 p.m. at the McDonald's parking lot. Special AgentGibbons, the two ATF agents, and Vicario then drove to a forest preserve on 87^th Street, whereSpecial Agent Gibbons put a suitcase full of weapons in the trunk of the Cadillac. Special AgentGibbons told Vicario that the guns were not to leave the trunk of the car, and she also told him topark as close as possible to the covert van in the McDonald's parking lot.

At approximately 3 p.m., Vicario arrived at the McDonald's parking lot and pulled into a spotat the north end of the lot, in close proximity to the covert van containing Sergeant Urbikas, OfficerColes, Officer Harris, and Special Agent Casey. Meanwhile, Special Agent Gibbons took upsurveillance from a Shell gas station located on the northwest corner of 79^th Street and WesternAvenue, adjacent to and south of the McDonald's parking lot. Officer George Klinger, who was onthe surveillance team, also took up a spot in the Shell station.

CAGE team member Officer Larry Knysch took up location in a covert car at approximately2450 W. 79^th Street. His position was south of the McDonald's and a little bit west of the Shellstation. His duty was to prevent anyone from accessing the scene from the alley, which feeds intothe McDonald's parking lot.

At approximately 3:20 p.m., when all the surveillance units were in place, Vicario calleddefendant and told him that he had the "stuff." Shortly thereafter, at 3:30 p.m., a small green carpulled up next to Vicario's Cadillac. There were two men in the green car, including the victim,Ernest Hopkins, who had earlier told Vicario how to page defendant. Vicario told them that he waslooking for defendant, and they replied that he was on the way. Vicario then stated that he wouldonly deal with defendant.

The green car backed away and parked for a few moments alongside the covert van. Thedriver of the green car, later identified as Lavon Brown, reached under the seat, retrieved a handgun,and handed it to Ernest Hopkins. Hopkins put the gun in his waistband and covered it with his shirt.

The green car then drove into the Shell station. At approximately this time, Special AgentGibbons observed defendant parked in the Shell station. Special Agent Gibbons and Officer Klingersaw defendant, who was wearing a blue, hooded sweatshirt and dark pants, walk over to the greencar. Defendant leaned into the green car on the driver's side and conversed with the two occupantsfor approximately 1