FIRST DIVISION

OCTOBER 26, 1998

No. 1-97-0894

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Reginald Matthews was convicted of first-degree murder andsentenced to 32 years in prison. On appeal, defendant contends: (1) the trial court committedreversible error with regard to the admission of gang-related evidence and in instructing the juryas to the proper use of such evidence; (2) defendant was denied his right to a fair trial when thetrial court did not provide answers to certain jury questions; (3) defendant was denied dueprocess when the State failed to provide defendant's alleged statement to defense counsel indiscovery, resulting in reversible error; (4) the trial court erred in not suppressing the lineup anddefendant's statements as the fruits of an illegal arrest; and (5) there was insufficient evidence tosupport defendant's conviction.

We reverse and remand.

FACTS

On October 2, 1994, the victim, Alphonso Taylor, and Damon Royal were walking east on 86thStreet when a car slowed beside them and its occupants began "dropping" gang signs indisrespect of the street gang Conservative Vice Lords, of which Taylor and Royal were members. In response, Taylor and Royal began dropping gang signs disrespectful to the Blackstones streetgang, to which the car's occupants belonged. The car drove away toward the west, and Taylorand Royal were joined by Roy Knight. Shortly thereafter, the car returned, approaching themfrom the front.

The front passenger of the vehicle then leaned out the passenger window and over the roof of thecar and pointed a gun at the three individuals, who ran for cover. Royal heard a gunshot and sawTaylor, who was running away from the shooter, clutching his chest. Royal ran to call anambulance and returned soon after to find Taylor surrounded by the police and others. Royaltestified that he did not talk to police at that time because he thought his gang would deal withthe shooter. Alphonso Taylor, the victim, was taken to a hospital and later died.

Detective Michael Rowan, assigned to investigate the homicide, conducted a canvass of the areafollowing the shooting. The canvass resulted in a description of the vehicle involved in thecrime, though Rowan did not obtain much additional information from witnesses at the scene. The next day, Rowan discovered an abandoned vehicle which matched the description, and it wasimpounded. After a second, unrelated shooting in which Royal was injured, he came to policewith information about the Taylor murder. Royal provided police with a description of theshooter and identified the vehicle impounded by the police as the one used in the shooting.

Three juveniles were arrested and placed in custody in connection with the shooting: defendantReginald Matthews, Devon Howard and Ricky Richardson. In a police lineup that included allthree individuals, Royal identified defendant as the shooter. Approximately 15 minutes after thelineup identification, Rowan informed defendant he was under suspicion for the murder ofAlphonso Taylor and that he had just been identified as the shooter in the lineup. Defendant toldhim he was home asleep at the time of the shooting, as he did not get up that early. According toRowan, defendant also told him that the reason he was identified in the lineup was because hewas a Blackstone and the witnesses were Conservative Vice Lords.

Defendant's mother testified that, on the day of the shooting, she was waiting at her house for hersister, Rosalind, to come and drive her to church. When Rosalind arrived, defendant spoke withher until they left for church at around 11:50 a.m. Defendant testified on his own behalf andstated he returned home from his friend Richardson's house at around 11:30 a.m., when he spokewith his aunt in the driveway of his house. On cross-examination, he denied that he, Richardsonor Howard was a member of the Blackstones.

Defendant further denied stating to police that the only reason he was picked out of the lineupwas because he was a member of the Blackstones and the witnesses were Conservative ViceLords. The defense objected to this line of questioning, arguing this statement had not beenprovided to him in discovery. The trial judge overruled the objection and allowed the testimony. On rebuttal, Rowan testified that defendant had, indeed, made the statement regarding his gangaffiliation.

The jury found defendant guilty of first degree murder, and he was sentenced to 32 years in theIllinois Department of Corrections. Defendant now appeals this conviction.

ANALYSIS

I. The Discovery Violation

We first turn to defendant's argument that the State's failure to disclose in discovery a statementmade by defendant to Detective Rowan denied defendant's due process rights and right to a fairtrial. The standard of review for a discovery violation is whether the trial court abused itsdiscretion. People v. Weaver, 92 Ill. 2d 545, 559, 442 N.E.2d 255 (1982). Though the judgmentof the trial court in these matters is given great weight, a reviewing court will find an abuse ofdiscretion when a defendant is prejudiced by the discovery violation and the trial court fails toeliminate the prejudice. Weaver, 92 Ill. 2d at 559.

At trial, defense counsel objected to testimony regarding a statement not provided to defensecounsel in discovery, allegedly made by defendant to Rowan, that the only reason he wasidentified in the lineup was because he was a member of the Blackstones and the witnesses wereConservative Vice Lords. The objection was overruled, and after defendant testified he was not amember of a gang, his testimony was impeached with the prior inconsistent statement in whichhe said that he was identified in the lineup because he was a member of the Blackstones streetgang.

Disclosure to the accused in criminal cases is governed by Supreme Court Rule 412 (134 Ill. 2dR. 412). Rule 412 provides:

"(a) Except as is otherwise provided in these rules as to matters not subject to disclosureand protective orders, the State shall, upon written motion of defense counsel, disclose todefense counsel the following material and information within its possession or control:

***

(ii) any written or recorded statements and the substance of any oral statements made bythe accused ***, and a list of witnesses to the making and acknowledgment of suchstatements." 134 Ill. 2d R. 412(a)(ii).

The prosecution's duty to disclose under this rule is a continuing one, requiring promptnotification to the defendant of the discovery of any additional material or information, up to andduring trial. 134 Ill. 2d R. 415(b); People v. Watson, 76 Ill. App. 3d 931, 935-36, 395 N.E.2d682 (1979).

While compliance with the discovery rules is mandatory, the failure to comply with theserequirements does not require a reversal absent a showing of surprise or undue prejudice. Peoplev. Robinson, 157 Ill. 2d 68, 79, 623 N.E.2d 352 (1993). A new trial should be granted if thedefendant is prejudiced by the discovery violation and the trial court fails to eliminate theprejudice. People v. Tripp, 271 Ill. App. 3d 194, 203, 648 N.E.2d 241 (1995).

The State admits it did not provide the statement to defendant in discovery, but argues that thisfailure did not unduly burden or prejudice defendant. We disagree and find that the State's failureto provide defendant with the statement at issue was a violation of the Rule 412(a)(ii) disclosureprovision which unduly prejudiced defendant.

Illinois courts have relied on the following factors to determine whether a defendant is entitled toa new trial as a result of a discovery violation: the closeness of the evidence, the strength of theundisclosed evidence, the likelihood that prior notice would have helped the defense discredit theevidence, and the willfulness of the State in failing to disclose the new evidence. People v.Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054 (1996); Robinson, 157 Ill. 2d at 82.

First, we address the closeness of the evidence. Based on a review of the record, this was a closecase. No weapon was ever recovered and no ballistics evidence was introduced at trial. Fewwitnesses at the scene would cooperate with police, and the evidence linking the vehicle used inthe crime to defendant was limited. Further, only one eyewitness, Royal, identified defendant asthe shooter. We find that while there was sufficient evidence in this case to support defendant'sconviction, the evidence in this case can be characterized as close.

Turning to the second factor, we note that the statement allegedly made by defendant to Rowanregarding his gang membership provides strong evidence as to the motive for the shooting, whichis an integral part of the State's case. In Tripp, the court reversed and remanded a first-degreemurder conviction based on the State's failure to provide statements to the defense whichestablished motive. The court noted that "[m]otive evidence was an important ingredient inestablishing guilt beyond a reasonable doubt, and we cannot say that the defendant could notaccomplish a better defense given adequate time to prepare for this aspect of the State's case."Tripp, 271 Ill. App. 3d at 204.

While motive is not an essential element of murder, it is generally held that evidence indicatingthe defendant was a member of a gang or was involved in gang-related activity can provide amotive for an otherwise inexplicable act. People v. Resendez, 273 Ill. App. 3d 751, 652 N.E.2d1357 (1995). Defendant's statement serves such a purpose in the present case.

The prosecution in this case chose to use evidence of the defendant's membership in theBlackstones street gang to establish motive.

The record indicates that defendant was accused of shooting someone he did not knowpersonally. Because of this, the evidence of gang membership and rivalry became an importantpart of the State's case. Moreover, defendant's undisclosed statement strongly corroborates thetestimony of Royal, who was the sole eyewitness to the shooting. Even more significantly, theadmission of the statement undermined the credibility of defendant in the eyes of the jury,substantially bolstering the State's case. We believe this evidence played a vital role in the jury'sdetermination as to whether defendant was actually a gang member who was responsible for theshooting.

The next factor to be considered is the likelihood that prior notice would have helped the defensediscredit the evidence. It is clear that prior notice of the existence of the statement would haveprovided the defense with an opportunity to move to suppress it, attempt to discredit it, or at leastattempt to explain it. In the present case the defense had no such opportunity. Because thestatement was not disclosed, the defense was unable to offer evidence or modify its trial strategyin order to lessen the negative impact of the statement on defendant's case. We cannot saydefendant would not have had a better defense given adequate time to prepare for this aspect ofthe State's case. See Tripp, 271 Ill. App. 3d at 204.

The final factor at issue is the willfulness of the State in failing to disclose the new evidence. There is little direct information in the record as to the willfulness of the State in this regard. TheState characterizes its failure to disclose the statement as a mistake. Though it is difficult tobelieve the State was unaware of the existence of the statement prior to the day of trial, it isobvious the State knew the statement existed when the prosecutor utilized the statement toimpeach defendant during cross-examination. However, even if the State learned of thetestimony immediately prior to cross-examining defendant, it had the duty to first inform thedefense. Tripp, 271 Ill. App. 3d at 205.

The purpose of the discovery provision is to afford the accused protection against surprise,unfairness and inadequate preparation. Robinson, 157 Ill. 2d at 79. The prejudice resulting fromsurprise, unfairness, and inadequate preparation, as well as from the lack of opportunity toinvestigate the circumstances surrounding undisclosed alleged statements, is "so incalculable thatit cannot be conjectured by the court." Tripp, 271 Ill. App. 3d at 204.

Citing People v. Moore, 178 Ill. App. 3d 531, 533 N.E.2d 463 (1988), the State argues thatdefendant cannot persuasively claim prejudice because he did not request a continuance toinvestigate the alleged surprise statement, but instead proceeded with trial. We disagree, becausethe defense was unable to request a continuance before the damage had already beenaccomplished by the prosecution cross-examining the defendant with the undisclosed statement.See Tripp, 271 Ill. App. 3d at 203; Weaver, 92 Ill. 2d at 559-60.

In Weaver, the court remanded for a new trial because the damaging testimony occurred before itwas possible for defendant to request a continuance. The court noted that each case must bedecided on its own facts and that the defendant's failure to accept a continuance was not fatal tothe defendant's position. Weaver, 92 Ill. 2d at 559-60. The Tripp court, faced with a similarfactual situation, agreed with Weaver, holding that after a trial court overrules the defenseobjections, the failure to request a continuance should not automatically preclude review. Tripp,271 Ill. App. 3d at 203.

In the present case, the record indicates that when the defense objected to the State's cross-examination of defendant about the subject statement, he was overruled by the trial court. TheState began this line of questioning by asking defendant whether he told Detective Rowan that hewas a gang member. At that point, it was too late to overcome the prejudicial effect of theevidence. The defense did not learn of the substance of this statement until the actual questioningbegan, and even before Rowan testified on rebuttal this information was before the jury. Moreover, no curative instruction was given and the trial court failed to eliminate the prejudice. See Tripp, 271 Ill. App. 3d at 203. As in Weaver and Tripp, the damage had already been doneand a continuance would not have eliminated the prejudice against defendant. Accordingly, wereject the State's contention that defense counsel's failure to request a continuance has waived thisissue for review.

We find that the State's discovery violation has resulted in undue prejudice to defendant, and wecannot say that the prejudice from this error was harmless beyond a reasonable doubt, and thusreversal is required. People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636 (1994). We willaddress the merits of defendant's other contentions which may remain at issue in a new trial.

II. Admissibility of Gang Evidence

Defendant contends that the trial court improperly admitted gang-related evidence and erred infailing to instruct the jury as to the limited use of such evidence. The State responds that theevidence was relevant and properly admitted, and that any error with regard to the limitinginstruction was harmless error. Evidence of gang membership and gang activity is admissiblewhen (1) it is relevant to an issue in dispute, and (2) its probative value is not substantiallyoutweighed by its prejudicial effect. People v. Gonzalez, 142 Ill. 2d 481, 568 N.E.2d 864(1991). Police testimony regarding gang activity requires a third element: the officer's testimonymust qualify as expert opinion. See People v. Langford, 234 Ill. App. 3d 855, 858, 602 N.E.2d 9(1992).

Generally, gang-related evidence is admissible to show common purpose or design, or to providea motive for an otherwise inexplicable act. People v. Wright, 294 Ill. App. 3d 606, 614, 691N.E.2d 94 (1998), quoting People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900 (1990). Suchevidence, however, is only admissible where there is sufficient proof that such membership oractivity is related to the crime charged. Smith, 141 Ill. 2d at 39. The State can demonstrate gangmembership through a defendant's own admission, through evidence that the defendant shouted agang slogan before shooting, or through expert testimony from a police officer specializing ingang crimes, where the basis of the officer's assertion is presented to the fact finder. People v.Williams, 262 Ill. App. 3d 808, 635 N.E.2d 653 (1994).

For purposes of remand, we note that in order to be admissible, a police officer's testimony as togang evidence must meet the Langford test; it must qualify as expert testimony, it must berelevant and its probative value must outweigh any prejudice to the defendant. Langford, 234 Ill.App. 3d at 858. A review of the record indicates that only limited testimony was elicited fromOfficer Furlong establishing his "expertise" in the area of gang crimes. While Officer Furlongwas asked if he was familiar with what gangs were located in the area of the shooting, a moredetailed foundation is required.

In Langford, for example, the police officer testifying as a gang expert had worked as a gangcrimes specialist for 10 years and was assigned to the area where the murder occurred. Langford,234 Ill. App. 3d at 858. See also People v. Fort, 248 Ill. App. 3d 301, 618 N.E.2d 445 (1993)(police officer qualified as expert worked in gang crimes unit, was assigned to the organizedcrimes task force, and specialized in the investigation of the El Rukn street gang throughsurveillance, contact with informers and gang members); People v. Jackson, 145 Ill. App. 3d 626,495 N.E.2d 1207 (1986) (officer qualified as expert based on five years' experience investigating,observing and infiltrating gangs).

Further, in the underlying case, Officer Furlong testified that several of defendant's acquaintanceswere Blackstones. Illinois courts have rejected the automatic assumption of guilt based onmembership in undesirable groups, and a jury should not be permitted to draw insupportableinferences of guilt by association. See People v. Colon, 162 Ill. 2d 23, 642 N.E.2d 118 (1994)(McMorrow, J., dissenting). Without more, the evidence of defendant's gang-relatedacquaintances offered by Officer Furlong to support the motive theory was not sufficientlyprobative to outweigh its prejudicial value. See Smith, 141 Ill. 2d at 59. However, whenpresented along with defendant's statement regarding his membership in the Blackstones, andwitness Royal's testimony regarding the exchange of hostile gang symbols prior to the shooting, aconnection is established between the gang membership or activity and the crime charged, andevidence that defendant's companions were gang members becomes relevant. Smith, 141 Ill. 2dat 58.

Defendant also asserts that the trial court erred when it failed to caution the jury as to the limiteduse of the gang evidence at the time it was introduced. The following instruction was given, overdefense objection, at the close of trial:

"Evidence has been received that the Defendant has been involved in conduct other thanthat charged in the Indictment. This evidence has been received on the issue ofDefendant's motive and may be considered by you only for that limited purpose. It is foryou to determine whether the Defendant was involved in that conduct, and, if so, what weight should be given to this evidence on the issue of motive."

See Illinois Pattern Jury Instructions, Criminal, No. 3.14 (3d ed. 1995) (hereinafter IPI Criminal3d No. 3.14).

Defendant argues that because the trial court failed to advise the jury that the gang affiliationtestimony was to be considered only on the issue of motive, the jury had no way of knowing thatthe "other conduct" referred to in the instruction was defendant's gang membership. Therefore,defendant contends, the jury was free to consider the testimony for substantive purposes.

The committee notes to IPI Criminal 3d No. 3.14 state that at the time the evidence that is thesubject of the instruction is first presented to the jury, the Committee recommends that an oralinstruction should be given unless the defendant objects. IPI Criminal 3d No. 3.14, CommitteeNote, at 13 (Supp. 1996). In support of this recommendation, the committee notes quote thefollowing from People v. Denny, 241 Ill. App. 3d 345, 360-61, 608 N.E.2d 1313 (1993):

" 'Because of the significant prejudice to a defendant's case that the admission of othercrimes evidence usually risks, we hold that the trial court should not only instruct the juryin accordance with IPI Criminal [3d] No. 3.14 at the close of the case, but also orally fromthe bench (unless defendant objects) at the time the evidence is first presented to the jury.' " IPI Criminal 3d No. 3.14, Committee Note, at 13 (Supp. 1996).

We note that, for purposes of remand, other crimes evidence such as gang-related evidence isproperly accompanied by both IPI Criminal 3d No. 3.14 at the close of trial and an oral limitinginstruction at the time the evidence is first presented to the jury, unless the defendant objects, inaccordance with the Denny holding.

III. Remaining Issues

Defendant argues that his conviction should be overturned based on insufficient evidence. However, we find that the record contained sufficient evidence to support the jury's verdict anddo not find that reversal is warranted on this basis.

Specifically, defendant contends that there was no physical evidence linking him to the scene, thesole eyewitness had a motive to lie and was otherwise unreliable and defendant's alibi wasunrefuted. Where a criminal conviction is challenged based on insufficient evidence, a reviewingcourt, considering all of the evidence in the light most favorable to the prosecution, mustdetermine whether any rational fact finder could have found beyond a reasonable doubt theessential elements of the crime. People v. Manning, 182 Ill. 2d 193, 210, 695 N.E.2d 423 (1998);Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactoryas to create a reasonable doubt of the defendant's guilt. Manning, 182 Ill. 2d at 210. A reviewingcourt will not substitute its judgment for that of the trier of fact in determining credibility, weightto be accorded the testimony and reasonable inferences to be drawn from the evidence. People v.Sutherland, 155 Ill. 2d 1, 610 N.E.2d 1 (1992).

Defendant argues that Damon Royal's testimony was the sole evidence linking defendant to thecrime. However, the fact that Royal was the sole eyewitness to testify does not make histestimony less credible. The law is clear that the testimony of a single witness is sufficient toconvict. People v. Smith, 278 Ill. App. 3d 343, 356, 662 N.E.2d 480 (1996). Defendant furtherstates there was no physical evidence such as fingerprints or other forensic evidence that tieddefendant to the car used in the shooting. However, we note that it is not the function of thereviewing court to retry a defendant. People v. Boclair, 129 Ill. 2d 458, 474, 544 N.E.2d 715(1989). Clearly the jury chose to rely on witness testimony and other circumstantial evidence toconvict defendant.

Defendant also challenges Royal's testimony as "unreliable and incredible." When thedetermination of a defendant's guilt or innocence depends upon the credibility of the witness andthe weight to be given his or her testimony, it is for the trier of fact to resolve any conflicts in theevidence. People v. White, 209 Ill. App. 3d 844, 868, 567 N.E.2d 1368 (1991). This court'sjudgment cannot be substituted for that of the jury. People v. Carter, 168 Ill. App. 3d 237, 243-44, 522 N.E.2d 653 (1988). Accordingly, we find there was sufficient evidence to support thejury's verdict.

Defendant also claims the trial court erred in failing to suppress the lineup and his statement topolice as fruits of an illegal arrest. However, no motion to quash the arrest and suppress evidencewas made. We find it unnecessary to address these issues at this juncture and simply note that,upon remand, the defense will have the opportunity to make any motions it deems appropriateregarding these and any other relevant issues.

CONCLUSION

Because the evidence was sufficient to support a finding of guilt beyond a reasonable doubt,defendant faces no risk of double jeopardy and may be retried. See Cruz, 162 Ill. 2d at 374.Therefore, based on the State's failure to comply with discovery rules and the resulting prejudiceto defendant, this cause is remanded for a new trial.

Reversed and remanded.

O'BRIEN, P.J., and TULLY, J., concur.