People v. Murray ( 2019 )

2019 IL 123289IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123289)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DEONTAE X. MURRAY, Appellant.
Opinion filed October 18, 2019.
JUSTICE NEVILLE delivered the judgment of the court.
Justice Burke concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion, joined by Chief Justice
Karmeier.
Justice Garman dissented, with opinion, joined by Justices Thomas and Theis.
OPINION
¶1 Following a jury trial, defendant Deontae X. Murray was convicted of first
degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and unlawful possession of a
firearm by a street gang member (id. § 24-1.8(a)(1)). The circuit court of Boone
County sentenced defendant to consecutive terms of 50 years and 10 years
respectively. On appeal, defendant argued that the evidence was insufficient to
establish that he committed the firearm offense. The appellate court affirmed
defendant’s conviction. 2017 IL App (2d) 150599. We allowed defendant’s petition
for leave to appeal. Ill. S. Ct. R. 315 (eff. Nov. 1, 2017). For the reasons that follow,
we reverse the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 The evidence presented at trial established the following relevant facts. On
April 21, 2013, defendant went to a gas station in Belvidere, Illinois, to purchase
beer. Defendant was accompanied by Marco Hernandez. As defendant and
Hernandez were exiting the gas station store, Max Cox and Richard Herman were
entering. Cox had admitted belonging to the Sureño 13 street gang.
¶4 Defendant and Hernandez waited outside until Cox and Herman eventually
exited the gas station store and walked back to their car, which was parked by a gas
pump. Defendant and Hernandez approached Cox and Herman. Defendant asked
Cox “what’s up” and whether he was “gang banging.” Cox replied “no,” and
defendant lifted up his shirt to reveal a handgun and accused Cox of lying.
According to Cox, Hernandez, who had been standing in front of defendant,
removed the handgun from defendant’s waist band, stepped away, and then held it
behind his own back. Hernandez and Herman began to argue, and Cox told Herman
to “[s]hut the f*** up, he has a gun.” Hernandez pulled out the gun, ran up to
Herman, and shot him in the chest. Herman was taken to a nearby hospital, where
he was pronounced dead.
¶5 A grand jury indicted defendant and Hernandez in connection with Herman’s
murder. Defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2)
(West 2012)), aggravated unlawful use of a weapon (id. § 24-1.6(a)(1), (a)(3)(A),
(d)), and unlawful possession of a firearm by a street gang member (id. § 24-
1.8(a)(1)).
¶6 At defendant’s trial, the State called police detective David Dammon as a
witness. Dammon testified about his experience with the Belvidere Police
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Department beginning in 1996, his position in the street gang unit, and his
specialized training and courses taken in street gangs and gang activity, which
included training dealing with active gangs in Chicago, the Chicago suburbs, and
areas close to Belvidere and Rockford. Dammon also testified that he had been
personally involved in over 400 gang crime investigations and that, while acting as
a gang officer and detective, he had contact with gang members in Belvidere well
over a thousand times and personally interviewed people taken into custody for
various gang offenses well over a thousand times.
¶7 In addition, Dammon generally described how street gangs operate, their
hierarchy, and their use of guns for the protection of drugs, cash, and themselves
from rival gangs. He testified that the Latin Kings and the Sureño 13s are the major
groups of gangs in the Belvidere area and that there is a rivalry between them. He
also testified that the phrase “gang banging” indicates when gang members are
doing gang work, are intimidating people, and are committing crimes for the benefit
of a street gang. He further testified that he had contact with defendant in the context
of prior gang investigations.
¶8 Over an objection made by defendant, Dammon was permitted to testify as an
expert on gang activity. The following testimony was elicited on the State’s direct
examination of Dammon:
“Q. What is a street gang?
A. A street gang is defined by Illinois statute actually. It has to have one of
three things. It’s two or more people with a recognized hierarchy and leader and
their activities are criminal or at least a threat to society.
Q. Is the Latin Kings [a] street gang, is that an organized street gang as
defined by our state Street Gang Omnibus Act?
A. It is.”
¶9 Dammon stated that, as a member of the street gang unit, he gathers intelligence
information from and for street gang databases. He also testified to specific types
of sources that he and other experts in their field rely upon in identifying someone
as a gang member, including law enforcement databases.
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¶ 10 During Dammon’s testimony, the State played for the jury two videos recovered
from defendant’s cell phone recorded two hours prior to the shooting. The videos
show defendant and Anthony Perez outside an apartment complex in Belvidere,
standing in front of graffiti, making hand signals. In one video, Perez is seen
urinating on the side of the building, walking over to the graffiti, and saying aloud
“thirteen K.” Dammon explained that the “13” stands for the Sureño 13 gang and
the K was added to signify a Sureño 13 killer. Dammon testified that the graffiti is
“something that somebody that didn’t get along with the 13’s would put up.”
¶ 11 Defendant also testified. He stated that he had been a member of the Latin Kings
from the age of 13 to 21 but, at the time of trial, he was no longer a member.
¶ 12 The jury convicted defendant of all three offenses, and the circuit court merged
the aggravated unlawful use of a weapon conviction (id. § 24-1.6(a)(1), (a)(3)(A),
(d)) into the unlawful possession of a firearm by a street gang member conviction
(id. § 24-1.8(a)(1)) and imposed a sentence on that offense. Defendant appealed.
¶ 13 On appeal, defendant raised several issues. Relevant here, defendant asserted
that the State failed to prove that the Latin Kings are a “streetgang” as defined by
the Illinois Streetgang Terrorism Omnibus Prevention Act (Act). 740 ILCS 147/10
(West 2012); see 720 ILCS 5/24-1.8(a)(1) (West 2012) (unlawful possession of a
firearm by a street gang member statute providing that the term “street gang” has
the meaning ascribed to it by the Act); 740 ILCS 147/10 (West 2012) (defining
“streetgang,” including the term “course or pattern of criminal activity,” which is
itself separately defined).
¶ 14 Defendant contended that, as in People v. Lozano, 2017 IL App (1st) 142723,
he could not be guilty of unlawful possession of a firearm by a street gang member
because the State did not establish, by way of Dammon’s testimony, that the Latin
Kings committed certain crimes within the relevant time period. Thus, because the
State did not show that the Latin Kings had engaged in a “course or pattern of
criminal activity,” during the requisite time period, the State failed to prove that the
Latin Kings are a “street gang.”
¶ 15 The appellate court rejected defendant’s argument, concluding:
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“[I]n People v. Jamesson, 329 Ill. App. 3d 446, 460 (2002), this court held that
an expert on gangs may opine on the ultimate issue of whether an organization
is a street gang engaged in a course or pattern of criminal activity without
testifying to specific dates or incidents. Here, Dammon testified to the
organizational structure of street gangs in general, and the Latin Kings in
particular, and he opined that the Latin Kings are a street gang within the
meaning of Illinois law. That opinion alone was sufficient to establish the
element that the Latin Kings are a street gang. Further, Dammon testified in the
present tense that gangs use guns to protect their drugs, cash, and members from
rival gangs and that members do whatever is needed to benefit the gang,
including intimidation of people. We believe that the jury could have
reasonably inferred from Dammon’s testimony that the Latin Kings historically
and currently commit felonies.” 2017 IL App (2d) 150599, ¶ 83.
¶ 16 II. ANALYSIS
¶ 17 Before this court, defendant argues that the State failed to prove that the Latin
Kings are a “street gang” as defined by the Act. See 740 ILCS 147/10 (West 2012).
Specifically, defendant contends that the State’s proof was insufficient because its
gang expert did not testify to a relevant time period or, indeed, to any specific
historical crimes committed by the Latin Kings, as required by the Act.
¶ 18 The State maintains it is not required to present evidence of specific crimes
committed by the Latin Kings. The State asserts that, because an expert may
provide an opinion on the ultimate issue in a case, Dammon’s testimony was
sufficient to establish that the Latin Kings are a “street gang,” as defined by the
Act. The State alternatively contends that, if proof of specific crimes were required,
it presented evidence of a “course or pattern of criminal activity” through
defendant’s own crimes.
¶ 19 Where a criminal conviction is challenged based on insufficient evidence, a
reviewing court, considering all of the evidence in the light most favorable to the
prosecution, must determine whether any rational trier of fact could have found
beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); People v. Brown, 2013 IL 114196, ¶ 48; People v.
Cooper, 194 Ill. 2d 419, 430-31 (2000). This standard of review “gives full play to
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the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319; accord People v. Howery, 178 Ill. 2d 1, 38 (1997).
Therefore, a reviewing court will not substitute its judgment for that of the trier of
fact on issues involving the weight of the evidence or the credibility of the
witnesses. Brown, 2013 IL 114196, ¶ 48; Cooper, 194 Ill. 2d at 431. Although these
determinations by the trier of fact are entitled to deference, they are not conclusive.
Rather, a criminal conviction will be reversed where the evidence is so
unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the
defendant’s guilt. Brown, 2013 IL 114196, ¶ 48; People v. Wheeler, 226 Ill. 2d 92,
115 (2007); People v. Ortiz, 196 Ill. 2d 236, 259 (2001).
¶ 20 A. Expert Opinion
¶ 21 We begin by considering defendant’s assertion that Dammon’s testimony was
insufficient to establish that the Latin Kings are a street gang as defined by the Act.
The State counters that it is not required to present evidence of specific crimes
committed by the Latin Kings. We agree with defendant.
¶ 22 In the case at bar, the offense of unlawful possession of a firearm by a street
gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)) requires proof that the Latin
Kings are a “streetgang” as defined in section 10 of the Act. The Act defines
“streetgang” as “any combination *** of 3 or more persons with an established
hierarchy that, through its membership or through the agency of any member
engages in a course or pattern of criminal activity.” 740 ILCS 147/10 (West 2012).
¶ 23 “Course or pattern of criminal activity” is defined, in part, as (1) two or more
gang-related criminal offenses committed in whole or in part within this State;
(2) that at least one such offense was committed after January 1, 1993, the effective
date of the Act; (3) that both offenses were committed within five years of each
other; and (4) that at least one offense involved the solicitation to commit,
conspiracy to commit, attempt to commit, or commission of any offense defined as
a felony or forcible felony under the Criminal Code of 2012. Id.¶ 24 The offense of unlawful possession of a firearm by a street gang member
incorporates by reference the definition of a “streetgang” as set forth in the Act.
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The effect of this reference is the same as though these provisions had been
incorporated into the adopting statute. See People v. Lewis, 5 Ill. 2d 117, 122 (1955)
(finding it is a familiar legislative process to incorporate one statute into another by
reference); In re Jarquan B., 2017 IL 121483, ¶ 61 (Burke, J., specially concurring,
joined by Kilbride, J.). The incorporation of the definition of a “streetgang” into the
terms of the offense signifies that the requirements in the Act are elements of the
offense. Lewis, 5 Ill. 2d at 122. Thus, in addition to possessing a gun and being a
member of a gang, proof of defendant’s guilt of the offense mandates that the State
present evidence that establishes a “course or pattern of criminal activity” (1) that
the Latin Kings were involved in two or more gang-related criminal offenses;
(2) that at least one such offense was committed after January 1, 1993; (3) that both
offenses were committed within five years of each other; and (4) that at least one
offense involved the solicitation to commit, conspiracy to commit, attempt to
commit, or commission of any offense defined as a felony or forcible felony. 740
ILCS 147/10 (West 2012).
¶ 25 Briefly summarized, Dammon’s relevant testimony established that, since
1996, he had been a member of the Belvidere Police Department’s street gang unit
with specialized training. As a member of that unit, his responsibilities included
investigations and interviews with gang members and enforcing laws for crimes
that are being committed by gang members. He also testified to his expertise with
gangs in general and familiarity not only with the local Latin Kings but with
defendant himself.
¶ 26 Furthermore, Dammon was shown data sheets from the Belvidere Police
Department’s gang database and explained that such documents are one type of
evidence upon which gang experts rely to identify someone as a gang member.
When asked about other evidence experts in his field rely upon, Dammon identified
the Law Enforcement Automated Data System (LEADS), the Illinois Department
of Corrections Information System, previous narcotics cases, notes from such
cases, and notes from interviewing other gang members or persons who are
affiliated with gangs that have previously given reliable and reputable information.
Finally, Dammon stated that the Latin Kings are a street gang as defined by the Act.
¶ 27 The State maintains that Dammon’s opinion that the Latin Kings are a “street
gang” was sufficient, even though his direct testimony did not disclose any specific
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crime evidence. The State asserts that, once Dammon provided his expert opinion
on the street gang element, the burden shifted to defendant to cross-examine
Dammon on the facts underlying that opinion. That approach, however,
erroneously shifts the burden of proof and requires defendant to disprove the State’s
case before it has established the elements of the offense of unlawful possession of
a firearm by a street gang member.
¶ 28 The right to due process, as guaranteed by the United States and Illinois
Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2), safeguards an
accused from conviction except upon proof beyond a reasonable doubt of every fact
necessary to prove each element that constitutes the crime charged. See Jackson,
443 U.S. at 315-16; Brown, 2013 IL 114196, ¶ 48; People v. Cunningham, 212 Ill.
2d 274, 278 (2004). An essential element of proof to sustain a conviction cannot be
inferred but must be established. People v. Mosby, 25 Ill. 2d 400, 403 (1962). It is
axiomatic that the State carries the burden of proving each element of a charged
offense beyond a reasonable doubt. Brown, 2013 IL 114196, ¶ 52. Such burden
rests on the State throughout the entire trial and never shifts to the defendant.
Howery, 178 Ill. 2d at 32. Therefore, the defendant is under no obligation to
produce any evidence, and the burden of proof never shifts to the defendant but
remains the responsibility of the State throughout the trial. People v. Weinstein, 35
Ill. 2d 467, 470 (1966); People v. Kelley, 2015 IL App (1st) 132782, ¶ 62.
¶ 29 The State concedes, as it must, that Dammon’s direct testimony did not disclose
the specific crime evidence required by the Act. Further, the State finds it
significant that defendant did not cross-examine Dammon regarding his opinion.
¶ 30 The State’s attempt to shift the burden of proof to defendant, excusing it from
being required to prove the elements of the charged offense, violates defendant’s
right to due process. See Jackson, 443 U.S. at 315-16. In general, the purpose of
cross-examination is to highlight the flaws and omissions in the evidence presented
during direct examination. Leonardi v. Loyola University of Chicago, 168 Ill. 2d
83, 105 (1995). As a practical matter, cross-examination is necessary only where
the flaws and omissions are not readily apparent from the previous testimony on
direct examination. In a criminal case, cross-examination of the State’s witnesses
is not intended to serve as an alternative means of establishing the elements of the
offense beyond a reasonable doubt. Mosby, 25 Ill. 2d at 403. If the State fails to
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present evidence that establishes the elements of the charged offense, cross-
examination by the defendant is not required. Howery, 178 Ill. 2d at 32. Because
the State bears the burden of proof, it similarly bears the consequences of any
omission of proof.
¶ 31 In addition, we observe that Illinois Rule of Evidence 705 (eff. Jan. 1, 2011)
unambiguously requires that Dammon articulate the reasons for his opinion. Rule
705 provides that “[t]he expert may testify in terms of opinion or inference and give
reasons therefore without first testifying to the underlying facts or data.” Id. Here,
Dammon generally described in broad terms the types of information and facts on
which his opinion was based, but he never explained his reasons as to why that
information supported his opinion. Admittedly, Dammon was not obligated to bring
forth the underlying facts and data upon which his opinion was premised, but
merely identifying the source of those facts and data, without explaining the reasons
for his opinion, fails to prove the elements of the offense of unlawful possession of
a firearm by a street gang member.
¶ 32 In contrast to the State’s approach in this case, the correct application of Rule
705 is illustrated by People v. Fountain, 2016 IL App (1st) 131474, People v.
Simpson, 2015 IL App (1st) 130303, and People v. Negron, 2012 IL App (1st)
101194. In each of these cases, all of the requirements of Rule 705 have been
satisfied. Although these cases are based on the admissibility of the evidence, rather
than the sufficiency of the evidence, we find the reasoning instructive regarding the
interplay of Rule 705 and presentation of expert testimony in a criminal case.
¶ 33 In the aforementioned cases, the appellate court noted that the experts testified
on an ultimate issue or conclusion, detailed their analytic process and methodology,
and also thoroughly explained the reasons for their opinions. Fountain, 2016 IL
App (1st) 131474, ¶¶ 65-67; Simpson, 2015 IL App (1st) 130303, ¶¶ 14, 38;
Negron, 2012 IL App (1st) 101194, ¶¶ 38, 40. In each case, the appellate court
acknowledged that Rule 705 permits an expert to testify in terms of opinion or
inference and to give reasons therefor without divulging the underlying facts and
data for it, which then shifts the burden to the opposing party to explore the same
on cross-examination. Fountain, 2016 IL App (1st) 131474, ¶ 64 (applying Illinois
Rule of Evidence 705 (eff. Jan. 1, 2011)); Simpson, 2015 IL App (1st) 130303, ¶ 37
(same); Negron, 2012 IL App (1st) 101194, ¶ 42 (same). However, in all of these
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cases, the defense engaged in rigorous cross-examination eliciting the flaws and
omissions in the experts’ reasons only after the experts’ direct testimony fully
explained the reasons and basis for their opinions. Fountain, 2016 IL App (1st)
131474, ¶ 68; Simpson, 2015 IL App (1st) 130303, ¶ 38; Negron, 2012 IL App (1st)
101194, ¶ 42.
¶ 34 This case presents a distinctly different circumstance. Here, the State never
satisfied the first condition of Rule 705, which requires testimony explaining the
reasons for the expert’s opinion. Ill. R. Evid. 705 (eff. Jan. 1, 2011); see People v.
Mpulamasaka, 2016 IL App (2d) 130703, ¶ 89 (an expert’s opinion is only as valid
as the reasons for the opinion). This condition must be fulfilled prior to shifting the
burden to defendant to explore the underlying facts or data on cross-examination.
Dammon only provided a general reference to the sources of the underlying facts
and data. He never explained the nexus between (1) LEADS, the Illinois
Department of Corrections Information System, gang databases, or notes from
other cases and (2) how this information established that the Latin Kings were a
street gang engaged in a “course or pattern of criminal activity.” He described the
nature of his experience and familiarity with the databases, but he never explained
the reasons or information and facts that supported his opinion, and he never
connected his reasons or the information and facts to defendant to satisfy the
statutory definition of “street gang.” The State also failed to meet its burden because
it failed to present evidence that established two specific crimes, one of which must
involve the solicitation to commit, conspiracy to commit, attempt to commit, or
commission of any offense defined as a felony or forcible felony under the Criminal
Code of 2012, within the relevant time period. 740 ILCS 147/10 (West 2012).
Therefore, because Dammon’s direct testimony was devoid of any “course or
pattern of criminal activity” evidence, the offense of unlawful possession of a
firearm by a street gang member had not been established, and cross-examination
by defendant was not required.
¶ 35 Further, we note that, with regard to Dammon’s reliance on gang databases for
his opinion, Illinois Rule of Evidence 803(8) (eff. Apr. 26, 2012) provides, in
relevant part:
“The following are not excluded by the hearsay rule ***:
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*** Records, reports, statements, or data compilations, in any form, of
public offices or agencies, setting forth (A) the activities of the office or agency,
or (B) matters observed pursuant to duty imposed by law as to which matters
there was a duty to report *** unless the sources of information or other
circumstances indicate lack of trustworthiness.”
Pursuant to Illinois Rule of Evidence 201, we take judicial notice of the fact that
the City of Chicago inspector general’s April 2019 review of the Chicago Police
Department’s “Gang Database” found that the Chicago Police Department (CPD)
lacks sufficient controls for generating, maintaining, and sharing gang-related data;
CPD’s gang information practices lack procedural fairness protections; CPD’s gang
designations raise significant quality concerns; and CPD’s practices and lack of
transparency regarding its gang designations strain police-community relations,
indicating that the gang database lacks trustworthiness. See Ill. R. Evid. 201(b) (eff.
Jan. 1, 2011) (“A judicially noticed fact must be one not subject to reasonable
dispute in that it is *** capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”); Ill. R. Evid. 201(c)
(eff. Jan. 1, 2011) (“A court may take judicial notice, whether requested or not.”);
see also Office of Inspector General, City of Chicago, Review of the Chicago Police
Department’s “Gang Database” (Apr. 11, 2019), https://igchicago.org/2019/04/
11/review-of-the-chicago-police-departments-gang-database [https://perma.cc/
85VR-5YKN].
¶ 36 Here, we find that the State presented no evidence of the Latin Kings’
involvement in specific crimes as required by the Act. See 740 ILCS 147/10 (West
2012). Dammon did not identify the Latin Kings’ commission of particular offenses
on certain dates. Furthermore, the State provided no other witnesses who testified
to specific offenses committed by the Latin Kings during the relevant time period
that would satisfy the statutory definition of a “streetgang.” Expert opinions and
inferences testified to under Rule 705, without testimony regarding specific crimes
committed by the Latin Kings, do not establish a violation of the Act. As stated
earlier, an essential element of proof to sustain a conviction cannot be inferred but
must be established. Mosby, 25 Ill. 2d at 403.
¶ 37 The State’s approach in this case violated the constitution because it shifted the
burden to defendant to disprove an element of the offense. See Brown, 2013 IL
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114196, ¶ 52 (holding the State always has the burden of proving all of the elements
of the offense); Howery, 178 Ill. 2d at 32 (burden rests on the State throughout the
entire trial and never shifts to the defendant). Thus, under the circumstances here,
we find that the State failed to meet its burden of presenting evidence that
established that the Latin Kings meet the statutory definition of a “streetgang.” See
Patterson v. New York, 432 U.S. 197, 210 (1977) (holding that “the Due Process
Clause requires the prosecution to prove beyond a reasonable doubt all of the
elements included in the definition of the offense of which the defendant is
charged”).
¶ 38 Finally, having examined the appellate court opinions that excused the State
from proving all the elements of the offense of unlawful possession of a firearm by
a street gang member, we observe that these decisions are in direct contravention
of the express language in the Act. The Act requires that at least one of the two
required offenses be committed after January 1, 1993, and that the offenses had
been committed within five years of each other. 740 ILCS 147/10 (West 2012). The
primary objective in construing a statute is to ascertain and give effect to the intent
of the legislature. People v. Casas, 2017 IL 120797, ¶ 18. The most reliable
indicator of legislative intent is the language of the statute, given its plain and
ordinary meaning. People v. Reese, 2017 IL 120011, ¶ 30.
¶ 39 The language of the Act definitively implements the legislative intent. During
Senate debate on creating the offense at issue here, lawmakers expressed concern
about the possibility of unfairly punishing individuals based on prior or tenuous
gang affiliation. 96th Ill. Gen. Assem., Senate Proceedings, Oct. 29, 2009, at 154-
55 (statements of Senator Raoul). Further, there was an inquiry as to whether the
statute contained a “very clear definition of what a gang member is.” Id. at 157
(statements of Senator Rutherford). In response, Senator Millner stated that the
defendant must be “actively engaged in the criminal enterprise” and “the burden of
proof from the State’s attorney’s office *** has to be very, very high. They have to
prove it up. And *** it has to be part of the Illinois Streetgang Terroris[m] Omnibus
[Prevention] Act.” Id. at 158 (statements of Senator Millner). He stated that the
definition is “probably two hundred plus words defining what a street gang member
is and what it takes to be actively engaged in a criminal enterprise,” again reiterating
that “the burden of proof is very high.” Id. at 158-59 (statements of Senator
Millner).
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¶ 40 Turning to the appellate decisions, in People v. Jamesson, the court noted that
the detective’s testimony specified that he began having contact with the street gang
“ ‘a couple of years ago’ ” and the street gang was involved with aggravated
batteries. 329 Ill. App. 3d 446, 460-61 (2002). The court concluded that the
reference to “a couple of years ago” was adequate to establish that the offenses
occurred within five years of each other and took place after the effective date of
the Act, thus satisfying the elements of being a “street gang.” Id. at 461.
¶ 41 In a more recent appellate opinion, People v. Berrios, 2018 IL App (2d) 150824,
the court, relying on Jamesson and the appellate court’s decision in this case,
reasoned that it had “ ‘previously held that an expert on gangs may opine on the
ultimate issue of whether an organization is a street gang engaged in a course or
pattern of criminal activity without testifying to specific dates or incidents.’ ” Id.
¶ 22 (quoting People v. Murray, 2017 IL App (2d) 150599, ¶ 83). The Berrios court
observed that the expert testified that he had been with the gang unit for three years
and that the gang unit “ ‘track[s]’ ” the Latin Kings and other street gangs. Id. In so
stating, the court determined that the expert had expressed his opinion that the Latin
Kings are, in fact, a street gang. Id. The court stated that under our precedents
nothing more was required. Id. The Berrios court acknowledged that the expert’s
testimony concerning the Latin Kings could have been more comprehensive. Id.However, the court found that the evidence was sufficient to support a reasonable
determination that the Latin Kings are a street gang having engaged in a course or
pattern of criminal activity within the meaning of section 10 of the Act. Id.¶ 42 It is apparent that some appellate court decisions, relying on the appellate
court’s decision in this case and Jamesson, now require no testimony on “course or
pattern of criminal activity” establishing (1) that a street gang was involved in two
or more gang-related criminal offenses; (2) that at least one such offense was
committed after January 1, 1993; (3) that both offenses were committed within five
years of each other; and (4) that at least one offense involved the solicitation to
commit, conspiracy to commit, attempt to commit, or commission of any offense
defined as a felony or forcible felony. 740 ILCS 147/10 (West 2012). It is also clear
from the legislative history that the legislature intended to hold the State to a “very,
very high” burden when establishing each and every element of the offense,
including the definition of “streetgang,” which requires proof of “a course or pattern
of criminal activity.” See 96th Ill. Gen. Assem., Oct. 29, 2009, at 158 (statements
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of Senator Millner); 740 ILCS 147/10 (West 2012). The current trend in the
appellate court of excusing proof of each element of the offense is in direct conflict
with our precedents and the language of the Act. Brown, 2013 IL 114196, ¶ 52;
Howery, 178 Ill. 2d at 32; Mosby, 25 Ill. 2d at 403; 740 ILCS 147/10 (West 2012).
Therefore, it cannot be said that proof of specific crimes is not required.
Accordingly, to the extent that Jamesson and Berrios stated otherwise, they are
overruled.
¶ 43 In support of its assertion that evidence of specific crimes committed by the
Latin Kings is not required, the State relies on People v. Wright, 2017 IL 119561.
The State maintains that, as in Wright, it is not constrained by the statutory
requirements regarding the proof necessary to establish an element of defendant’s
offense. We find, however, that this case does not establish an exemption from
proving statutory requirements.
¶ 44 In Wright, the State had to prove that the defendant or someone he was
accountable for was armed with a firearm as defined by statute, which defined a
firearm, in pertinent part, as “ ‘any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an explosion, expansion
of gas or escape of gas’ but specifically excluding, among other items, any
pneumatic gun, spring gun, paint ball gun, or BB gun.” Id. ¶ 71 (quoting 430 ILCS
65/1.1 (West 2012)). The court held that the jury was entitled to believe the
testimony of three lay witnesses who observed “a semiautomatic,” “an ‘actual
firearm,’ ” “the handle of a gun in the waistband of his pants,” and “a 9 millimeter
pistol.” Id. ¶ 76. The testimony was sufficient to find the codefendant was armed
with a firearm during the commission of the robbery, and thus, defendant was guilty
beyond a reasonable doubt. Id. ¶ 77. The State observes that, in Wright, it was not
required to present evidence that the firearm used in the crime met the technical
statutory definition of a firearm in all respects. The State contends that, as in Wright,
it should not be required to prove its case with a particular type of evidence.
¶ 45 We find this argument unavailing, as Wright is clearly distinguishable. In
Wright, there were three eyewitnesses testifying to characteristics of a physical
object. Id. ¶ 76. By contrast, in the case at bar, a street gang as defined by the Act
requires proof of each element codified in the statute, but there was no witness
testimony providing evidence to prove the Latin Kings meet the statutory definition
- 14 -
of a street gang. Accordingly, we reject the State’s assertion that Wright supports
the argument that it is not required to present evidence of specific crimes committed
by the Latin Kings in the relevant time period.
¶ 46 B. Defendant’s Own Crimes
¶ 47 The State alternatively contends that, if proof of specific crimes were required,
it presented evidence of a “course or pattern of criminal activity” through
defendant’s own crimes. The State maintains that the jury heard evidence of two or
more “gang-related” offenses occurring on the day of the murder. The State relies
on defendant’s convictions for first degree murder and aggravated unlawful use of
a weapon, maintaining that the crimes were “gang-related” as defined by the Act.
740 ILCS 147/10 (West 2012).
¶ 48 The Act provides that “gang-related” means any criminal activity directed by
any gang leader or authority with the intent to (1) increase the gang’s size,
membership, prestige, dominance, or control in any geographical area or
(2) provide the gang with any advantage in a criminal market sector or (3) exact
revenge or retribution for the gang or (4) obstruct justice or (5) benefit the gang. Id.
¶ 49 The State’s contention, that reference to defendant’s own criminal behavior on
the day of the shooting as “gang-related” and to defendant’s alleged criminal
behavior is sufficient to prove that the Latin Kings are a street gang, is without
merit. At the time the evidence was presented to the jury, defendant was only
charged with the crimes; there had yet to be any determination whether defendant
committed the offenses as charged or that they related in any way to the Latin
Kings. Further, the alleged crimes of which defendant was charged and ultimately
convicted cannot serve as evidence to establish an element of one of those charged
crimes. Consequently, we reject the State’s contention that, at the time of trial, these
charged crimes were sufficient to establish a “course or pattern of criminal activity”
as defined by the Act. See id.; Mosby, 25 Ill. 2d at 403.
¶ 50 The State also argues that it established a “course or pattern of criminal activity”
by presenting evidence of “one or more acts of criminal defacement of property
under section 21-1.3 of the Criminal Code of 2012, if the defacement includes a
sign or other symbol intended to identify the streetgang.” See 720 ILCS 5/21-1.3
- 15 -
(West 2012); 740 ILCS 147/10 (West 2012). The State contends that, after viewing
defendant’s cell phone videos, the jury could have inferred that defendant and Perez
created the graffiti.
¶ 51 Again, we find this argument to be without merit. The State did not prove “one
or more acts of criminal defacement of property” when it failed to present a witness
who testified as to who created the graffiti or when it was created. When the State’s
witnesses failed to testify that they were present when the property was defaced,
the jury had no evidence from which it could infer that the defendant defaced the
property. In addition, because a “course or pattern of criminal activity” is an
element of the offense, which must be established and cannot be proved by
inference (Mosby, 25 Ill. 2d at 403), the evidence was insufficient to prove
defendant guilty of the offense. Accordingly, the State failed to meet its burden of
proving that the Latin Kings meet the statutory definition of a “street gang.”
¶ 52 III. CONCLUSION
¶ 53 In conclusion, when we consider the evidence in the light most favorable to the
State, we find that the State did not present evidence that established the elements
codified in the statute. At trial, there was no “course or pattern of criminal activity”
testimony (1) that the Latin Kings were involved in two or more gang-related
criminal offenses; (2) that at least one such offense was committed after January 1,
1993; (3) that both offenses were committed within five years of each other; and
(4) that at least one offense involved the solicitation to commit, conspiracy to
commit, attempt to commit, or commission of any offense defined as a felony or
forcible felony. 740 ILCS 147/10 (West 2012). Consequently, we hold that the State
failed to prove that the Latin Kings were a street gang, as defined by the Act.
Defendant’s conviction and sentence for unlawful possession of a firearm by a
street gang member are vacated. For the foregoing reasons we reverse that portion
of the judgment of the appellate court affirming defendant’s conviction for that
offense and remand to the circuit court for sentencing on the conviction for
aggravated unlawful use of a weapon. 720 ILCS 5/24-1.8(a)(1) (West 2012); id.§ 24-1.6(a)(1), (a)(3)(A), (d).
¶ 54 Appellate court judgment reversed.
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¶ 55 Circuit court judgment reversed in part and remanded with directions.
¶ 56 JUSTICE KILBRIDE, specially concurring:
¶ 57 I agree with the result and most of the majority’s analysis, but I do not join its
discussion of Illinois Rule of Evidence 705 (eff. Jan. 1, 2011), concluding that the
rule “unambiguously requires that [Detective] Dammon articulate the reasons for
his opinion.” See supra ¶ 31. That discussion creates unnecessary tension between
this decision and our long-standing rule in Wilson v. Clark, 84 Ill. 2d 186 (1981). I
believe the State’s failure to establish a prima facie case on the count charging
defendant with the unlawful possession of a firearm as a street gang member
negates any need to address either Rule 705 or Wilson.
¶ 58 In Wilson, we adopted Federal Rules of Evidence 703 and 705 and, as our
subsequent case law explains, declared
“that, at trial, ‘an expert may give an opinion without disclosing the facts
underlying that opinion.’ Wilson, 84 Ill. 2d at 194. ‘Under Rule 705 the burden
is placed upon the adverse party during cross-examination to elicit the facts
underlying the expert opinion.’ Wilson, 84 Ill. 2d at 194. Thus, an expert
testifying at trial may offer an opinion based on facts not in evidence, and the
expert is not required on direct examination to disclose the facts underlying the
expert’s opinion. Robidoux v. Oliphant, 201 Ill. 2d 324, 334 (2002).” People v.
Williams, 238 Ill. 2d 125, 137 (2010), aff’d, 567 U.S. 50 (2012).
In contrast, the majority here concludes that Rule 705 “unambiguously requires”
experts to explain the reasons underlying their opinions, creating tension with our
long-standing statements in Wilson and its progeny, but does not harmonize the two
views.
¶ 59 For its part, the dissent maintains that, under Wilson, Dammon’s expert opinion
was “proper” (infra ¶ 86) and could permissibly be based on facts that are not
substantive evidence (infra ¶ 81). While I do not disagree with those statements, I
believe they miss the point. The critical question here is not the propriety of
admitting the expert testimony but whether that testimony is sufficient to establish
part of the State’s prima facie case.
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¶ 60 In my view, we need not consider how, or even if, Rule 705 and Wilson apply.
This court adheres to the principle of party presentation, acting as a neutral arbiter
of issues that have been framed by the parties to the controversy. That principle is
grounded in the sound rationale that, in our adversarial system of justice, “ ‘the
parties know what is best for them, and are responsible for advancing the facts and
arguments entitling them to relief.’ *** ‘Counsel almost always know a great deal
more about their cases than we do.’ ” Greenlaw v. United States, 554 U.S. 237, 244
(2008) (quoting Castro v. United States, 540 U.S. 375, 386 (Scalia, J., concurring
in part and concurring in the judgment, joined by Thomas, J.), and United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in the denial
of rehearing en banc)).
“ ‘Were we to address these unbriefed issues, we would be forced to speculate
as to the arguments that the parties might have presented had these issues been
properly raised before this court. To engage in such speculation would only
cause further injustice; thus we refrain from addressing these issues
sua sponte.’ ” People v. Givens, 237 Ill. 2d 311, 324 (2010) (quoting People v.
Rodriguez, 336 Ill. App. 3d 1, 14 (2002)).
Here, the parties’ briefs did not even mention Rule 705 or Wilson. That absence of
any written argument strongly suggests that the parties believe their consideration
is unnecessary for a proper resolution of this appeal, and I agree.
¶ 61 Nonetheless, after reviewing the record, I conclude that the State failed to offer
up sufficient evidence to make its prima facie case. Its reliance on Detective
Dammon’s testimony failed to establish critical parts of the State’s prima facie case
by providing some evidence that the Latin Kings met the statutory definition of a
“street gang” expressly incorporated into the charged offense. As defined by our
legislature, the offense of unlawful possession of a firearm by a street gang member
requires the State to prove beyond a reasonable doubt that the defendant knowingly:
“(1) possesses, carries, or conceals on or about his or her person a
firearm and firearm ammunition while on any street, road, alley, gangway,
sidewalk, or any other lands *** and has not been issued a currently valid
Firearm Owner’s Identification Card and is a member of a street gang[.] ***
***
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(c) For purposes of this Section:
‘Street gang’ or ‘gang’ has the meaning ascribed to it in Section 10 of
the Illinois Streetgang Terrorism Omnibus Prevention Act [(Streetgang Act)
(740 ILCS 147/1 et seq. (West 2012))].” 720 ILCS 5/24-1.8(a)(1), (c) (West
2012).
¶ 62 The definition statutorily ascribed to “street gang” in the Streetgang Act states
that the term “means any combination, confederation, alliance, network,
conspiracy, understanding, or other similar conjoining, in law or in fact, of 3 or
more persons with an established hierarchy that, through its membership or through
the agency of any member engages in a course or pattern of criminal activity.”
(Emphasis added.) 740 ILCS 147/10 (West 2012). In turn, the Streetgang Act
defines a “course or pattern of criminal activity,” the key language in this
controversy, as
“2 or more gang-related criminal offenses committed in whole or in part within
this State when:
(1) at least one such offense was committed after the effective date of
this Act;
(2) both offenses were committed within 5 years of each other; and
(3) at least one offense involved *** any offense defined as a felony or
forcible felony under the Criminal Code of 1961 or the Criminal Code of
2012.” 740 ILCS 147/10 (West 2012).
It is in establishing that statutorily defined term that the State failed to make its
critical prima facie showing.
¶ 63 It goes without saying that the State alone bears the burden of providing at least
some evidence supporting each and every element of the charged offense needed
to make its prima facie case. Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55 (1980).
“According to Black’s Law Dictionary, ‘prima facie evidence’ is
‘[e]vidence that will establish a fact or sustain a judgment unless contradictory
evidence is produced.’ (Emphasis added.) Black’s Law Dictionary 598 (8th ed.
2004). Likewise, ‘prima facie’ is defined as ‘[s]ufficient to establish a fact ***
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unless disproved or rebutted.’ (Emphasis added.) Black’s Law Dictionary 1228
(8th ed. 2004).” People v. Woodrum, 223 Ill. 2d 286, 309-10 (2006).
Thus, only after the State has presented a prima facie case for each of the elements
of the charged offense is the burden of production shifted to the defendant.
Woodrum, 223 Ill. 2d at 310. Here, the State failed to make its requisite initial
showing that the Latin Kings “engage[d] in a course or pattern of criminal activity.”
(Emphasis added.) 740 ILCS 147/10 (West 2012). Consequently, it did not present
sufficient evidence to convict defendant of unlawful possession of a firearm by a
street gang member.
¶ 64 The only evidence the State offered to overcome its burden of showing the Latin
Kings met the legislatively mandated prerequisites for a “street gang” was the
testimony of Detective Dammon. He testified widely about his extensive training
and professional experience working with and interviewing gang members as well
as investigating gang culture and crimes, demonstrating his indisputable expertise
in those matters. He also expressed the general opinion that the Latin Kings are “an
organized street gang as defined by our state [Streetgang Act].” Presumably to
bolster that opinion, he added that gang members commit crimes and fight rival
gangs to benefit their gang, that “[s]treet gangs’ primary means of income is drug
sales,” and that members “need weapons to protect not only the drugs but the cash
and themselves.” He did not, however, offer any specific evidence on each of the
legislatively mandated factors needed to fulfill section 10’s strictly delineated
definition of a “street gang.” For instance, to be a street gang the group must have
engaged in a “course or pattern of criminal activity,” requiring evidence that it
committed two gang-related criminal offenses within a single five-year period.
Mere supposition or “common knowledge” that the Latin Kings not infrequently
commit crimes cannot replace substantive evidence, and absolutely nothing in
Detective Dammon’s testimony comes close to making either prong of that
mandatory showing. His broad general references to the commission of crimes by
street gangs to generate income lack the specificity expressly mandated by our
legislature. For that reason alone, this court should be compelled to conclude that
the State failed to make the prima facie showing needed to shift the burden of
production to the defendant and, ultimately, to convict him of unlawfully
possessing a firearm as a street gang member. If that framework is applied, any
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discussion of Rule 705 or Wilson is both gratuitous and counterproductive. For that
reason, I cannot join in the majority’s Rule 705 analysis.
¶ 65 I believe that one other facet of the holding in this case merits further
explanation. Admittedly, the conclusion that the State failed to prove that defendant
was a street gang member after openly acknowledging that he was a member of the
Latin Kings is, at best, counterintuitive. In enacting the relevant statutes, however,
our legislature did not limit the State’s evidentiary burden to showing only that a
particular group is commonly understood to be a street gang. Instead, the legislature
carefully prescribed specific characteristics that the State had to prove via
substantive evidence, thus imposing a far greater burden than could be overcome
by reliance on mere supposition and common belief. See 740 ILCS 147/10 (West
2012) (enumerating the specific criteria defining a “street gang” for purposes of the
relevant statutes). The objective criteria mandated for the State’s requisite
prima facie showing demands affirmative evidence that the defendant was a
member of a street gang as it is painstakingly defined by statute. The State simply
failed to make that showing here.
¶ 66 While that conclusion undoubtedly conflicts with the likely everyday wisdom
that the Latin Kings are, in fact, the epitome of a street gang, this court cannot
permit commonly held perceptions to take the place of substantive evidence when
addressing the sufficiency of the State’s prima facie case. To make that showing,
the State must offer evidence on each of the objective statutory criteria expressly
enacted by our legislature. Kokinis, 81 Ill. 2d at 154-55. It is not enough simply to
present evidence of some, or even nearly all, of those criteria. To overlook a lesser
showing to comport with commonly held perceptions would fatally undermine the
legitimacy and constitutionality of our criminal justice system. “Close enough” can
never be the standard used to determine whether the State has proven its prima facie
case in a criminal prosecution. The constitution demands more, and it is both the
duty and honor of this court to preserve the full complement of protections afforded
to the citizens of Illinois whenever the State seeks to interfere with their liberty via
criminal prosecution. See Speiser v. Randall, 357 U.S. 513, 526 (1958) (explaining
that “[d]ue process commands that no man shall lose his liberty unless the
Government has borne the burden of producing the evidence and convincing the
factfinder of his guilt”).
- 21 -
¶ 67 Here, holding the State’s feet to the fire by requiring it to present a full
prima facie case also does not unduly add to its burden. Given Detective Dammon’s
obvious expertise and expansive knowledge of street gangs and their workings, the
addition of a few questions designed to elicit evidence on each component of the
requisite statutory definition during the State’s direct examination would,
realistically, not have worked any additional hardship. And even if it did, we cannot
alter the burden the legislature has chosen to impose on the State when it seeks to
obtain a conviction for the unlawful possession of a firearm by a street gang
member. Any change in that burden must be left to the General Assembly. People
v. Trainor, 196 Ill. 2d 318, 342 (2001).
¶ 68 In sum, I conclude that the State failed to present a prima facie case that
defendant was a street gang member at the time that he unlawfully possessed a gun
in this case. That conviction, therefore, must be reversed. Accordingly, I concur in
the majority’s judgment and analysis, with the exception of the portion addressing
Rule 705.
¶ 69 CHIEF JUSTICE KARMEIER joins in this special concurrence.
¶ 70 JUSTICE GARMAN, dissenting:
¶ 71 The majority’s opinion stands in contravention of controlling law,
mischaracterizes the evidence presented at defendant’s trial, and adopts an absurd
interpretation of the statute that will require the introduction of prejudicial evidence
to convict a defendant based on crimes he personally may well have not committed
or been involved in. Because I would find that Detective Dammon’s expert
testimony was sufficient to prove that the Latin Kings are a street gang, I
respectfully dissent.
¶ 72 “[A] witness, whether expert or lay, may provide an opinion on the ultimate
issue in a case.” Richardson v. Chapman, 175 Ill. 2d 98, 107 (1997). Because the
trier of fact is not required to accept an expert’s conclusion, the testimony does not
usurp the province of the jury. Id. This concept applies in both civil and criminal
contexts. Zavala v. Powermatic, Inc., 167 Ill. 2d 542 (1995). Furthermore, an
expert’s opinion on an ultimate issue may satisfy the State’s burden of proof beyond
a reasonable doubt. See, e.g., In re Commitment of Fields, 2014 IL 115542, ¶¶ 20-
- 22 -
27 (in sexually violent person commitment proceeding, expert testimony satisfied
the elements that the respondent had a mental disorder and that said disorder made
it substantially probable that he would engage in acts of sexual violence).
¶ 73 Nonetheless, the majority concludes that, because Detective Dammon did not
testify to the specific component facts necessary to show that the Latin Kings
engage in a “course or pattern of criminal activity,” his opinion on an ultimate issue,
i.e., whether the Latin Kings are a “street gang,” fails. However, the majority’s
reasoning does not comport with this court’s precedent or the Illinois Rules of
Evidence.
¶ 74 Noticeably absent from the majority’s analysis is any discussion of this court’s
decision in Wilson v. Clark, 84 Ill. 2d 186 (1981). In Wilson, this court expressly
adopted Rules 703 and 705 of the Federal Rules of Evidence. Id. at 196. When
adopted in Wilson, Federal Rule of Evidence 703 stated:
“ ‘The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to him at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.’ ” Id. at 193 (quoting Fed. R. Evid.
703).
¶ 75 Wilson observed that Federal Rule of Evidence 703 allows expert opinions that
are based on facts not in evidence. Id. “[T]he key element in applying Federal Rule
703 is whether the information upon which the expert bases his opinion is of a type
that is reliable.” Id. (“the rule applies to expert opinions based on firsthand
observation, hypothetical questions, or presentation of data outside the court”).
¶ 76 With regard to Federal Rule of Evidence 705, Wilson explained that “an expert
may give an opinion without disclosing the facts underlying that opinion.” Id. at
194. Federal Rule of Evidence 705 provides:
“ ‘The expert may testify in terms of opinion or inference and give his
reasons therefor without prior disclosure of the underlying facts or data, unless
the court requires otherwise. The expert may in any event be required to
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disclose the underlying facts or data on cross-examination.’ ” Id. (quoting Fed.
R. Evid. 705).
¶ 77 Critically, “[u]nder Rule 705[,] the burden is placed upon the adverse party
during cross-examination to elicit the facts underlying the expert opinion.” Id.¶ 78 Under Rule 703 then, such underlying facts or data may be admitted “ ‘for the
limited purpose of explaining the basis for the expert witness’ opinion.’ ”
(Emphasis added.) City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990) (quoting
People v. Anderson, 113 Ill. 2d 1, 12 (1986)). This is because Federal Rule of
Evidence 703 “did not create an exception to the hearsay rule.” Id. It is within the
trial judge’s discretion to ascertain whether the underlying facts or data upon which
an expert’s opinion is based are of a type reasonably relied upon by experts in the
same field. Id. at 186. Consequently, it is also within the trial judge’s discretion
whether to permit an expert witness to testify to such facts or data. Id. For example,
the trial judge could determine that the “probative value in explaining the expert’s
opinion pales beside its likely prejudicial impact or its tendency to create
confusion.” Anderson, 113 Ill. 2d at 12.
¶ 79 As of January 1, 2011, this court adopted the Illinois Rules of Evidence. Ill. R.
Evid. art. I (eff. Jan. 1, 2011). Relevant here, the language of Illinois Rule of
Evidence 703 is nearly identical to that of the preamendment Federal Rule of
Evidence 703 that was adopted in Wilson. See Ill. R. Evid. 703 (eff. Jan. 1, 2011);
People v. Lovejoy, 235 Ill. 2d 97, 144 (2009) (“Illinois has not adopted the amended
[federal] version of Rule 703.”). Illinois Rule of Evidence 705 matches Federal
Rule of Evidence 705, which was adopted in Wilson. See Ill. R. Evid. 705 (eff. Jan.
1, 2011). Wilson and its progeny were incorporated into the Illinois Rules of
Evidence and remain good law.
¶ 80 The majority attempts to avoid any discussion of Wilson or Illinois Rule of
Evidence 703 by mischaracterizing the State’s argument, focusing only upon
Illinois Rule of Evidence 705, and making unfounded extrapolations from
inapposite case law. Beginning with its use of irrelevant case law, the majority
approvingly cites three appellate court cases that involved expert testimony that
was intrinsically scientific—unlike here—and thus required an explanation of the
methodology or process used to arrive at the result and the expert’s conclusion. See
People v. Fountain, 2016 IL App (1st) 131474, ¶ 56 (historical cell site analysis);
- 24 -
People v. Simpson, 2015 IL App (1st) 130303, ¶ 14 (footwear impression); People
v. Negron, 2012 IL App (1st) 101194, ¶ 34 (fingerprint analysis). 1 Citing People v.
Mosby, 25 Ill. 2d 400 (1962), the majority asserts that the State is attempting to
shift the burden of proof to defendant and use cross-examination as an alternative
means of establishing the elements of the offense beyond a reasonable doubt. Supra
¶ 30. Yet, Mosby never mentions the use of cross-examination to shift the burden
of proof to a defendant. See Mosby, 25 Ill. 2d 400. The majority concludes that
cross-examination was unnecessary because the State failed to present evidence by
way of Detective Dammon’s direct testimony that establishes the elements of the
offense. For this proposition, the majority cites People v. Howery, 178 Ill. 2d 1(1997), which is likewise inapposite. In that case, this court rejected the defendant’s
argument that certain remarks made by the trial court when delivering its ruling
somehow shifted the burden of proof. 2 The majority adds that Illinois Rule of
Evidence 705 unambiguously requires that Detective Dammon articulate the
reasons for his opinion before the burden shifts to defendant to cross-examine
Detective Dammon as to the facts and data underlying his opinion. Because,
according to the majority, Detective Dammon “generally described in broad terms
the types of information and facts on which his opinion was based” and “merely
identif[ied] the source of those facts and data without explaining the reasons for his
opinion,” his testimony failed to prove the elements of the offense and thus shift
the burden to defendant. People v. Mpulamasaka, 2016 IL App (2d) 130703, does
not support the majority’s position that the burden to cross-examine an expert does
not shift unless the expert satisfies the “condition” of first explaining the reasons
for his or her opinion—rather than offering supporting facts and data. There, after
the defendant cross-examined the expert, the appellate court concluded that the
1
The majority declares that “the correct application of Rule 705 is illustrated by People v.
Fountain, 2016 IL App (1st) 131474, People v. Simpson, 2015 IL App (1st) 130303, and People v.
Negron, 2012 IL App (1st) 101194,” because the appellate court “noted that the experts testified on
an ultimate issue or conclusion, detailed their analytic process and methodology, and also
thoroughly explained the reasons for their opinions” and “acknowledged that Rule 705 permits an
expert to testify in terms of opinion or inference and to give reasons therefor without divulging the
underlying facts and data for it, which then shifts the burden to the opposing party to explore the
same on cross-examination.” Supra ¶¶ 32-33.
2
This court determined that one remark demonstrated that the court merely considered and
rejected the defendant’s reasonable doubt defense and another remark demonstrated that the court
made an effort to support the various theories set forth by the defendant. Howery, 178 Ill. 2d at 30-
33.
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expert did not supply enough facts to support the foundation for her opinion. See
id. ¶¶ 38-42, 89, 95-96. The defendant’s cross-examination of the expert actually
brought out information that demonstrated the expert’s ignorance of pertinent facts
that would have informed her opinion. Id. ¶¶ 38-39, 95-96. Thus, the appellate
court’s criticism was not that the expert’s direct testimony failed to shift the burden
to defendant to perform cross-examination. Rather, the defendant’s cross-
examination showed that the foundation underlying the expert’s opinion was
deficient.
¶ 81 Critically, the majority misunderstands the interplay between Illinois Rules of
Evidence 703 and 705. As mentioned, Wilson held that an expert may base his or
her opinion testimony on facts that are not ordinarily admissible in evidence but
that such facts may nevertheless come out on cross-examination or if the trial court
so determines. See Wilson, 84 Ill. 2d at 194. The facts underlying an expert’s
opinion are not substantive evidence and are not admitted for their truth. Instead,
such facts are admitted “ ‘for the limited purpose of explaining the basis for the
expert witness’ opinion.’ ” Anthony, 136 Ill. 2d at 185 (quoting Anderson, 113 Ill.
2d at 12); In re Commitment of Butler, 2013 IL App (1st) 113606, ¶ 31. Thus,
requiring a defendant to test an expert’s opinion by inquiring into the facts or data
underlying the expert’s opinion would never shift the burden of proof to the
defendant in contravention of due process. Whatever facts the expert relied upon to
arrive at his or her opinion would never constitute proof. Rather, it is an expert’s
ultimate opinion that may prove an element at issue (see, e.g., In re Commitment of
Fields, 2014 IL 115542, ¶¶ 20-27), and the trier of fact remains at all times free to
accept or reject the expert’s opinion (Richardson, 175 Ill. 2d at 107). The key
inquiry is whether the facts or data underlying the expert’s opinion are of a type
reasonably relied upon by experts in the same field. Anthony, 136 Ill. 2d at 186.
¶ 82 The majority paints an incomplete picture of Detective Dammon’s testimony at
trial and draws a confounding distinction between reasons and facts. At trial, the
State in fact laid an extensive foundation for Detective Dammon’s opinion.
Detective Dammon testified as to his experience with the Belvidere Police
Department beginning in 1996, his position in the street gang unit, and his
specialized training and courses taken in street gangs and gang activity, which
included training dealing with active gangs in Chicago, the Chicago suburbs, and
areas close to Belvidere and Rockford. Detective Dammon testified that he had
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been personally involved in over 400 gang crime investigations, had contact in his
capacity as a gang officer and detective with gang members in Belvidere well over
a thousand times, and personally interviewed people taken into custody for various
gang offenses well over a thousand times. As a member of the street gang unit,
Detective Dammon noted that he “enforce[s] laws for crimes that are being
committed by gang members as well as for the LEADS database for other officers.”
He stated that, since his position changed in the gang unit in 1998, he regularly
interviews those taken into custody for gang offenses, which included admitted
street gang members. Detective Dammon described how street gangs operate and
are organized. He also provided specific testimony detailing the Latin Kings in the
Belvidere area.
¶ 83 Once Detective Dammon was acknowledged as an expert in gang activity, the
following testimony was elicited on direct examination:
“Q. Is the Latin Kings street gang, is that an organized street gang as defined
by our state Street Gang Omnibus Act?
A. It is.
***
Q. Are the Latin Kings and Sureño 13s two major groups of gangs in the
Belvidere area?
A. They are the two major groups of gangs in the Belvidere area.
***
Q. Are you familiar with those two gangs, the Latin Kings and the Sureño
13s?
A. I am.
***
Q. Now, is there a rivalry between the Latin Kings and the Sureño 13 in
Belvidere?
A. There is.
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Q. Have you handled criminal investigations regarding the two groups?
A. Numerous.
***
Q. Have you heard of the phrase gang banging?
A. Yes.
Q. And what does that mean?
A. It’s when gang members are actually doing gang work other than hanging
out. Committing crimes for the prosperity or benefit of a street gang.
Q. And how important are firearms to the—to street gangs?
A. They’re very important. Street gangs’ primary means of income is drug
sales. Where you have drug sales, you have cash. The gangs need weapons to
protect not only the drugs but the cash and themselves from other rival gangs.
Q. And with regard to gang banging, can that also mean fighting the
opposite gang or fighting a rival gang?
A. It can, as well as intimidation of people. Anything to benefit the gang
itself.
***
Q. And did you recognize some of the subjects?
A. I did.
Q. Who did you recognize?
A. I recognized Deontae Murray.
***
Q. Now, have you had contact with Deontae Murray, the defendant,
Anthony Perez, and Max Cox in the context of gang investigations?
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A. I have.
***
Q. Thank you. Now, with regard to the defendant, Max Cox, Anthony Perez,
and Marco Hernandez, do you have an opinion as to whether they are members
of a street gang?
A. They are all members of street gangs.
Q. And what is that based on?
A. My experience in dealing with each of them, speaking to them, as well
as researching not only their LEADS record but information that’s provided by
other officers into the gang database with very reliable information including
other graffiti that’s been done by them, their associates being other gang
members, and self-admissions.” (Emphasis in original.)
¶ 84 Detective Dammon also testified to the specific types of sources that not only
he, but other experts in the same field, rely upon in identifying someone as a gang
member. Accordingly, not only was adequate foundation laid for Detective
Dammon’s expert opinion on an ultimate issue, but Detective Dammon testified
that the facts, data, and sources he relied upon for his classifying the Latin Kings
as a street gang were of a type relied on by other experts in the same field—and
thus reliable. The majority fails to mention that Detective Dammon had experience
dealing with defendant, had previously spoken to him, and that defendant admitted
his Latin Kings membership to Detective Dammon. Given Detective Dammon’s
experience in handling numerous investigations regarding the Latin Kings and
interviewing those taken into custody for gang offenses, it is difficult to understand
how the majority could conclude that Detective Dammon gave no reason for his
opinion, merely referenced the sources of the underlying facts and data, or failed to
explain the “nexus” between LEADS, the Illinois Department of Corrections
Information System, gang databases or notes from other cases and offered no
explanation as to why this information established that the Latin Kings were a street
gang engaged in a “course or pattern of criminal activity.”
¶ 85 Notably, defendant did not object to Detective Dammon’s opinion or any of the
sources that Detective Dammon stated that he relied upon for his opinion.
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Furthermore, the trial court also did not deem it necessary to require Detective
Dammon to disclose on direct examination any facts or data relating to specific
crimes committed by other Latin Kings to demonstrate that the Latin Kings engage
in a “course or pattern of criminal activity” consistent with his opinion.
¶ 86 Detective Dammon’s opinion that the Latin Kings are a street gang was proper,
even though his direct testimony did not disclose the specific other crimes evidence
underlying that opinion. See Ill. R. Evid. 703 (eff. Jan. 1, 2011); Wilson, 84 Ill. 2d
at 194; Robidoux v. Oliphant, 201 Ill. 2d 324, 334 (2002) (“Thus, under Wilson, an
expert testifying at trial may offer an opinion based on facts not in evidence, and
the expert is not required on direct examination to disclose the facts underlying the
expert’s opinion.”).
¶ 87 Once Detective Dammon provided his expert opinion on the street gang
element, the burden shifted to defendant to cross-examine Detective Dammon on
the facts underlying that opinion. See Ill. R. Evid. 705 (eff. Jan. 1, 2011); Wilson,
84 Ill. 2d at 194; see also People v. Pasch, 152 Ill. 2d 133, 179 (1992) (“[A]n expert
may be cross-examined for the purpose of explaining, modifying, or discrediting
his testimony, as well as to ascertain what factors were taken into account and what
ones disregarded in arriving at his conclusions.” (Emphases added.)); People v.
Whitfield, 140 Ill. App. 3d 433, 437 (1986) (expert’s “unchallenged identification
of the powder was sufficient for the jury to find beyond a reasonable doubt that it
consisted of cocaine and heroin”). Defendant did not cross-examine Detective
Dammon on whether his opinion was based on crimes that, for example, met the
statutory definition of “course or pattern of criminal activity.” See, e.g., Tsoukas v.
Lapid, 315 Ill. App. 3d 372, 380 (2000) (“It is not improper to allow questioning to
discover what potentially relevant information plaintiff’s expert may have failed to
consider in reaching an opinion.”). Such a closed-ended question would not
disclose the dates that such crimes took place.
¶ 88 As mentioned, Detective Dammon testified that one of the specific types of
sources he relied upon for his opinion is a gang database that is also relied upon by
other experts in the same field. 3 Oddly, the majority sua sponte takes “judicial
3
Numerous cases have recognized gang experts’ “reliance on information from centralized
computer databases—such as arrest records, police reports, offense reports, jail records, probation
reports, and ‘contact cards’—as well as other reported and recorded statements that help flesh out
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notice” of the deficiencies noted by the City of Chicago inspector general of the
Chicago Police Department’s “Gang Database” and concludes that it lacks
trustworthiness and thus does not fall within the Illinois Rule of Evidence 803(8)
exception to the hearsay rule. First and foremost, Illinois Rule of Evidence 703,
“Bases of Opinion Testimony by Experts,” provides in relevant part that, “[i]f of a
type reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in evidence.”
Ill. R. Evid. 703 (eff. Jan. 1, 2011). Accordingly, whether the Chicago Police
Department’s gang database falls within the Illinois Rule of Evidence 803(8)
exception to the hearsay rule is irrelevant. See Ill. R. Evid. 803(8) (eff. Apr. 26,
2012). Second, the majority is clearly attempting to subvert the application of
Illinois Rule of Evidence 703 by casting doubt upon the reasonableness of gang
experts’ reliance upon gang databases. This is injudicious, unnecessary, and
premature. The issue is tangential to the question raised in this appeal and was not
addressed by the parties. Again, pursuant to Illinois Rule of Evidence 705, an
adverse party would be free to cross-examine a gang expert that relies upon a gang
database about purported flaws associated with the Chicago Police Department’s
gang database. In any event, Detective Dammon’s opinion did not rely solely upon
information from a gang database. For example, Detective Dammon also relied
upon LEADS, 4 a source which the majority does not discuss. Third, Detective
Dammon referenced not the Chicago Police Department’s gang database but the
Belvidere Police Department’s own gang database. The specific qualms the City of
Chicago Office of Inspector General and the majority find with the Chicago Police
Department’s gang database thus do not necessarily carry over to Belvidere’s. Quite
simply, Chicago’s gang database has nothing to do with this case.
the experts’ understanding of gang customs, alliances, rivalries, activities, ‘territories,’ hierarchies,
and membership.” People v. Berrios, 2018 IL App (2d) 150824, ¶ 19; see also People v. Jackson,
145 Ill. App. 3d 626, 634 (1986) (observing that, as a matter of practicality, such information
gathering is likely the only means a non-gang member can collect details of gang activity and
membership rank and that such data is not available to an average layperson).
4
“The Illinois Law Enforcement Agencies Data System (LEADS) is a statewide, computerized,
telecommunications system, maintained by the Illinois State Police, designed to provide the Illinois
criminal justice community with access to computerized justice-related information at both the state
and national level.” Law Enforcement Agencies Data System, Illinois Integrated Justice Information
System, http://icjia.state.il.us/iijis/public/word/SJIS/SJIS_LEADS.doc (last visited Oct. 4, 2019)
[https://perma.cc/EX9Z-XLZN].
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¶ 89 The majority’s holding robs a trial judge of his or her discretion to determine
whether an expert is permitted or required to testify to the facts or bases underlying
his or her expert opinion, which necessarily accounts for the prejudice that could
arise from disclosure of such underlying facts and data. See Ill. R. Evid. 705 (eff.
Jan. 1, 2011). The majority instead requires the introduction of potentially grossly
prejudicial evidence that invites the trier of fact to determine a defendant’s guilt by
association. 5 So long as one such crime involves “the solicitation to commit,
conspiracy to commit, attempt to commit, or commission of any offense defined as
a felony or forcible felony under the Criminal Code of 2012” and both crimes occur
within the relevant time period, prosecutors are free to pick from the most heinous
of crimes to prove the “ ‘course or pattern of criminal activity’ ” element. See, e.g.,
People v. Hairston, 46 Ill. 2d 348, 375 (1970) (“it is entirely proper for the
prosecutor to dwell upon the evils of crime”); see also Jackson, 145 Ill. App. 3d at
641. I can think of no other context where the State is required to introduce other
crimes evidence, against the defendant’s penal interest, committed by individuals
the defendant may not even know.
¶ 90 Even if a gang expert’s ultimate opinion could not by itself prove that an entity
constitutes a street gang, the decisions in People v. Jamesson, 329 Ill. App. 3d 446(2002), and Berrios, 2018 IL App (2d) 150824, demonstrate a more prudent
approach to establishing specific crime evidence that tempers the need for such
evidence with the interest of avoiding introduction of more prejudice than is
necessary. In those cases, the experts provided their respective opinions that the
entities at issue were street gangs. Though specific crimes and exact dates were not
elicited on direct examination, the trier of fact could conclude that the entities were
street gangs based on the experts’ testimony, opinions, and the reasonable
inferences therefrom. Jamesson, 329 Ill. App. 3d at 460-61 (gang expert opined that
the Latin Counts were a street gang, described his familiarity with the Latin Counts
and two of its members, and testified that the police department began to have
5
When Detective Dammon was asked about an individual by the name of Mallek Sanchez,
defense counsel objected, and the State made a proffer, explaining that Detective Dammon would
testify that Mallek Sanchez is a higher-ranking street gang member whose birthday party defendant
was attending. When the court questioned the State as to what purpose this would serve, defense
counsel interjected: “Guilt by association is what they’re looking for, Your Honor.” Detective
Dammon explained that he investigated Mallek for distributing cocaine in Belvidere and that Mallek
was charged and sentenced to the Department of Corrections for selling cocaine. Detective Dammon
had been in contact with Mallek “several dozen times” in the context of street gang investigations.
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contact with the Latin Counts “ ‘a couple of years ago’ ” and that the Latin Counts
have been involved in numerous violent incidents, which included aggravated
batteries); Berrios, 2018 IL App (2d) 150824, ¶¶ 19, 22 (gang expert testified that
he had been a member of the street gang unit for three years, which would be after
the effective date of the Act, and that the gang unit “ ‘track[s]’ ” the Latin Kings
and other street gangs; court noted that the expert’s reliance upon gang information
sheets was reasonable and that the expert relied on other sources like his specialized
training in gang investigations, experience as a gang-crimes investigator, and
familiarity with street gangs in the area).
¶ 91 In the instant case, the jury similarly could have inferred from Detective
Dammon’s testimony that the Latin Kings engage in a “course or pattern of criminal
activity.” Detective Dammon began working with the gang unit beginning in 1996,
which postdates the effective date of the Act, and he was still a member of the street
gang unit at the time of his testimony. In that capacity, he investigated several
hundred street gang crimes, conducted “well over a thousand” interviews of people
taken into custody for various gang offenses, enforced laws for crimes that “are
being” committed by gang members, and prepared for gang-related trials.
Defendant himself freely acknowledged being a Latin King at the time of the
relevant events in question and repeatedly referred to the Latin Kings as a gang. 6
Defendant testified as follows:
“Q. Now, Deontae, you’ve heard testimony from—well, at least Detective
Dammon and perhaps Detective Wallace and Detective Washburn that you
were affiliated with the Latin Kings?
A. Yes, sir.
Q. When did you become affiliated with the Latin Kings?
A. When I was about 13 or 14.
6
The majority notes that, at the time of trial, defendant was no longer a member of the Latin
Kings. Whether defendant was still a member of the Latin Kings at the time of trial is completely
irrelevant. At trial, however, when Detective Dammon identified defendant, defendant was wearing
a black tie and a gold and tan shirt. Detective Dammon testified that the Latin Kings’ primary colors
are black and gold but that they also use tan and black.
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Q. How were you recruited?
A. Placed on like a probation deal called being a shorty.
Q. Okay. Being a shorty, is that—what exactly is that?
A. Pretty much where they’ll just see if you’re fit for the gang.
***
Q. How were you initiated into the gang?
A. Beat up.
***
Q. Is that how they get people to join their gang, they beat them up?
A. I mean, that’s how you become recruited, a member.
***
Q. Deontae, how old are you now?
A. I’m 23, sir.
Q. 23. And back on April 21st of 2013, how old were you?
A. I was 21.
Q. So at that point in time, you had been affiliated with the Kings for seven
years?
A. Yes, sir.
***
Q. You spent several days before you were arrested by the police; is that
correct?
A. Yes, sir.
Q. Why didn’t you go to the police earlier?
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A. I mean, I didn’t really think about, you know, what would happen. I
mean, if I go to turn myself in, then later on I knew—that same night I knew
that I had been charged—that I was being looked for so I thought I was going
to be arrested. If I tell them my side of the story, I guess I’m put in the same
position: I’ve got to run from the Kings for the rest of my life.
Q. What do you mean?
A. I know that if I came here and told on them, that’s the only way I was
going to be able to get my side of the story out. They’d probably hunt me down
or try to get at me, try to hurt me or kill me or whatever. I’m not sure.
Q. When you say they, are you talking about the Latin Kings?
A. Yes, sir.” (Emphasis in original.)
¶ 92 Defendant also testified that he was convicted of obstruction of justice on May
24, 2011, and of aggravated battery on May 2, 2012, both of which occurred during
the time that defendant was a member of the Latin Kings.
¶ 93 For the reasons stated above, I would affirm the judgment of the appellate court
affirming defendant’s conviction for unlawful possession of a firearm by a street
gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)). The majority’s holding takes
this court on a dangerous and unnecessary pathway that seriously implicates
defendant’s due process rights.
¶ 94 JUSTICES THOMAS and THEIS join in this dissent.
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