People v. Weston , 2011 IL App (1st) 92432 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Weston, 2011 IL App (1st) 092432Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TRAVIS WESTON, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-09-2432
Filed August 12, 2011
Rehearing denied September 6, 2011
Held Although the trial court erred in admitting gang-related evidence without
(Note: This syllabus a demonstration of its relevance, the overwhelming evidence of
constitutes no part of defendant’s guilt rendered the error harmless and defendant’s convictions
the opinion of the court for first degree murder and attempted murder were affirmed.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-24410; the
Review Hon. Neera Lall Walsh, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Elena B. Penick, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, Mary Needham, and William L. Toffenetti, Assistant
State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE GARCIA delivered the judgment of the court,
with opinion.
Justices Cahill and McBride concurred in the judgment and opinion.
OPINION
¶1 Defendant Travis Weston was convicted of first degree murder and attempted murder and
sentenced to consecutive terms of imprisonment of 45 and 30 years, respectively. Before the
defendant’s jury trial, the trial court granted the State’s motion to admit evidence of the
defendant’s gang affiliation to “provide a motive for what would otherwise be an
inexplicable act.” However, no evidence connecting the defendant’s gang membership to the
crimes was ever presented and the trial evidence made patently clear the defendant
committed the crimes to aid his cousin. On the record before us, we are compelled to find
the trial court abused its discretion in allowing gang-related evidence, where the State made
no showing that the gang-related evidence was germane to the charges and the case law
offered by the State was inapposite. Nevertheless, evidence of the defendant’s guilt was
overwhelming, where the victim was very familiar with the defendant and the defendant
confirmed in a conversation he had with an independent witness that he was familiar with
the victim. The overwhelming evidence closed the door to the defendant’s claims of plain
error grounded on the State’s remarks during closing argument. We affirm.
¶2 BACKGROUND
¶3 The defendant and his brother Brian Weston were tried simultaneously, but before
separate juries, for the April 30, 2005, shootings of Tai Williams, who was killed, and Nyoka
Williams, her sister, who lived to testify at trial against both defendants. We recently
affirmed Brian Weston’s conviction for first degree murder and attempted murder. People
v. Weston, No. 1-09-2122 (2011) (unpublished order under Supreme Court Rule 23).
¶4 Nyoka testified that in 2004, she began dating William Yelvington, whom she knew as
William Jackson. Yelvington introduced Nyoka to his cousin, the defendant. Nyoka
interacted with the defendant on 10 or 11 separate occasions, including the times she
accompanied Yelvington to the defendant’s residence. In September 2004, Nyoka and
Yelvington ended their relationship. Nyoka moved in with her sister Tai and Tai’s son on
East 50th Place in Chicago. Nyoka resumed dating Yelvington in early 2005, but recurrent
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arguments soon ended the relationship. Around April 4, 2005, Nyoka came home to find
Yelvington and the defendant in her bedroom with multiple “long” guns laid out on her bed.
She asked Yelvington to remove the guns, which he did. On April 11, 2005, Yelvington
broke into her apartment through a window and refused her requests to leave. Yelvington
pointed a long gun at Nyoka, threatening to kill her if she called the police. She ignored the
threat and called 911, which prompted Yelvington to run out of the apartment. She
recognized the long gun Yelvington pointed at her as among the guns he had laid out on her
bed the week earlier. Nyoka obtained an order of protection that barred Yelvington from
entering her building.
¶5 On April 12, 2005, the police recovered a number of weapons and ammunition from a
dumpster about a block from Nyoka and Tai’s residence. There were two 12-gauge pump-
action shotguns and three rifles, one of which had a bipod support stand attached to the
barrel. The police search for weapons was triggered by an anonymous phone call. In an
interview with Chicago Detective Jean Romic on May 4, 2005, Nyoka recognized from a
photo the rifle with the bipod as the gun Yelvington pointed at her on April 11.
¶6 On April 29, 2005, Nyoka was home with her sister Tai. Nyoka was watching television
in her bedroom while Tai was watching television and talking on the phone in the living
room. The doorbell rang. The man at the intercom said he lived across the hall and needed
to be let in. Nyoka told the man to contact the landlord. She observed through a window that
the person at the intercom was a young black man in a gray, hooded sweatshirt. She told Tai
she did not feel safe. She checked the locks to the apartment and fell asleep in her room on
top of her bed covers with both the television and a closet light on.
¶7 In the very early morning, Nyoka awoke to a man standing directly over her, holding a
silver gun with a white handle in her face. It looked like a “cowboy” gun to Nyoka. The man
was wearing a gray, hooded sweatshirt, had “short, nappy afro” hair, and was about 5 feet 6
inches or 5 feet 7 inches in height. He yelled, “where those things at.” When Nyoka sat up,
the defendant walked into her bedroom with Tai, who sat next to Nyoka on the bed. The man
with the gun continued to ask, “where is William’s guns at.” Nyoka responded that she did
not know what the man was talking about; she said Yelvington had taken all of his
possessions when he moved out of her apartment. The defendant left the room for a couple
of seconds, during which time Nyoka testified the man with the gun was “steady asking me
where the fuck is William’s guns at.” The defendant returned to the room with two pillows
from Nyoka’s couch. He addressed Nyoka by her nickname, “Cookie, where the fuck them
things at.” She responded, “Travis, you know that William took everything with him.”1
¶8 When Tai began repeating what Nyoka said, the gunman threatened to shoot her for
talking too loudly. The defendant attempted to put one of the pillows over Tai’s face, while
the gunman aimed the gun at her face. Nyoka then stood up, which prompted the gunman to
hit her in the face with the gun, shove her to the floor, and shoot her in the back of the head.
Nyoka heard her sister scream, “my arm, my arm,” and heard two more shots. While Nyoka
1
No reason was offered at trial for the defendant and his brother looking for Yelvington’s
guns at Nyoka’s apartment.
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was lying on the floor, she heard the defendant say, “shoot that bitch again,” at which point
Nyoka was shot in the shoulder. After the two men left, Nyoka called 911 on her cell phone.
She was hospitalized with two through-and-through gunshot wounds: one to the base of her
skull at her neck; the other to her left upper shoulder. Tai died from the gunshots wounds she
received.
¶9 Chicago police officer Carl Brasic testified he arrived at the East 50th Place apartment
at 4:20 a.m. on April 30, 2005. He found the rear door of the apartment forced open. He
recovered a fired bullet and metal fragment from the bedroom where the shootings occurred.
Another bullet was recovered in the basement beneath Nyoka’s bedroom. He recovered no
guns from the scene.
¶ 10 Following an interview of Nyoka at the hospital, Detective Romic began looking for a
black male known as Travis. On May 3, Detective Romic presented Nyoka with an array of
11 photographs from which she identified the defendant as one of the men that broke into her
home. The following day, she identified the defendant from a lineup at the police station.
According to Detective Michael Adams, Nyoka later identified the defendant’s brother, Brian
Weston, as the gunman from a photo array and at a lineup. She identified both the defendant
and Brian Weston in court during the trials.
¶ 11 Rannell Colbert, a 26-year-old female, also testified for the State. Colbert knew the
defendant from grade school, but had lost touch with him over the years. By April 2005, they
had reconnected and had been friends for some time, with the defendant sleeping at Colbert’s
home on the sofa. Colbert came to know the defendant’s cousin, Yelvington, by the name
of “LC.” Around mid-April, the defendant said to Colbert, “ ‘Sis, I might need you to beat
LC’s bitch up for me.’ ” When Colbert asked why, the defendant said, “ ‘man, that bitch
turned some thumpers in to the peoples.’ ” The defendant added, “ ‘if they catch LC, man,
my cousin going to be gone for life. They going to slam him.’ ” According to Colbert,
“thumpers” meant guns and “LC’s bitch” referred to the woman LC was dating. On the day
before the shooting, Colbert went to a party around 9:30 p.m. The defendant was not home
when she returned around 2:30 or 3 a.m. the next day. He was not there when she awoke at
noon. She went to another party the night of April 30. When she came home around 3 a.m.,
the defendant was home. When she asked where he had been, the defendant responded that
he had been “hanging out.” At some point that morning, the defendant walked through
Colbert’s house putting his belongings in a plastic bag and left. Colbert saw the defendant
a few days later, when she gave him a ride to her cousin’s house. She did not see the
defendant again until the trial.
¶ 12 The parties stipulated to the DNA evidence. The forensic analyst would testify that the
defendant and his brother were excluded as contributors to the DNA mixture recovered under
Tai’s fingernails.
¶ 13 Before trial, the State filed a motion to admit evidence that the defendant was a member
of a gang. The State argued the defendant and Yelvington were members of the gang known
as Unknown Vice Lords and the defendant committed the crimes in an attempt to recover
weapons for the gang. The motion stated:
“The nature of the weapons, that they had been in the custody and control of
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defendant’s fellow gang member (William [Yelvington]), and were now inaccessible,
is the motive for the forced entry of victim[’]s residence, their interrogation, and
ultimately their shooting. The gang evidence is clearly relevant to show the motive
is defendant’s recovery of his fellow gang member[’]s weapons cache, if not
weapons belonging to the gang itself.”
¶ 14 At oral argument on the motion on June 29, 2009, the State contended evidence of the
defendant’s gang affiliation should be admitted to “provide a motive for what would
otherwise be an inexplicable act.” Counsel for the defendant countered that Yelvington and
the defendant were cousins, “So it’s a familial thing going on here.” Counsel stated that
“alleged gang members also have families, also do things for other reasons. What the State
has to prove here is that this whole crime has to do with something related to the
organization that they call a gang. They haven’t done that.” Defense counsel concluded, “just
because a person is in a gang or alleged to be in a gang doesn’t mean the activity they are
carrying out has to do with a gang.”
¶ 15 The trial court explained its ruling:
“[I]t is *** a balancing test as to whether there would be more prejudice than
probative value here; and I believe that in this case, based on the cases that were cited
by the State, in particular People versus Gonzalez, I do believe that the State has met
their burden here, and it would be more probative than prejudicial to the defendant.”
¶ 16 At trial, Nyoka testified the defendant and Yelvington addressed each other as “Lord,”
which she understood to mean “Vice Lord.” When Colbert was also asked about the
defendant’s gang membership, she testified, “I didn’t never known for Travis to belong to
a street gang. *** [J]ust the environment of which I knew he hung out in, I do know that was
gang related.” When asked what environment she referred to, she explained, “I known some
of them to say Unknown Vice Lord,” which she identified as the name of a street gang.
¶ 17 At closing argument, the State pointed to “guns in the world of gangs,” which can link
gang members to past crimes. The jury found the defendant guilty of first degree murder and
attempted murder. In his motion for a new trial, the defendant contended, among other
claims, that gang evidence should not have been admitted and that Nyoka should not have
been permitted to opine on the meaning of the term “Lord.” The court denied the posttrial
motion and imposed consecutive sentences of 45 for first degree murder and 30 years for
attempted murder. The court denied his motion to reconsider the sentence. This timely appeal
followed.
¶ 18 ANALYSIS
¶ 19 The defendant argues the circuit court erred in allowing the introduction of gang-related
testimony by Nyoka and Colbert as the probative value of that testimony was substantially
outweighed by its prejudicial impact. Specifically, he contends Nyoka was not qualified to
give lay testimony about the meaning of the term “Lord,” as used by the defendant and
Yelvington, and Colbert’s testimony, that the defendant and his group were known to say
“Unknown Vice Lord,” was hearsay. He also asserts the court’s ruling, permitting gang-
related testimony, opened the door to the State’s closing argument that ridiculed the defense
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and invited speculation about other crimes the “gang members” might have committed.
¶ 20 In response, the State persists in its contention that a motive behind the crimes was gang-
related, which made the evidence of gang affiliation relevant to explain the shootings. As a
fall-back position, the State claims that even without the gang evidence, the evidence was
sufficient to affirm the conviction. As to the defendant’s arguments regarding its closing
argument, the State contends the defendant did not preserve his contentions of error by
objecting, except as to one comment. The State notes the lone comment objected to was not
listed in the defendant’s posttrial motion; in any event, the lone comment does not warrant
reversal.
¶ 21 Gang Evidence
¶ 22 “[A]ny evidence which tends to show that an accused had a motive for killing the
deceased is relevant because it renders more probable that the accused did kill the deceased.”
People v. Smith, 141 Ill. 2d 40, 56 (1990). “It is generally held that evidence indicating the
defendant was a member of a gang or was involved in gang-related activity is admissible ***
to provide a motive for an otherwise inexplicable act.” Id. at 58. Trial courts are cautioned,
however, that “street gangs are regarded with considerable disfavor by other segments of our
society. [Citation.] *** [P]articularly in metropolitan areas, there may be strong prejudice
against street gangs.” People v. Strain, 194 Ill. 2d 467, 477 (2000). “Trial courts should
exercise great care in exercising their discretion to admit gang-related testimony.” People v.
Davenport, 301 Ill. App. 3d 143, 152 (1998) (citing People v. Lucas, 151 Ill. 2d 461, 487-89
(1992)).
¶ 23 The standard for admitting gang evidence has been set by our supreme court: “[T]his
court has held that evidence indicating a defendant is a member of a gang or is involved in
gang-related activity is admissible only where there is sufficient proof that membership or
activity in the gang is related to the crime charged.” (Emphasis added.) Strain, 194 Ill. 2d at
477. To ensure a careful exercise of discretion, a trial court should require the prosecution
to demonstrate a clear connection between the crimes and the gang-related testimony. As our
supreme court cautioned in a different context, decisions by courts of review allowing gang-
related testimony do not furnish a license to the trial courts “to adopt a cursory or skeletal
analysis of the facts and issues” regarding the admission of highly prejudicial gang-related
testimony. People v. Johnson, 208 Ill. 2d 53, 117 (2003).
¶ 24 It is never sufficient for a trial court to give lip service to the balancing test, while it
undertakes no analysis to ensure that the case law offered by the State actually supports the
admission of gang-related testimony based on the evidence in the case under consideration.
In its ruling granting the State’s motion to admit gang-related testimony, the trial court
reasoned, “I believe that in this case, based on the cases that were cited by the State, in
particular People versus Gonzalez, I do believe that the State has met their burden here, and
it would be more probative than prejudicial to the defendant.” Yet, the State’s motion offered
scant reason for its reliance on the case it offered to the trial court. We note that before this
court, the State makes little of the case it urged upon the trial court to guide its ruling. Our
examination of People v. Gonzalez, 142 Ill. 2d 481 (1991), explains why.
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¶ 25 In Gonzalez, the supreme court reviewed this court’s majority decision that reversed the
defendant’s conviction based on the admission of the defendant’s gang affiliation where the
evidence was not overwhelming. Id. at 485. The trial court had admitted into evidence a
photo book of gang members to explain the victim’s identification of the defendant. Id. at
488. The trial court had “ruled that such evidence would be admissible for the limited
purpose of showing the circumstances leading to the defendant’s identification as the
offender and his subsequent arrest.” Id. at 485. The supreme court repeated the limited nature
of the trial court’s ruling: “We first consider whether the gang-related evidence was properly
admitted for the limited purpose of showing the circumstances surrounding the victim’s
identification ***.” Id. at 487. Our discussion of Gonzalez could end here. Given the careful
ruling by the trial court in Gonzalez limiting the use of gang-related evidence, a limitation
acknowledged in the analysis of both the appellate court and the supreme court, we do not
see how Gonzalez is apposite to the circumstances present in this case. Nor did the trial court
explain its reliance on Gonzalez.
¶ 26 As we noted above, the State’s brief before us fails to cite Gonzalez in the course of its
argument that the circuit court did not err in admitting the gang-related testimony. We infer
from this omission that the State no longer takes the position it advocated before the circuit
court. We add for good reason.
¶ 27 “Relevant evidence is defined as evidence having any tendency to make the existence of
a fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence.” Gonzalez, 142 Ill. 2d at 487-88. As the court made clear in
Gonzalez, “the reliability of the victim’s identification of the defendant as the offender was
the central issue in the case. *** To the extent that the gang-related evidence strengthened
the victim’s identification testimony, the evidence was relevant.” Id. at 488. The court further
explained the relevance of the book containing photographs of the gang to which the
defendant belonged. “The gang-related evidence was relevant to the jury’s consideration of
the steps in the investigation, and of the circumstances culminating in the defendant’s arrest
as the offender.” Id. The court made clear that “gang-related evidence will not necessarily
be excluded if it is otherwise relevant and admissible.” Id. at 489.
¶ 28 Thus, the trial court’s statement in its ruling admitting the gang evidence based on its
assessment of the balancing test missed a more fundamental step. Before gang-related
testimony may be admitted, the trial court must first determine that the evidence is relevant.
Only if the gang-related testimony is relevant would the trial court need to engage in the
balancing test. Much as it was absent from the trial court’s ruling, the State before us fails
to explain the relevance of the gang-related testimony. It is also clear that Nyoka’s
identification of the defendant was not the central issue before the jury; nor was her
familiarity with the defendant strongly disputed. Gonzalez is inapposite.
¶ 29 This case is more analogous to the supreme court’s decision in Smith. There, the State
sought to introduce evidence that the murder victim, an assistant prison warden, had been
tough on an imprisoned gang leader, and the defendant’s affiliation with that gang motivated
the defendant to murder the victim. Smith, 141 Ill. 2d at 58. “The only evidence admitted in
support of this theory, however, indicated that there is a variety of gang-related activity in
the Illinois penitentiary system, that [the victim] was intolerant of such activity in the prison
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where he was employed, and that [the victim] had had an altercation with [the gang leader]
while [the leader] was an inmate.” Id. “This evidence, by itself, simply does not support a
reasonable inference *** that defendant was acting pursuant to the alleged vengeful designs
of [the leader] or [the gang] at the time he allegedly killed [the victim].” Id. at 59. “As such,
the inflammatory evidence of gang-related activity offered to support the ‘motive’ theory was
of little probative value and could do little more than ‘excite a suspicion of guilt’ in the
minds of the jurors.” Id. (quoting People v. Gougas, 410 Ill. 235, 240 (1951)). The supreme
court concluded it was error to admit the gang evidence. Smith, 141 Ill. 2d at 59.
¶ 30 Our decision in People v. Joya, 319 Ill. App. 3d 370 (2001), also bears similarities to the
case at hand. In Joya, the State contended “evidence of defendant’s gang membership was
relevant to show that defendant and his fellow gang members shared a common purpose or
design,” which motivated the defendant to shoot the victim in a bar fight. Joya, 319 Ill. App.
3d at 376. The record simply did not support the State’s contention.
“[T]he only evidence that there was any connection between defendant’s gang
membership and the shooting of [the victim] was *** testimony that, two or three
months prior to the shooting, defendant told him that he was a member of the Viking
street gang. The evidence in this case showed that the incident was a bar fight and
there was absolutely no testimony that anyone mentioned gang involvement in the
shooting either prior to or after the shooting. As to the State’s argument that the
evidence of gang affiliation established a common purpose or design between
defendant and his fellow gang members, we note that the shooter, Pedro, was
defendant’s brother. The familial relationship between the two is a more reasonable
basis upon which to find a common purpose or design. *** Consequently, any
inference that their mutual gang membership supported the State’s theory that they
acted in concert was cumulative and unnecessary. We find that the evidence of gang
membership in this case was not related to the crime charged and that if it had any
probative value at all, such value was greatly outweighed by its prejudicial effect. We
find that the trial court abused its discretion in admitting the evidence of defendant’s
gang membership ***.” (Emphasis added.) Id. at 377.
¶ 31 In the instant case, like the prosecution in Smith and Joya, the State presented no
evidence that the defendant’s alleged gang affiliation motivated him to search for weapons
in Nyoka’s apartment, ultimately resulting in the shootings of the Williams sisters. Rather,
as in Joya, the “familial relationship” between the defendant and his cousin Yelvington
provided the clear explanation for the defendant’s actions. Id. at 377. Colbert quoted the
defendant as stating as much: “ ‘[I]f they catch LC, man, my cousin going to be gone for
life.’ ” Nor did Nyoka ever testify that on the night of the shootings, the defendant and his
brother asked about “the gang’s guns.” To the extent the weapons recovered by the police
near Nyoka’s apartment could be traced, no evidence was presented that the weapons were
connected to the Unknown Vice Lords. The evidence only showed the weapons belonged to
Yelvington. It was Yelvington (along with the defendant) who had the guns laid out on
Nyoka’s bed, and it was Yelvington who later pointed one of weapons at Nyoka. On the
night of the crime, the defendant’s brother repeatedly asked about “[Yelvington’s] guns.” As
in Joya, “there was absolutely no testimony that anyone mentioned gang involvement in the
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shooting either prior to or after the shooting.” Joya, 319 Ill. App. 3d at 377. The evidence in
this case supported only that the defendant sought to protect his cousin against the serious
consequences that might flow from the police recovery of the weapons. The gang-affiliation
testimony was entirely “unnecessary.” Id. at 377. See People v. Easley, 148 Ill. 2d 281, 329
(1992) (that the defendant prison inmate was a gang member and that correctional officers
had allegedly killed a fellow gang member inmate did not establish that the defendant’s
killing of a correctional officer was motivated by gang affiliation, and therefore did not
justify admission of gang evidence). The record before us is barren of any evidence that the
weapons belonged to the gang.
¶ 32 Nor does the State offer any authority for its contention that Joya is somehow
distinguishable because the crime in that case was more “spontaneous” than this one. The
State fails to explain the role spontaneity (or its absence) has on the admission of gang-
related evidence.
¶ 33 The State conceded in closing argument that the defendant’s alleged desire to help the
gang was at most a secondary motivation. It called the gang motivation “[a] reason to get
those guns back independent but in addition to helping out his cousin.” We take from this
argument that the gang evidence, contrary to the State’s claim to the trial court, was
unnecessary “to provide a motive for an otherwise inexplicable act.” (Emphasis added.)
Smith, 141 Ill. 2d at 58. Once it was clear that the shootings were not gang-related, the State
should have refrained from raising gang motivation in its closing argument. Cf. Johnson, 208
Ill. 2d at 115 (“Defense counsel’s [unjustified] argument did not grant the prosecutor a
license to say anything he desired.”).
¶ 34 The State’s last-ditch effort that there is an “inference” that the guns belonged to the gang
is too insubstantial to warrant serious analysis. We note only the State’s “inference”
contention is an implicit admission that the gang-related evidence failed to directly connect
the crimes to the defendant’s gang affiliation. See Smith, 141 Ill. 2d at 58 (“[Gang evidence]
is only admissible where there is sufficient proof that such membership or activity is related
to the crime charged.” (Emphasis added.)); People v. R.L., 158 Ill. 2d 432, 441 (1994)
(“ ‘[A]n inference is a working tool, not a synonym for proof.’ ” (quoting Personnel
Administrator v. Feeney, 442 U.S. 256, 279 n.25 (1979))).
¶ 35 Finally, we acknowledge that this court in the appeal of the defendant’s brother, Brian
Weston, rejected his claim of error in the admission of gang evidence. In that case, however,
“the trial court limited the State to arguing that only Travis was a gang member.” Weston,
slip op. at 12. No evidence that Brian Weston was a gang member was admitted. Id. at 13.
“It is less likely that the jury would hold the gang affiliation of [Travis Weston] against
[Brian Weston] than it would be had the evidence shown that defendant [Brian Weston]
himself was a gang member.” Id. Hence, our holding of error in this appeal does not conflict
with this court’s decision in Brian Weston’s appeal.
¶ 36 In sum, the evidence clearly demonstrated that the defendant’s acts were not inexplicable.
He engaged in the course of conduct that resulted in Tai’s death and the attempted murder
of Nyoka in a failed effort to recover weapons that he may have last seen in Nyoka’s
apartment, laid out on her bed. As the State acknowledged, the defendant’s criminal acts
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were primarily intended to help his cousin. The gang-related testimony did not have any
tendency to make the existence of a fact of consequence more or less probable. The
testimony was simply irrelevant, with nil probative value. The probative value of irrelevant
evidence can never outweigh its prejudicial impact. The circuit court erred in admitting the
gang-related testimony when it failed to first determine the proffered evidence was relevant
to an issue in the case. It necessarily follows that the circuit court abused its discretion in
concluding the probative value of the gang-related testimony exceeded its prejudicial impact.
¶ 37 Prejudice
¶ 38 The State contends that even if the gang evidence was erroneously admitted, the
defendant’s convictions should stand because his guilt was overwhelming. The defendant
counters that his guilt cannot be considered overwhelming in the absence of physical
evidence or a confession. We hold the gang-related evidence did not contribute to the
defendant’s conviction where the remainder of the evidence was more than sufficient to
persuade a reasonable jury of the defendant’s guilt beyond a reasonable doubt.
¶ 39 “The erroneous admission at trial of *** gang evidence does not automatically warrant
reversal.” Easley, 148 Ill. 2d at 330 (citing Smith, 141 Ill. 2d at 79). Such an error “is
harmless where the court is satisfied beyond a reasonable doubt that the error did not
contribute to the defendant’s conviction.” Davenport, 301 Ill. App. 3d at 153 (citing People
v. Colon, 162 Ill. 2d 23, 31-32 (1994)). “The effect of inflammatory evidence depends upon
the circumstances of the case.” Easley, 148 Ill. 2d at 330.
¶ 40 Consistent with the Easley, Davenport, and Colon decisions, the evidence of the instant
defendant’s gang affiliation was harmless beyond a reasonable doubt. In Easley, the trial
court allowed “various correctional officers” to testify that the defendant was a gang
member. Easley, 148 Ill. 2d at 328-29. The supreme court held that the trial court’s ruling,
while erroneous, did not deprive the defendant of a fair and impartial trial because the jury
heard inculpatory eyewitness testimony and had before it physical evidence linking the
defendant to the crime. Id. at 295, 328-30. In Davenport, this court affirmed a defendant’s
murder conviction in the face of the trial court’s “obnoxious” admission of gang evidence
because the evidence was “overwhelming” where an independent eyewitness positively
identified the defendant, though inculpatory physical evidence was absent. Davenport, 301
Ill. App. 3d at 149, 153. Similarly, the supreme court in Colon held that improperly admitted
gang evidence did “not warrant reversal of the circuit court’s judgment” because reliable
eyewitness testimony and circumstantial evidence made the evidence “overwhelming,” even
in the absence of inculpatory physical evidence. Colon, 162 Ill. 2d at 31-32, 41.
¶ 41 In the instant case, Nyoka’s intrepid character came through in her testimony–testimony
which might well have constituted overwhelming proof of the defendant’s guilt in the
absence of any other incriminating evidence. But the State had more. The testimony of
Colbert circumstantially corroborated the blame the defendant directed at Nyoka for the
missing weapons. The recovery of the weapons by the police in a dumpster corroborated
Nyoka’s testimony regarding the sisters’ interrogation by the defendant and his brother. In
light of this evidence, the unnecessary, but relatively insignificant testimony of the
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defendant’s gang affiliation was rendered harmless beyond a reasonable doubt.
¶ 42 We dismiss the defendant’s insubstantial challenges to Nyoka’s testimony based on her
testimony as to her work history, her claim that she left the closet light on, her description
of the haircut Brian Weston had, and the questions raised regarding who kicked down the
door to her apartment as nothing more than an impermissible request that we reweigh the
evidence. The unerasable fact is that Nyoka knew the defendant, going so far as to call him
“Travis” during the assault on the night in question. See Weston, slip op. at 7 (Nyoka’s
testimony was sufficiently reliable to convict the defendant’s brother, whose face was
obscured by a hood and whom she did not know prior to the night of the crime).
¶ 43 The overwhelming strength of the State’s case only serves to highlight the misguided
motion by the State to seek the introduction of gang-related testimony and the circuit court’s
erroneous decision to be swayed by the State’s argument. The specific challenges to the
gang-related evidence, regarding Nyoka’s testimony on the meaning of “Lord” and regarding
Colbert’s hearsay testimony, were rendered harmless beyond a reasonable doubt in light of
the overwhelming evidence that proved the defendant’s guilt beyond a reasonable doubt.
¶ 44 Closing Arguments
¶ 45 The defendant’s final contention is that he was substantially prejudiced by the State’s
comments in closing argument. The defendant complains of the following comments by the
prosecution:
“Guns in the world of gangs have attachments, attachments not only to crimes, like
to this crime, like the gun that this defendant and his brother, his partner in crime
used to extinguish Tai’s life and to try to kill Nyoka, they not only have those
connections to crimes, they have connections to other crimes because they can be
matched up back to things that happened years ago, back to things that happened
yesterday, back to things that happened two hours ago.”
¶ 46 To preserve an issue for appeal, a defendant must both object at trial and raise the issue
in his posttrial motion. Omission of either step results in forfeiture. People v. Woods, 214 Ill.
2d 455, 470 (2005). The defendant urges plain error review.
¶ 47 The plain error doctrine permits a reviewing court to address an unpreserved error when
(1) the evidence is so closely balanced that a clear and obvious error alone threatened to tip
the scales of justice against the defendant, or (2) an error so serious occurred that it affected
the fairness of the defendant’s trial and challenged the integrity of the judicial process.
People v. Herron, 215 Ill. 2d 167, 178-79, 186-87 (2005). As we concluded above, the
evidence was not close, which forecloses the defendant’s plain error claim under the first
prong. People v. Santiago, 409 Ill. App. 3d 927, 930 n.1 (2011).
¶ 48 We understand the defendant to urge review under the second prong of plain error when
he asserts the State “undermined the integrity of the proceedings by disparaging the defense
during closing rebuttal.” This claim is equally unavailing in the absence of supporting
authority. We are unpersuaded that the handful of comments the defendant points to as
offensive somehow undermined the integrity of the judicial process when the comments did
not trigger an objection by defense counsel. The lone comment the defense counsel objected
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to, that his argument “sounded like some kind of psycho babble,” could not have caused the
defendant substantial prejudice. See People v. Franklin, 135 Ill. 2d 78, 112 (1990) (the
defendant was not prejudiced by the prosecution’s remarks that the defendant’s closing
arguments were “ ‘shocking,’ ” “ ‘insulting,’ ” “ ‘bunk,’ ” and “ ‘abominable’ ”).
¶ 49 Given the thoroughly persuasive testimony of Nyoka, corroborated by the State’s other
evidence, no reasonable jury could have reached any other verdict but that the defendant was
guilty beyond a reasonable doubt of the charged offenses.
¶ 50 CONCLUSION
¶ 51 The trial court abused its discretion in admitting gang-related evidence, as the State failed
to demonstrate the relevance of the proffered testimony to warrant its admission.
Nonetheless, the highly credible eyewitness testimony against the defendant, which also
established his clear motive for the crimes, rendered the circuit court’s error harmless beyond
a reasonable doubt. In light of the overwhelming incriminating evidence, the defendant’s
challenges to the State’s closing arguments, including claims of plain error, are unavailing.
¶ 52 Affirmed.
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