Appendix — Martinez v. Illinois (No. 05-1134)

App. 6

learned later that day that his son had been killed.

Chicago police officer D. Finiey testified that

on December 17, 1998, he was dispatched to

Legion Park to investigate a possible death. Finley

arrived at Legion Park and saw the victim lying

face down. Finley could not feel a pulse on the

victim and called for an ambulance. Once the

victim’s body was turned over, Finley noticed

severe trauma to the victim’s head and face and a

bullet wound to the victim’s temple. Finley also

noticed a large tattoo on the victim’s abdomen.

Finlay believed the tattoo represented membership

in the Imperial Gangsters street gang. A set of

Ford keys was found in the victim’s pocket. Finley

found a white Ford van parked approximately 100

yards from Legion Park that matched the set of

keys.

Chicago police officer Vito Ricciardi testified

that he arrested Jill DeShon on a drug charge

unrelated to this case in February 1999. After the

arrest, Deshon /sic.] told Ricciardi she had

information relating to the victim’s killing. Based

on this information, Ricciardi began [p. 3]

investigating Bomkamp, Martinez and Iniguez.

Jill DeShon testified that on the evening of

December 16, 1998, she went to Legion Park with

some friends. Bomkamp, who DeShon knew as a

ranking member of the Simon City Royals street

App. 7

gang, was with DeShon at the park. DeShon left

the park by herself to meet Bonnie Lopez at a

nearby restaurant. DeShon brought Lopez back

with her to the park where Bomkamp had

remained. DeShon testified that at some point

after returning to the park, Martinez and Iniguez

arrived at the park. DeShon said Martinez was also

ranking member [sic.] of the Simon City Royals

street gang. Martinez and Iniguez were

accompanied by two men whose identity DeShon

did not know. The group stayed at the park,

drinking alcohol and smoking marijuana. DeShon

did not drink but she smoked some marijuana.

DeShon said the group left the park in

Martinez’s car at approximately 10 or 11 p.m.

They drove around for a while looking for drugs

and eventually stopped at a social club. Although

DeShon and Lopez were allowed to use the club’s

restroom, the doorman would not let the others

inside the club. DeShon saw the victim at the door,

talking with Bomkamp, Martinez, Iniguez and the

two unknown men. The victim left the club with

the group. DeShon got into Martinez’s car with

Martinez, Iniguez, Lopez and the two unknown

men. DeShon saw Bomkamp leave with the victim

in a white van. While in the car, DeShon heard

Iniguez say “they” were going to beat up the

victim.

The victim and Bomkamp followed the

App. 8

others to Legion Park. Once at the park, DeShon

and Lopez walked over to a bench and sat down.

The rest of the group stood nearby. DeShon saw

Bomkamp, Martinez, Iniguez and the two unknown

men start hitting the victim with their fists. The

victim fell to the ground and yelled for them to

stop. The men then began kicking the [p. 4] victim.

Bomkamp left the group and walked in the

direction of a fence iocated near the perimeter of

the park. Deshoin [sic.] believed the Simon City

Royals commonly hid guns near the fence.

Bomkamp returned with a gun and shot the victim.

After hearing the gunshot, DeShon told Lopez, who

- was pretty drunk at the time, to get up. The two

women walked over to Martinez’s car and got

inside. Martinez, Iniguez and one of the two men

got into the car with them. The other man stayed

behind and fired off more gunshots. DeShon saw

Bomkamp go to the victim’s van but did not see

what, if anything, he did to the van. Bomkamp and

the other shooter joined the rest of the group in

Martinez’s car and they drove away. Iniquez,

DeShon and Lopez were dropped off near DeShon’s

house. Iniguez told DeShon not to say anything

about what she had seen at the park.

DeShon said she was arrested by Officer

Ricciardi on a drug charge on February 4, 1999.

About one week later, DeShon called Ricciardi and

told him about the murder. DeShon said she had

not contacted police earlier because Iniguez had

App. 9

threatened her. After her February arrest,

DeShon’s mother convinced DeShon to c dntact the

police. The police did not offer DeShon a deal in

exchange for her testimony against Bomkamp,

Martinez and Iniguez.

On cross-examination, DeShon admitted to

being a drug user and having been arrested for

unlawful use of a weapon and possession of a

controlled substance with intent to deliver.

DeShon denied telling police about the murder to

get lenity on those charges. DeShon was living

with Lopez at the time she told Officer Ricciardi

about the victim’s murder. DeShon told Ricciardi

that Lopez had been with her at the park. DeShon

denied speaking with Lopez about the murder.

Doctor Tae Lyong An, a forensic pathologist

for Cook County, testified he performed an autopsy

on the victim. Dr. An saw several abrasions and

bruises to the victim’s face and body. /[p. 5] He also

saw three gunshot wounds, two entry wounds and

one exit wound. Tests showed that the victim had

consumed cocaine, heroin and alcohol before he

was killed. Dr. An believed the victim’s death was

caused by multiple gunshot wounds.

Oscar Montanez testified he was a member

of the Imperial Gangsters street gang and knew the

victim as a fellow member of that gang. Montanez

said members of the gang wear the colors black

App. 10

and pink and receive tattoos depicting the

“Imperial Gangster crown.” Montanez testified

that in the summer of 1998, he and the victim got

into a street fight with members of the Simon City

Royals. During the fight, the victim threw a can

and injured a Simon City Royal. Montanez said

neither Bomkamp, Martinez nor Iniguez was

present during the fight.

Montanez said that, on December 16, 1998,

he was at Bottoms Up Social Club when the victim

walked in with a group of Simon City Royals.

There were also two women with the group.

Montanez said the club was located inside Imperial

Gangster territory and told the victim that the

group could not enter. The victim told Montanez

that it was “cool” and he had grown up with the

men in the group. Montanez argued with the

victim and would not allow the group to come

inside. The two women were allowed inside but

only to use the restroom. Montanez saw the victim

get into a white van and drive away with the

group.

Bonnie Lopez testified she had known

Bomkamp for several years. Bomkamp was a

ranking member of the Simon City Royals. On

December 16, 1998, Lopez was at a restaurant

where she met Bomkamp and DeShon. She left

with Bomkamp and DeShon and went to Legion

Park. They were met at the park by Martinez and

App. 11

Iniguez. There were others in the park who Lopez

did not recognize. Lopez said that, after about an

hour, she got inside Martinez’s car with Bomkamp,

Martinez, Iniguez and Deshon [sic.]. The group

went to a social club where they met the [p. 6]

victim. Lopez and DeShon were allowed inside the

club to use the restroom but the men were not

allowed to enter. After Lopez and DeShon returned

from the restroom, the group left the club.

Martinez, Iniguez, DeShon and Lopez got into

Martinez’s car and drove back to the park. Lopez

said she was intoxicated at the time and did not

remember seeing Bomkamp or the victim at the

park. Lopez lay down on a park bench with

DeShon and rested. Lopez heard kicking and

someone yelling for help. She then heard a

gunshot. After the gunshot, DeShon told Lopez to

get up. DeShon and Lopez walked to Martinez’s

car. While walking, Lopez heard a couple more

gunshots. She got into the car with DeShon. They

were joined by Martinez. Martinez drove DeShon

and Lopez away from the park and warned them

not to say anything about what had happened.

DeShon and Lopez were dropped off near DeShon’s

house.

Lopez denied discussing the events of that

night with DeShon. It was not until February 1999,

that the police came to Lopez’s house to ask about

the victim’s murder. Lopez did not contact the

police herself because she was afraid of what might

happen to her.

Chicago police officer Joe Rodriguez testified

he was a gangs crime specialist for 26 years.

Rodriguez was assigned to investigate the victim’s

murder. He arrested Bomkamp, Martinez and

Iniguez in connection with the investigation.

Rodriguez identified several photographs of tattoos

found on Bomkamp, Martinez and Iniguez while in

police custody. Rodriguez testified the tattoos

represent the Simon City Royals street gang.

Rodriguez also identified photographs of tattoos

found on the victim’s abdomen that represent the

Imperial Gangsters street gang. Rodriguez said the

two gangs were fighting in the latter part of 1998.

Rodriguez said he was told this fact by Gabriel

Flores, who was in custody on a charge unrelated

to this case.

John Hart testified he was a forensic

scientist employed by the Illinois State Police. Hart

{[p. 7] analyzed a fingerprint and a palm print from

the victim’s white van. Hart matched both prints

to print identification cards made by Bomkamp.

At the conclusion of trial, the jury found

Bomkamp, Martinez and Iniguez guilty of first

degree murder and aggravated battery. Bomkamp

and Martinez were each sentenced to 50 years in

prison on the murder charges and a concurrent 5-

year prison term on the aggravated battery

App. 13

charges. Bomkamp and Martinez each appealed

and their appeals were consolidated here (Nos. 1-

02-2299 and 1-01-2300). Iniguez was sentenced to

40 years in prison. Iniguez has filed a separate

appeal from that conviction (No. 1-02-1182). The

arguments raised by Bomkamp and Martinez are

virtually identical.

Defendants first argue the indictment

against them is defective. Defendants maintain

counts I and II of the indictment are void because

they allege duplicitous mental states. Defendants

also maintain Count-Ht-of-the-indictment,-which-——........----—-

charges felony murder, is void because it is

premised on aggravated battery. Our review is de

novo. See People v. Edwards, 337 Ill. App. 3d 921,

921, 788 N.E.2d 35 (2002).

Count I of the indictment charges that

defendants committed first degree murder in that

they, without lawful justification, “intentionally or

knowingly,” shot the victim with a gun in violation

of section 9-1(a)(1) of the Criminal Code of 1961

(Code)(720 ILCS 5/9-1(a)(1)(West 1998)).

(Emphasis added.) Count II charges that

defendants committed first degree murder in that

they, without lawful justification, “shot and killed

[the victim] with a gun knowing that such shooting

with a gun created a strong probability of death or

great bodily harm to [the victim]” in violation of

section 9-1(a) (2) of the Code (720 ILCS 5/9-

App. 14

1(a)(2)(West 1998)). (Emphasis added.)

Defendants contend both charges are void because

they are duplicitous. [p. 8]

Duplicity occurs when two or more distinct

offenses are joined in the same count of an

indictment. Edwards, 337 Ill. App. 3d at 921. An

indictment is not duplicitous if it charges a single

offense in more than one way or pleads different

acts contributing to the ultimate charged offense.

Edwards, 337 Ill. App. 3d at 921. A duplicitous

indictment does not set forth the nature and

“elements of the charge with certainty, rendering

the complaint void. Edwards, 337 Ill. App. 3d at

921.

Counts I and II of defendants’ indictment are

not duplicitous. They charge defendants with

distinct offenses: first degree murder under section

9-1(a)(1) of the Code and first degree murder

under section 9-1({a)(2) of the Code. There has

been no joining of offenses in the separate charges.

The cases relied on by defendants are

distinguishable. See People v. Eagle Books, Inc.,

151 Ill. 2d 235, 602 N.E.2d 798 (1992); People v.

Capitol News, Inc., 137 Ill. 2d 162, 560 N.E.2d 303

(1990); People v. Heard, 47 Ill. 2d 501, 266 N.E.2d

340 (1970). The supreme court in those cases held

an indictment that charges a defendant in the

disjunctive is void if it alleges disparate and

App. 15

alternative acts, any one of which would constitute

the offense. Eagle Books, 151 Ill. 2d at 244-45;

Capitol News, 137 Ill. 2d at 174-75; Heard, 47 IIl.

2d at 504. Counts I and II of defendants’

indictment use the disjunctive to allege defendants’

mental states. They do not allege disparate and

alternative acts. Use of the disjunctive in these

circumstances did not cause uncertainty or

conjecture as to the crime defendants were

charged with committing. People v. Viser, 62 III.

2d 568, 580, 343 N.E.2d 903 (1975) (indictment

charging alternative mental states for murder does

not implicate duplicity concerns).

Because we find counts I and II were

properly charged, we need not consider

defendants’ [p. 9] argument with respect to count

Ill, felony murder. See People v. Cardona, 158 IIl.

2d 403, 411, 634 N.E.2d 720 (1994) (“[a] general

finding of guilty is presumed to be based on any

good count in the indictment to which the proof is

applicable”).

Defendants next argue the admission of gang

evidence deprived them of a fair trial. We will not

reverse the trial court’s admission of gang evidence

absent an abuse of discretion. People v. Johnson,

208 Ill. 2d 53, 102, 803 N.E.2d 405 (2003). Gang

evidence is admissible if it is relevant to an issue in

dispute and its probative value is not substantially

outweighed by its prejudicial effect. Johnson, 208

App. 16

Ill. 2d at 102. Evidence of gang affiliation is

relevant if it tends to make the existence of a fact

of consequence to the determination of the action

more probable or less probable than it would be

without the evidence. Johnson, 208 Ill. 2d at 102.

Defendants first challenge the admission of

Oscar Montanez’s testimony that he and the victim

were involved in a street fight with members of the

Simon City Royals in the summer of 1998.

Defendants argue the testimony should not have

been admitted because there was no evidence that

defendants were present or knew about the

incident. Defendants cite People v. Smith, 141 Ill.

2d 40, 565 N.E.2d 900 (1990).

The court in Smith held that, while it is

entirely proper for the State to prove motive, it is

not enough that the State merely produce evidence

of motive in the abstract. Smith, 141 Ill. 2d at 57.

“The motive must be attributable to the defendant

on trial at the time the crime was committed.”

Smith, 141 Ill. 2d at 57. The State in that case

attempted to prove the defendant was motivated

by gang affiliation to kill a prison warden who was

intolerant of gang activity inside the prison. Smith,

141 Ill. 2d at 58. The only evidence offered to

support the theory was that gang activity occurred

in the prison, the victim was intolerant of such

activity, the victim had [p. 10] an altercation with a

known gang member and the defendant was

App. 17

acquainted with the known gang member. Smith,

141 Ill. 2d at 58-59. The court held this was not

sufficient evidence to tie the defendant to the

State’s theory of motive. Smith, 141 Ill. 2d at 58-

59.

Unlike Smith, there was evidence in this case

that linked defendants to the State’s theory that the

victim’s murder was motivated by gang affiliation.

The evidence showed that defendants were

members of the Simon City Royals and the victim

was a member of the Imperial Gangsters. The

gangs did not always get along. The victim had

been involved in a street fight with members of

defendants’ gang months before the murder. And,

on the night of the murder, defendants were not

allowed inside a club located within Imperial

Gangster territory because they were Simon City

Royals.

The fact that defendants were not

themselves present during the summer street fight

does not defeat the State’s theory of motive. The

summer street fight was evidence that the two

gangs did not always get along and supported the

State’s theory that the gangs were fighting in

December 1998, when the victim was murdered.

It also supported the State’s theory that the victim,

who injured a Simon City Royal at the time of the

street fight, was a target of the Simon City Royals.

App. 18

Defendants next challenge the admission of

Officer Joe Rodriguez’s testimony that the Simon

City Royals and the Imperial Gangsters were

fighting in the latter part of 1998. Defendants

contend the evidence constituted impermissible

hearsay and violated their right to confront a

witness against them because it was based on an

out-of-court statement made by Gabriel Flores,

who did not testify at trial. See Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.

Ct. 1354 (2004). The State does not dispute the

inappropriateness of the [p. 11] testimony but,

rather, argues its admission was harmless beyond

a reasonable doubt.

Denial of the right to confront does not

warrant a reversal where the error was harmless

beyond a reasonable doubt. People v. Wilkerson,

87 Ill. 2d 151, 156-57, 429 N.E.2d 526 (1981).

There are three approaches to measuring whether

a constitutional error is harmless beyond a

reasonable doubt: (1) focusing on the error to

decide whether it might have contributed to the

conviction; (2) examining the other evidence in the

case to see if overwhelming evidence supports the

conviction; and (3) deciding whether the evidence

is cumulative or merely duplicates properly

admitted evidence. Wilkerson, 87 Ill. 2d at 157.

We find the error in this case harmless beyond a

reasonable doubt under the last two approaches.

App. 19

First, there was overwhelming evidence of

defendants’ guilt, including eye-witness testimony

implicating defendants in the crime. Jill DeShon

testified she heard Iniguez say they were going to

beat up the victim. DeShon and Oscar Montanez

saw Bomkamp get into a van with the victim the

night of the murder. Bomkamp’s fingerprint and

palm print were found on the van. Bomkamp and

the victim met the others at Legion Park. DeShon

saw defendants hitting and kicking the victim. She

then saw Bomkamp get a gun and shoot the victim.

Bonnie Lopez heard the fighting and the gunshots.

Next, Officer Rodriguez’s testimony was cumulative

of other evidence showing that the two gangs did

not always get along, incluing evidence of the

street fight and Montanez’s testimony that Simon

City Royals were not welcome in Imperial Gangster

territory.

Defendants next contend admission of

photographic evidence showing their gang tattoos

violated their fifth amendment right against self-

incrimination. See U.S. Const., amend. V.

Defendants maintain the photographs were

introduced to show they were members of the

Simon City Royals and were communicative or

testimonial in nature. The State argues the

privilege /p. 12] against self-incrimination does not

preclude a criminal defendant from being required

to exhibit physical characteristics. Holt v. United

States, 218 U.S. 245, 252-253, 54 L. Ed. 1021,

App. 20

1030, 31 S. Ct. 2, 6 (1910). “[{T]jhe prohibition of

compelling a man in a criminal court to be witness

against himself is a prohibition of the use of

physical or moral compulsion to extort

communications from him, not an exclusion of his

body as evidence when it may be material.” Holt,

218 U.S. at 252-253, 54 L. Ed. at 1030, 31 S. Ct. at

6.

We agree defendants /sic.] tattoos, unlike

other physical characteristics, are “communicative”

and “testimonial.” But because the tattoos were

not compelled communications, they are not

entitled to the protections guaranteed under the

fifth amendment. See Fisher v. United States, 425

U.S. 391, 409, 48 L. Ed. 2d 39, 55, 96 S. Ct. 1569,

1580 (1976) (the privilege against self-

incrimination applies only when the accused is

cc... > clled to make an incriminating testimonial

communication). We reject defendants’ argument

that the State’s taking of the photographs

amounted to compulsion within the meaning of the

fifth amendment. “[T]here is a significant

difference between the use of compulsion to extort

communications from a defendant and compelling

a person to engage in conduct that may be

incriminating.” United States v. Hubbell, 530 U.S.

27, 34-35, 147 L. Ed. 2d 24, 35, 120 S. Ct. 2037,

2042 (2000), citing Holt, 218 U.S. at 252-253, 54

L.Ed.2d at 1030, 31 S. Ct. at 6. For example, a

criminal suspect may be compelled to give a blood,

App. 21

writing or voice sample even though such conduct

may provide incriminating evidence. Hubbell, 530

U.S. at 35, 147 L. Ed. 2d at 35, 120 S. Ct. at 2042.

“The act of exhibiting such physical characteristics

is not the same as a sworn communication by a

witness that relates either express or implied

assertions of fact or belief.” Hubbell, 530 U.S. at

35, 147 L. Ed. 2d at 32, 120 S. Ct. at 2042. The

photographs here depict images that defendant

voluntarily /p. 13] had tattooed on their bodies and

are not protected by the fifth amendment. See

People v. Slavin, 1 N.Y.3d 392, 807 N.E.2d 259

(2004) (photographs of a defendant’s tattoos for

the purpose of showing motive are not protected

by the fifth amendment right against self-

incrimination because they do not constitute

compelled speech).

The cases cited by defendants are

distinguishable. See People v. Alksnis, 291 Ill. App.

3d 347, 682 N.E.2d 1112 (1997); Commonwealth

v. Happnie, 3 Mass. App. Ct. 193, 326 N.E.2d 25

(1975); People v. Wong, 35 Cal. App. 3d 812, 111

Cal. Rptr. 314 (1973). At issue in those cases was

whether a defendant can exhibit his body as

evidence of a fact without being subject to cross-

examination. The cases dealt with the testimonial

characteristics of such evidence and not whether

the evidence was compelled within the meaning of

the fifth amendment.

App. 22

Defendants next argue they were denied

their right to confront Jill DeShon, Bonnie Lopez

and Oscar Montanez. Defendants cite several

instances where the trial court sustained objections

by the State during the defense’s cross-examination

of these witnesses.

The right of an accused to confront a witness

against him includes the right to cross-examine.

People v. Blue, 205 Ill. 2d 1, 12, 792 N.E.2d 1149

(2001). But the scope of such cross-examination is

limited to the subject of direct examination and

permissible matter that affects the witness’s

credibility. Blue, 205 Ill. 2d at 13. The trial court

has discretion to impose reasonable limits on

cross-examination to guard against harassment,

prejudice, jury confusion, witness safety or

repetitive and irrelevant questioning. Blue, 205 IIl.

2d at 13. This discretionary authority arises only

after the court has permitted sufficient cross-

examination to satisfy the confrontation clause.

Blue, 205 Ill. 2d at 13.

Defendants cite 57 instances where they

believe they were denied their right to confront [p.

14] DeShon. The first set of challenges is to

testimony the defense sought to elicit about crimes

committed by DeShon. The record shows the

defense was given leeway to cross-examine DeShon

about these crimes in an attempt to discredit her in

front of the jury. The additional examination

App. 23

defendants sought to conduct was repetitive and

irrelevant. The second set of challenges concerns

testimony intended to show that DeShon had a

motive to fabricate her testimony against

defendants. Again, this testimony would have been

repetitive. Defendants were allowed an

opportunity to question DeShon extensively

concerning her bias and motives to fabricate. The

next set of challenges relates to the extent, if any,

of DeShon’s communications with Lopez after the

murder. Defendants were permitted to ask DeShon

whether she spoke with Lopez about the murder.

That defendants did not like her answers to their

inquiry does not amount to a denial of the right to

confront, nor does it give defendants the right to

ask repetitive questions on the subject. Defendants

next challenge testimony sought to elicit testimony

about DeShon’s drug habits. Again, the defense

was allowed to question DeShon on this subject.

Defendants’ final set of challenges concerns alleged

prior inconsistent statements to police. Defendants

were given wide latitude in examining DeShon

with respect to statements she made to police,

including inconsistencies and omissions within

those statements. The record shows defendants

were not denied their right to confront DeShon

through cross-examination and the trial court

correctly exercised its discretion in sustaining the

State’s objections to repetitive and irrelevant

testimony.

App. 24

Defendants next challenge testimony they

were prohibited from eliciting from Bonnie Lopez.

Defendants first argue they should have been able

to question Lopez about the extent, if any, she

spoke with DeShon about the murder. Defendants

were allowed to ask such questions. [p. 15] The

trial court merely sustained objections to repetitive

questioning on this subject. Defendants next

challenge a question to Lopez about a prior

inconsistent statement that Lopez admitted

making. The tria! court correctly sustained the

State’s objection to a follow-up question that was

argumentative. Defendants next argue they were

denied their right to ask Lopez about confusion

over the exact day the victim was murdered. The

record shows this line of questioning was also

argumentative and was properly objected to on this

ground. There is no dispute that the victim was

killed in the evening of December 16, 1998, or

early morning hours of December 17, 1998. The

trial court also properly sustained objection to

defendants’ questi#ning of Lopez about her

memory of that migAt as argumentative.

Defendants next <tailenge the State’s objections to

questions relatisg to Lopez’s knowledge of

DeShon’s motives to fabricate. The trial court

properly sustained the objections as speculative

and argumentative. The court also properly

sustained objections to repetitive questioning

about prior inconsistent statements and Lopez’s

failure to contact police, as well as argumentative

App. 25

questions about Lopez’s conversations with

DeShon.

Defendants’ final set of challenges relates to

Oscar Montanez’s testimony. Defendants first

argue they were denied the right to question

Montanez regarding whether he spoke with Gabriel

Flores about the police investigation. Defendants

maintain the questioning was relevant to whether

Montanez fabricated his testimony. The record

shows defendants were permitted to develop this

line of questioning. We see no denial of the right

to confront on this issue. Defendants next argue

the trial court erred in sustaining an objection to a

question relating to Montanez’s motive for

testifying. The trial court properly sustained the

objection as argumentative. Defendants argue the

trial court erred in sustaining an objection to a

question /p. 16] concerning the rivalry between the

Simon City Royals and the Imperial Gangsters. The

objection was properly sustained on the ground

that the question was repetitive. Finally,

defendants argue they were denied their right to

confront when the trial court sustained the State’s

objection to a question directed at whether

Montanez knew of the victim’s heroin use. The

objection was properly sustained because the

question was irrelevant and evidence of the

victim’s heroin use had already been admitted.

Defendant were not denied their right to

App. 26

confront the witnesses against them. To the

contrary, we find that they were equipped with

attorneys who performed competent and zealous

cross-examinations of the witnesses. As noted

earlier, the right to cross-examine is not without

limitation. The trial court properly exercised

discretion to limit the defense from irrelevant,

repetitive and argumentative questioning.

Defendants next challenge three of the jury

instructions. Defendants first argue the trial court

erred in refusing to give defendants’ tendered

Illinois Patter /sic.] Jury Instruction 3.17 (IPI 3.17),

advising the jury on the unreliability of accomplice

testimony. That instruction reads:

“When a witness says he was

involved in the commission of a crime

with the defendant, the testimony of that

witness is subject to suspicion and should

be considered by you with caution. It

should be carefully examined in light of

the other evidence in the case.” Illinois

Pattern Jury Instructions, Criminal, No.

3.17 (4th ed. 2000).

An accomplice instruction should be given if there

is probable cause to believe the witness was guilty

either as a principal or under a theory of

accountability. People v. Cobb, 97 Ill. 2d 465, 476,

455 N.E.2d 31 (1983). An accomplice is one who

App. 27

could himself have been indicted for the [p. 17]

offense either as a principal or as an accessory.

Cobb, 97 Ill. 2d at 476. We will not reverse the

trial court’s refusal to give an accomplice

instruction absent an abuse of discretion. See

People v. Davis, 213 Ill. 2d 459, 821 N.E.2d 1154

(2004).

Defendants maintain they were entitled to a

cautionary accomplice instruction with regard to

DeShon’s testimony. Defendants cite People v.

Carreon, 162 Ill. App. 3d 900, 516 N.E.2d 372

(1987), as analogous to this case. The court in that

case held the jury should have been given an

accomplice instruction with regard to a witness

who testified against the defendant where the

witness was with the defendant before the crime,

followed the defendant’s direction during the

commission of the crime, remained with the

defendant after the crime, shared in the proceeds

of the crime with the defendant and did not

contact the police to report the crime. Carreon,

162 Ill. App. 3d at 994-95. Defendants also cite

People v. Love, 285 Ill. App. 3d 784, 674 N.E.2d

824 (1996). The court there held an accomplice

instruction was appropriate where a witness

against the defendant was part of the defendant’s

drug operation and the crime the defendant was

accused of committing was in furtherance of the

drug operation. Love, 285 Ill. App. 3d at 792.

Although there was no evidence that the witness

App. 28

had knowledge of the crime, the witness was part

of the illegal enterprise that the defendant was

arguably intending to further by committing the

crime. Love, 285 Ill. App. 3d at 792.

The distinguishing factor between Carreon

and Love and this case is the absence of evidence

that DeShon benefitted from the crime. The

witness in Carreon received cash proceeds from the

crime. Carreon, 162 Ill. App. 32d at 995. The

witness in Love was part of the unlawful enterprise

that was furthered by the crime. Love, 285 Ill. App.

3d at 792. The evidence here merely showed that

DeShon was with defendants the night of the

offense and was present at the /p. 18] park when

defendants murdered the victim. See Cooper, 194

Ill. 2d at 434 (mere presence during the

commission of a crime is insufficient to warrant an

accomplice instruction). There was no evidence

that DeShon aided or abetted in the killing or that

she benefitted from the victim’s murder.

Defendants next argue the trial court erred

in refusing to give the jury a non-IPI addict

instruction with regard to DeShon’s testimony.

An addict instruction advises the jury that the

testimony of a drug or alcohol abuser must be

examined and weighed by the jury with greater

care than the testimony of a witness who does not

abuse drugs or alcohol. See Federal Jury Practice

& Instruction, Criminal, No. 15.05 (Sth ed. 2001).

App. 29

The decision of whether to give a non-IPI

instruction rests within the sound discretion of the

trial court. People v. Simms, 192 Ill. 2d 348, 412,

736 N.E.2d 1092 (2000). An abuse of discretion is

committed only where there is no IPI instruction

that applies to the particular subject. Simms, 192

Ill. 2d at 412.

While parties are entitled to cross-examine

witnesses about drug use, they are-not entitled to

have the jury instructed on the unreliability of

testimony by drug addicts. People v. Armstrong,

183 Ill. 2d 130, 146, 700 N.E.2d 960 (1998). It is

not reversible error to deny a tendered addict

instruction where evidence of the addiction is

before the jury. People v. Steidl, 142 Ill. 2d 204,

238, 568 N.E.2d 837 (1991). “ ‘Jurors do not leave

their common sense behind when they enter court,

and even in the absence of cautionary instructions

they will ordinarily be aware of the factors which

make some witnesses unreliable.’ ” Steidl, 142 IIl.

2d at 238, quoting People v. Rollins, 108 Ill. App.

3d 480, 488, 438 N.E.2d 1322 (1982).

The jury here was informed of DeShon’s

drug addiction and drug use on the night in

question. The defense used this evidence to

discredit DeShon before the jury. An addict /p. 19)

instruction would have placed undue emphasis on

the evidence. The jury here was properly

instructed as follows:

App. 30

“Only you are the judges of the

believability of the witnesses and of the

weight to be given the testimony of each

of them. In considering the testimony of

any witness, you may take into account

his ability and opportunity to observe, his

memory, his manner while testifying, any

interest, bias or prejudice he may have,

and the reasonableness of his testimony

considered in the light of all the evidence

in the case.”

See IPI 1.02 (Illinois Pattern Jury Instructions,

Criminal, No. 1.02 (4th ed. 2000)). This

instruction adequately informed the jury of the

basis on which it should evaluate DeShon’s

testimony, including her ability to observe and her

memory. The trial court did not abuse its

discretion by refusing to give defendant’s addict

instruction.

Lastly, defendants argue the jury was

improperly instructed that aggravated battery

could serve as a predicate for felony murder.

Defendants cite People v. Morgan, 197 Ill. 2d 404,

447, 758 N.E.2d 813 (2001), for the proposition

that, “where the acts constituting forcible felonies

arise from and are inherent in the act of murder

itself, those acts cannot serve as predicate felonies

for a charge of felony murder.” But defendants’

aggravated battery of the victim, the hitting and

App. 31

kicking of the victim, was not inherent in, nor did

it arise out of, the act of murder itself. The victim

died from multiple gunshot wounds—accomplished

by shooting the victim—and not injuries resulting

from defendants’ beating of the victim. See Davis,

213 Ill. 2d at 473-75 (Morgan applies only where

the act constituting the underlying felony was

inherent in, and arose out of, the killing). The jury

was properly instructed on felony murder. [p. 20]

Because we reject all of defendants’

contentions of error, we also reject defendants’

contention that cumulative error deprived them of

a fair trial. Defendants’ convictions are affirmed.

Affirmed.

CAHILL, P.J., with McBRIDE and O’MALLEY,

JJ., concurring.

App. 32

APPENDIX E

The Due Process and Equal Protection Clauses of

the Fourteenth Amendment to the United States

Constitution

U.S. Const., amend. XIV, Section 1:

“(njor shall any state deprive any

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.”

App. 33

APPENDIX F

RAISING THE FEDERAL QUESTION

Petitioners raised the federal question in the

Illinois Supreme Court. The question - that the

Appellate Court’s different treatment of similarly-

situated, jointly-tried defendants on direct appeal,

re the same (gang evidence) issue, without rational

basis, violates due process of law and equal

protection of the laws, per U.S. Const., amend. XIV

— was raised at p. 9 of each petitioner’s Amended

Supplement to Petition for Leave to Appeal. Leave

to Appeal was denied. (Apps. A and B)

This question did not exist until after the

Appellate Court affirmed petitioners’ convictions

and sentences (App. D), yet reversed and

remanded in co-defendant Iniguez’s case (App. G)

- albeit all three were indicted together and

convicted by the same jury on the same evidence in

a joint trial; none testified; none was present at a

prior gang fight that was the basis for the State

presenting gang motive evidence; and the gang

evidence admitted as to all three was the same.

This did not occur until after petitioners had filed

their Petitions for Leave to Appeal in the Supreme

Court of Illinois. That Court allowed them to

amend and supplement their pending PLA’s to

include the federal question; so petitioners raised

it at their earliest opportunity after it came to exist.

App. 34

APPENDIX G

SECOND DIVISION

October 18, 2005

[Issued as unpublished Rule 23 Order dated 9/7/05;

issued as published Opinion dated 10/18/05 on motion

of Appellant Iniguez.” ]

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

No. 1-02-1182

Kazmierski, Jr.,

Judge Presiding.

THE PEOPLE OF THE ) Appeal from the

STATE OF ILLINOIS, ) Circuit Court of

) Cook County.

Plaintiff-Appellee, )

) No. 99 CR 12134

Vv. )

) Honorable

JEFF INIGUEZ, ) Joseph G.

)

)

Defendant-Appellant.

JUSTICE WOLFSON, delivered the opinion of the

court:

[ “ (Footnote, added by petitioners’ counsel.} The Rule 23

Order cites Illinois cases by official citation only, while

the Opinion includes the parallel West (N.E.2d) cites.

App. G includes both, with N.E.2d cites in brackets. ]

App. 35

Defendant Jeff Iniguez was convicted of first

degree murder and aggravated battery. The trial

court sentenced him to 40 years in prison for

murder and a concurrent 5-year term for

aggravated battery. On appeal, defendant

contends (1) the trial court erred in instructing the

jury on the reliability of eyewitness testimony;

(2) he was denied a fair trial by the admission of

prejudicial and excessive gang evidence; (3) the

indictment against him was deficient; (4) the

State’s eyewitness testimony was insufficient to

prove his guilt beyond a reasonable doubt; and

(S) the State failed to prove his guilt on a theory

of accountability. We reverse and remand. [p. 2]

FACTS

lan Bomkamp, Oscar Martinez, and

defendant were tried together before a jury for the

first degree murder and aggravated battery of

Walter Warlyn. The following evidence was

presented at their trial.

The victim’s father, Roland Warlyn, testified

he owned a building in Chicago that housed his

catering business. The victim lived in the

apartment in the building and worked at Roland’s

catering business. Roland was aware that the

victim was a heroin user and a member of a street

gang. On December 16, 1998, Roland gave the

victim permission to borrow a white Ford catering

App. 36

van to go out for the evening. When Roland

arrived at work the following morning, he noticed

the lights in the building had been left on and fast

food cups were lying on the floor. The victim did

not show up for work. Roland learned later that

day that his son had been killed.

Chicago police officer D. Finley testified that

on December 17, 1998, he was dispatched to

Legion Park to investigate a possible death. Finley

arrived at Legion Park and saw the victim lying

face down. Finley could not feel a pulse on the

victim and called for an ambulance. Once the

victim’s body was turned over, Finley noticed

severe trauma to the victim’s head and face and a

bullet wound to the victim’s temple. Finley also

noticed a large tattoo on the victim’s abdomen.

Finley believed the tattoo [p. 3] represented

membership in the Imperial Gangsters street gang.

He found a set of Ford keys in the victim’s pocket.

A white Ford van parked approximately 100 yards

from Legion Park matched the set of keys.

Chicago police officer Vito Ricciardi testified

that he arrested Jill DeShon on a drug charge

unrelated to this case in February 1999. After the

arrest, DeShon told Ricciardi she had information

relating to the victim’s killing. Based on this

information, Ricciardi began investigating

Bomkamp, Martinez, and defendant.

App. 37

DeShon testified that on the evening of

December 16, 1998, she went to Legion Park with

some friends. Bomkamp, a ranking member of the

Simon City Royals street gang, was with DeShon in

the park. DeShon left the park by herself to meet

Bonnie Lopez at a nearby restaurant. DeShon

brought Lopez back with her to the park where

Bomkamp had remained. DeShon testified that at

some point after returning to the park, Martinez,

also a ranking member of the Simon City Royals

gang, and defendant arrived. Martinez and

defendant were accompanied by two men whom

DeShon did not know. The group stayed at the

park drinking alcohol and smoking marijuana.

DeShon did not drink but she smoked some

marijuana.

DeShon said the group left the park in

Martinez’s car at approximately 10 or 11 p.m.

They drove around looking for drugs /p. 4] and

eventually stopped at a social club. Although

DeShon and Lopez were allowed the use the

restroom, the doorman would not let the others

inside the club. DeShon saw the victim at the door

talking with Bomkamp, Martinez, defendant, and

the two unknown men. The victim left the club

with the group. DeShon got into Martinez’s car

with Martinez, defendant, Lopez, and the two men.

DeShon saw the victim and Bomkamp leave in a

white van. While in the car, DeShon heard

defendant say they were going to beat up the victim.

App. 38

The victim and Bomkamp followed the

others to Legion Park. Once at the park, DeShon

and Lopez sat down on a bench. The rest of the

group stood nearby. DeShon saw Bomkamp,

Martinez, defendant, and the two unknown men

start hitting the victim with their fists. The victim

fell to the ground and yelled for them to stop. The

men then began kicking the victim. Bomkamp left

the group and walked in the direction of a fence

located near the park’s perimeter. DeShon

believed the Simon City Royals commonly hid guns

near the fence. Bomkamp returned with a gun and

shot the victim. After hearing the gunshot, DeShon

told Lopez, who was drunk at the time, to stand.

The women walked over to Martinez’s car and got

inside. Martinez, defendant, and one of the other

men got into the car with them. The other man

stayed behind and fired off more gunshots.

DeShon saw Bomkamp go to the victim’s van but

did not see what, if anything, he did to the [p. 5]

van. Bomkamp and the other shooter joined the

rest of the group in the car and drove away.

Defendant, DeShon, and Lopez were dropped off

near DeShon’s house. Defendant told DeShon not

to say anything about what she had seen at the

park.

DeShon said she was arrested by Officer

Ricciardi on a drug charge on February 4, 1999.

Approximately one week later, DeShon called

Ricciardi and told him what happened on

App. 39

December 16, 1998. DeShon’s mother convinced

her to contact police after she was arresied.

DeShon said she had not contacted police earlier

because defendant had threatened her. Deshon

[sic.] testified that the police did not offer her a

deal in exchange for her testimony against

Bomkamp, Martinez, and defendant.

On cross-examination, DeShon admitted

using a variety of drugs, including LSD, cocaine,

mushrooms, PCP, Valium, amphetamines, and

marijuana. DeShon admitted she had been

arrested for unlawful use of a weapon and

possession of a controlled substance with intent to

deliver. After her arrest, she told police about the

shooting. Deshon [sic.] pleaded guilty to the

charges, was placed on probation, and immediately

broke the terms of her probation. She moved to

Colorado and dropped out of a drug rehabilitation

program. DeShon remained a fugitive until March

27, 2001.

DeShon denied telling police about the

murder to get lenity on those charges. DeShon

gave a written statement to police and [p. 6/

testified before the grand jury. In both instances,

she said she met the victim on the evening of

December 17, 1998. When asked about her

previous statement, DeShon testified she “did not

know” the victim was found dead the morning of

December 17, 1998. DeShon admitted she

App. 40

provided a time line of the shooting to police in

February 1999, but did not remember telling a

detective the victim was killed between 10 and

10:30 p.m.

Doctor Tae Lyong An, a forensic pathologist

for Cook County, testified he performed an autopsy

on the victim. Dr. An saw several abrasions and

bruises on the victim’s face and body. He also saw

three gunshot wounds-two entry wounds and onrie

exit wound. Tests showed that the victim had

consumed cocaine, heroin, and alcohol before he

was killed. Dr. An believed the victim’s death was

caused by multiple gunshot wounds.

Oscar Montanez testified he was a member

of the Imperial Gangsters street gang and knew the

victim as a fellow gang member. Montanez said

members of his gang wear the colors black and

pink and receive tattoos depicting the Imperial

Gangster crown. Montanez testified that in the

summer of 1998, he and the victim got into a street

fight with members of the Simon City Royals.

During the fight, the victim threw a can and

injured a Simon City Royal [sic.] member.

Montanez said neither Bomkamp, Martinez, nor

defendant was present during the fight.

Montanez testified that he was at the

Bottoms Up Sociai Club [p. 7] on December 16,

1998, when the victim walked in with a group of

App. 41

Simon City Royals. There were also two women in

the group. Montanez said the club was located

inside Imperial Gangster territory and told the

victim that the group could not enter. The victim

told Montanez that “it was cool” and that he had

grown up with the men in the group. Montanez

argued with the victim and would not allow the

group to come inside. The two women were

allowed inside but only to use the restroom.

Montanez saw the victim get into a white van and

drive away with the group.

Bonnie Lopez testified she had known

Bomkamp for several years and that he was a

ranking member of the Simon City Royals. On

December 16, 1998, Lopez was at a restaurant

where she met Bomkamp and DeShon. She left

with Bomkamp and DeShon and went to Legion

Park. Martinez and defendant joined them there.

Lopez did not recognize others in the park. After

one hour, she went with Bomkamp, Martinez,

DeShon, and defendant to a social club where they

met the victim. Lopez and DeShon used the club’s

restroom, but the others were not admitted inside.

Lopez returned to the park with Martinez, DeShon,

and defendant.

Lopez admitted she was intoxicated at the

time and did not remember seeing Bomkamp or

the victim at the park. She lied down on a park

bench and rested. She heard kicking, someone

App. 42

yelling for help, and a gunshot. After the gunshot,

DeShon told Lopez to get up, and the two women

walked back to Martinez’s car. While /[p. 8/

walking, Lopez heard two more shots fired. She

and Deshon /sic.] got into the car and were joined

by Martinez. He warned the two women not to say

anything about what happened and dropped them

off near DeShon’s house. Lopez denied discussing

the events with DeShon. Lopez did not talk to

police until February 1999, when they came to her

house to ask about the victim’s murder. Lopez said

she did not contact police out of fear of what might

happen to her.

Chicago police officer Joe Rodriguez testified

he had worked as a gang crimes specialist for 26

years. Rodriguez was assigned to investigate the

victim’s murder. He arrested Bomkamp, Martinez,

and defendant in connection with the investigation.

Rodriguez identified several photographs of tattoos

found on Bomkamp, Martinez, and defendant while

they were in police custody. Rodriguez testified

the tattoos represent the Simon City Royals street

gang. Rodriguez also identified photographs of

tattoos found on the victim’s abdomen that

represent the Imperial Gangsters street gang.

Rodriguez said the two gangs were fighting in the

latter part of 1998.

John Hart testified he was a forensic

scientist employed by the Illinois State Police. Hart

App. 43

analyzed a fingerprint and a palm print lifted from

the victim’s white van. Hart matched both prints

to print identification cards made by Bomkamp.

The defense called Chicago police officer

Dwayne Johnson as [p. 9] a witness. Johnson

testified he was assigned to investigate the victim’s

death. Johnson found a watch, bracelet, and piece

of paper near the victim’s body. These items were

not inventoried or tested. Nor was testing

performed on the jacket the victim wore at the

time of the shooting. On December 17, 1998, the

victim’s father told Johnson he saw empty fast food

cups lying around when he arrived at work the

morning after his son was killed. Johnson did not

analyze the cups or search the area for fingerprints.

At the conclusion of trial, the jury found

defendant guilty of first degree murder and

aggravated battery. Defendant was sentenced to

40 years’ imprisonment for first degree murder and

a concurrent 5-year prison term for aggravated

battery.

DECISION

I. Jury Instructions

A. IPI 3.15

On appeal, defendant challenges the use of

App. 44

Illinois pattern Jury Instruction 3.15 (IPI 3.15)

(Illinois Pattern Jury Instructions, Criminal, No.

3.15 (4th ed. 1000 /sic.])). At the time of

defendant’s trial, IPI 3.15 read:

“When you weigh the identification

testimony of a witness, you should consider

all the facts and circumstances in evidence,

including, but not limited to the following:

[p. 10]

[1] The opportunity the witness had to

view the offender at the time of the offense.

[or]

[2] The witness’s degree of attention at

the time of the offense.

[or]

[3] The witness’s earlier description of

the offender.

[or]

[4] The level of certainty shown by the

witness when confronting the defendant.

[or]

App. 45

[5] The length of time between the

offense and the identification

confrontation.” Illinois Pattern Jury

Instructions, Criminal, No. 3.15 (4th ed.

2000).

The instruction has since been changed to

omit the word “or” between each of the five

factors. See Illinois Pattern Jury Instructions,

Criminal, No. 3.15 (4th ed. 2000)(Supp. 2003).

Defendant contends the use of the word “or”

between the factors improperly instructed the jury

it could consider any of the five individual factors

rather than all of the factors in evaluating

DeShon’s identification testimony. The State

responds [p. 11] that defendant has waived the

argument by failing to object to the instruction at

trial or raise the issue in a posttrial motion. We

agree. Defendant’s failure to challenge the

instruction at trial or in his posttrial motion

forfeited review of the issue. See People v. Harvey,

211 Ill. 2d 368, 385 [813 N.E.2d 181, 192] (2004)

(a defendant’s failure to object at trial and to raise

the issue in a posttrial motion operates as a waiver

of the right to raise the issue as a ground for

reversal on review).

We nonetheless review defendant’s

argument under the plain error doctrine. See

People v. Herron, 215 Ill. 2d 167 [830 N.E.2d 467,

App. 46

482] (2005). In Herron, the Illinois Supreme Court

found use of “or” between the factors of IPI 3.15

rendered the instruction “ambiguous and

misleading, regardless of any further comment on

it by the State in its closing argument.”' Herron,

215 Ill. 2d at 191 [830 N.E.2d at 482]. The court

said, “giving IPI Criminal No. 3.15 with the ‘ors’ is

indeed plain error.” Herron, 215 Ill. 2d at 191

[830 N.E.2d at 482]. But that does not mean

reversal of defendant’s conviction is automatic.

See Herron, 215 Ill. 2d at 192-93 [830 N.E.2d at

482-83]. Defendant has the burden of showing the

“evidence was so closely balanced that the error

alone severely threatened to tip the scales of

justice [p. 12] against him.” Herron, 215 Ill. 2d at

187 [830 N.E.2d at 479].

A case relying almost entirely on the self-

contradictory testimony of a drug-using intoxicated

witness who contacted the police two months after

the killing, when she was facing two felony charges

and was a fugitive for two years before testifying,

hardly can be characterized as an odds-on favorite

for the State. This was a close case. It would not

take much to tip the scales one way or the other.

' We reserved ruling in this case until the

supreme court decided the jury instruction issue

in Herron because we understood it would be

outcome determinative.

App. 47

Given that setting, we find it reversible error

to give the defective identification instruction, IPI

3.15. See Herron, 215 Ill. 2d at 191 [830 N.E.2d at

482]. Because the evidence was so closely

balanced, the error “severely threatened to tip the

scales of justice against” the defendant.

Accordingly, we reverse his conviction and remand

the cause for a new trial. See Herron, 215 Ill. 2d at

187 [830 N.E.2d at 479].

Because we are remanding for a new trial,

we will consider other claims of error that could

again surface.

B. The non-IPI instruction on witnesses who

are addicts

Defendant contends the trial court erred in

refusing to give the jury a non-IPI addict

instruction. The State responds that the trial court

adequately instructed the jury on DeShon’s

credibility.

The decision of whether to give a non-IPI

instruction rests within the sound discretion of the

trial court. People v. Simms, [p. 13] 192 Ill. 2d

348, 412 [736 N.E.2d 1092, 1133] (2000). An

abuse of discretion is committed only where there

is no IPI instruction that applies to the particular

subject. Simms, 192 Ill. 2d at 412 [736 N.E.2d at

1133]. The trial court here instructed the jury as

App. 48

follows:

“Only you are the judges of the

believability of the witnesses and of the

weight to be given the testimony of each of

them. In considering the testimony of any

witness, you may take into account his

ability and opportunity to observe, his

memory, his manner while testifying, any

interest, bias or prejudice he may have, and

the reasonableness of his testimony

considered in the light of all the evidence in

the case.”

The parties on appeal mistakenly refer to

this instruction as IPI 3.12 but the instruction

parallels IPI 1.02 (Illinois Pattern Jury Instructions,

Criminal, No. 1.02 (4th ed. 2000)).

Defendant argues the above instruction

alone was insufficient to instruct the jury on the

reliability of DeShon’s testimony. Defendant

contends the jury should have been given his

tendered federal pattern jury instruction :elating to

addict testimony. See Federal Jury Practice &

Instruction, Criminal, No. 15.05 (Sth ed. 2001).

The instruction advises the jury that /p. 14] the

testimony of a drug or alcohol abuser must be

examined and weighed by the jury with greater

care than the testimony of a witness who does not

abuse drugs or alcohol. See Federal Jury Practice

App. 49

& Instruction, Criminal, No. 15.05 (5th ed. 2001).

While parties are entitled to cross-examine

witnesses about drug use, they are not entitled to

have the jury instructed on the unreliability of

testimony by drug addicts. People v. Armstrong,

183 Ill. 2d 130, 146 [700 N.E.2d 960, 967] (1998).

Nor is it reversible error to deny a tendered addict

instruction where evidence of the addiction is

before the jury. People v. Steidl, 142 Ill. 2d 204,

238 [568 N.E.2d 837, 851] (1991). “ ‘Jurors do not

leave their common sense behind when they enter

court, and even in the absence of cautionary

instructions they will ordinarily be aware of the

factors which make some witnesses unreliable.’ ”

Steidl, 142 Ill. 2d at 238 [568 N.E.2d at 851],

quoting People v. Rollins, 108 Ill. App. 3d 480, 488

[438 N.E.2d 1322, 1328] (1982).

The jury was informed of DeShon’s drug

addiction and drug use on the night in question.

The defense used this evidence to discredit DeShon

before the jury. An addict instruction would have

placed undue emphasis on the evidence. IPI 1.02,

on the other hand, adequately informed the jury of

the basis on which it should evaluate DeShon’s

testimony, including her ability to observe and her

memory. The trial court did not abuse its

discretion by refusing to give defendant’s addict

instruction.

App. 50

C. IPI 3.17 [p. 15]

Defendant contends the trial court erred in

refusing to instruct the jury on the unreliability of

accomplice testimony. Specifically, defendant

challenges the trial court’s refusal to use Illinois

Pattern Jury Instruction 3.17 (IPI 3.17), which

reads: i

“When a_witness says he was involved

in the commission of a crime with the

defendant, the testimony of that witness is

subject to suspicion and should be

considered by you with caution. It should be

carefully examined in light of the other

evidence in the case.” Illinois Pattern Jury

Instructions, Criminal, No. 3.17 (4th ed.

2000).

An accomplice instruction should be given if

there is probable cause to believe the witness was

guilty either as a principal or under a theory of

accountability. People v. Cobb, 97 Ill. 2d 465, 476

[455 N.E.2d 31, 35] (1983). An accomplice is one

who could himself have been indicted for the

offense either as a principal or as an accessory.

Cobb, 97 Ill. 2d at 476 [455 N.E.2d at 35]. There

was no evidence here that DeShon shot and killed

the victim. Nor was there probable cause to

believe she aided or abetted in the killing. DeShon

was merely present at the scene of the crime—a fact

App. 51

insufficient to show probable cause of guilt under a

theory [p. 16] of accountability. See Cooper, 194

Ill. 2d at 434 [743 N.E.2d at 42]. The trial court

did not abuse its discretion in omitting IPI 3.17.

II. Admission of gang evidence

Defendant contends the introduction of

prejudicial gang evidence denied him a fair trial.

He contends evidence of a street fight between the

victim and a Simon City Royals gang member

should not have been admitted to show motive

because there was no indication Bomkamp,

Martinez, or defendant knew about the fight.

Defendant also contends the amount of gang

evidence admitted at trial was excessive, especially

Officer Rodriguez’s testimony about the general

organization of gangs, including the Imperial

Gangsters and Simon City Royals, gang colors,

symbols, hand signals, and the tattoos found on

Bomkamp, Martinez, defendant, and the victim.

We will reverse a conviction based on the

admission of gang evidence only if the trial court

abused its discretion in admitting it. People v.

Johnson, 208 Ill. 2d 53, 102 [803 N.E.2d 405, 433]

(2003). Gang evidence is admissible if it is

relevant to an issue in dispute and its probative

value is not substantially outweighed by its

prejudicial effect. Johnson, 208 Ill. 2d at 102 [803

N.E.2d at 433]. “Evidence of gang affiliation is

App. 52

relevant if it tends to make the existence of a fact

of consequence to the determination of the action

more or less probable than it would be without the

evidence.” Johnson, 208 Ill. 2d at 102 [803 N.E.2d

at 433]. [p. 17]

In this case, the State inundated the jury

with evidence about street gangs. Joe Rodriguez,

whom the prosecution referred to as “Gang

Specialist Rodriguez,” gave the jury an in-depth

lesson on street gangs in Chicago, describing their

structure, territories, and alliances. He covered

every topic from the colors gang members wore to

the graffiti symbols they use to mark their

territory. He also reviewed 19 photographs

introduced by the prosecution. Each photograph

depicted tattoos belonging to Bomkamp, Martinez

and defendant. Rodriguez testified how each

tattooed symbol represented gang membership.

Officer Ricciardi also testified at length

about Chicago street gangs, their territories, colors,

and allegiances. Another officer testified about

defendant’s tattoos, several of which included the

words “Simon City Royals.”

The prosecution’s opening statement and

closing argument were peppered with references to

gangs. The assistant State’s attorney referred to

defendant’s gang, its colors, hand signs, and

tattoos. Twice, he argued the victim’s participation

App. 53

in an earlier gang fight was defendant’s motive to

commit murder.

Although this extensive amount of gang

evidence was allowed, there was no evidence the

defendant was aware of the so-called motivating

fact—a street gang fight six months before the

killing. See People v. Smith, 141 Ill. 2d 40, 56-57

[565 N.E.2d 900, 906-07] (1990). The effect, if not

the purpose, of the gang evidence was to stir the

[p. 18] emotions of the jury. Probative value was

virtually nil. We find the admission of this

evidence was reversible error.

Ill. Validity of the Indictment

Defendant contends counts I and II of the

indictment are void because they allege duplicitous

mental states. Defendant also maintains count II

of the indictment, which charges felony murder, is

void because it is premised on aggravated battery.

Our review is de novo. See People v. Edwards, 337

Ill. App. 3d 912, 921 [788 N.E.2d 35, 43] (2002).

Count I of the indictment charges that

defendant committed first degree murder in that

he, without lawful justification, “intentionally or

knowingly,” shot the victim with a gun in violation

of section 9-1(a)(1) of the Criminal Core of 1961

(Code) (720 ILCS 5/9-1(a)(1)(West 1998)).

(Emphasis added.) Count II charges that

App. 54

defendant committed first degree murder in that

he, without lawful justification, “shot and killed

[the victim] with a gun knowing that such shooting

with a gun created a strong probability of death or

great bodily harm to [the victim]” in violation of

section 9-1(a)(2) of the Code (720 ILCS 5/9-

1(a)(2)(West 1998)). Defendant contends both

charges are void because they are duplicitous.

Duplicity occurs when two or more distinct

offenses are joined in the same count of an

indictment. Edwards, 337 Ill. App. 3d at 921 [788

N.E.2d at 43]. An indictment is not duplicitous if it

charges a [p. 19] single offense in more than one

way or pleads different acts contributing to the

ultimate charged offense. Edwards, 337 Ill. Ap.

[sic.] 3d at 921 [788 N.E.2d at 43]. A duplicitous

indictment does not set forth the nature and

elements of the charge with certainty, rendering

the complaint void. Edwards, 337 Ill. App. 3d at

921 [788 N.E.2d at 43].

Counts I and II of defendant’s indictment are

not duplicitous. They charge defendant with

distinct offenses: first degree murder under section

9-1(a)(1) of the Code and first degree murder

under section 9-1(a)(2) of the Code. There has

been no joining of offenses in separate charges.

The cases relied on by defendant are

distinguishable. See People v. Eagle Books, Inc.,

App. 55

151 Ill. 2d 235 [602 N.E.2d 798] (1992); People v.

Capitol News, Inc., 137 Ill. 2d 162 [560 N.E.2d

303] (1990); People v. Heard, 47 Ill. 2d 501 [266

N.E.2d 340] (1970). The supreme court in those

cases held an indictment that charges a defendant

in the disjunctive is void if it alleges disparate and

alternative acts, any one of which would constitute

the offense. Eagle Books, 151 Ill. 2d at 244-45

[602 N.E.2d at 801-02]; Capitol News, 137 Ill. 2d

at 174-75 [560 N.E.2d at 308-09]; Heard, 47 Ill. 2d

at 504 [266 N.E.2d at 342]. Counts I and II of

defendant’s indictment use the disjunctive to allege

defendant’s mental state. They do not allege

disparate and alternative acts. Use of the

disjunctive in these circumstances did not cause

uncertainty or conjecture as to the crime defendant

was charged with committing. People v. Viser, 62

Ill. 2d 568, 580 [343 N.E.2d 903, 909] (1975)

(indictment charging alternative mental [p. 20]

states for murder does not implicate duplicity

concerns).

Because we find counts I and II were

properly charged, we need not consider

defendant’s argument with respect to count

IiI-felony murder. See People v. Cardona, 158 IIl.

2d 403, 411 [643 N.E.2d 720, 723] (1994) (“[a]

general finding of guilty is presumed to be based

on any good count in the indictment to which the

proof is applicable”).

App. 56

Additionally, because we are reversing

defendant’s conviction and remanding his cause for

a new trial, we do not decide defendant’s

remaining contentions regarding the sufficiency

of the State’s eyewitness evidence or its alleged

failure to prove his guilt on a theory of

accountability. We remand because we find there

is sufficient evidence to support a guilty verdict.

CONCLUSION

For the above-stated reasons, we reverse

defendant’s conviction and remand the cause for a

new trial.

Reversed and remanded.

Wolfson, J., with Burke, J., concurring.

Cahill, P.J., dissenting. [p. 21]

JUSTICE CAHILL, dissenting:

I respectfully dissent. The appellate muddle

over I.P.I. 3.15 was resolved by our supreme court

in People v Herron, 215 Ill. 2d 167 [830 N.E.2d

467] (2005), as the majority correctly notes.

Giving the instruction in its old form has been held

to be plain error under Herron, reduced to

harmless error only if the evidence is not closely

balanced. The majority then finds the evidence

App. 57

clos \ balanced in this case because “the

testimony of a drug-intoxicated witness” was the

principal evidence introduced by the State. In fact,

the only evidence offered by the defendant was the

attempted impeachment of the credibility of that

witness. So it could be argued from this record

that the evidence is not closely balanced: the drug-

using intoxicated witness stuck to her story in the

face of withering cross-examination by brilliant

defense counsel under the glare of juror scrutiny.

The majority criticism of gang crimes

evidence is equally unpersuasive. The evidence

offered by the State was within the boundaries -

announced in People v Johnson, 208 Ill. 2d 53 [803

N.E.2d 405] (2003), and in keeping with the right

of the State to show motive for otherwise

inexplicable acts. The record reveals a senseless

gang rivalry, punctuated by ruthless responses to

perceived slights. Of course it is prejudicial. But it

is also probative and the jury had a right to hear

about this apparently senseless [p. 22]

assassination in context. To shield a jury from the

State’s theory of the case hardly creates an even

playing field for a criminal trial.

This defendant received a fair trial. I would

affirm.

App. 58

APPENDIX H

NOT RECOMMENDED FOR PUBLICATION

No. 92-1406

FILED

Jun 10 1993

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID A. BUNKER, ) 90-71098

) [Judge] Rosen

Petitioner-Appellant, ) 3-24-92

}

Vv. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

_ JOHN JABE, Warden; ) COURT FOR THE

and FRANK J. KELLEY, _) EASTERN DISTRICT OF

Attorney General, ) MICHIGAN

)

Respondents-Appellees. )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations. Please see Rule

24 before citing in a proceeding in a court in the Sixth Circuit. If cited, a

copy must be served on other parties and the Court. This notice is to be

prominently displayed if this decision is reproduced.

BEFORE: MARTIN and NORRIS, Circuit Judges;

COFFIN, Senior Circuit Judge.”

"The Honorable Frank M. Coffin, Senior Circuit Judge,

United States Court of Appeals for the First Circuit, sitting by

designation.

App. 59

- PER CURIAM. Petitioner, David A. Bunker,

in this action seeking a writ of habeas corpus,

challenges the constitutionality of his 1967 state

conviction for murder. In examining the

conviction of petitioner’s codefendant, Robert E.

Casper, upon his petition for a writ of habeas

corpus, this court in 1987 held that instructions

given to the jury in the joint trial of petitioner and

Casper unconstitutionally shifted the burden of

proof regarding intend to commit murder, in

violation of Sandstrom v. Montana, 442 U.S. [p. 2]

510 (1979). Casper v. Grant, No. 86-1639, 817

F.2d 756 (6th Cir. May 7, 1898) (text in Westlaw),

cert. denied, 485 U.S. 940 (1988). The court

granted the writ. Id. In 1989, a plurality of the

members of the United States Supreme Court in

Teague v. Lane, 489 U.S. 288 (1989), dramatically

revised the manner in which courts are to

determine whether a new rule of constitutional law

should be applied retroactively to convictions that

became final prior to the articulation of the new

rule.’ According to Teague, habeas corpus

petitioners no longer may claim the benefit of rules

announced after their direct appeals are exhausted,

unless retroactive application is warranted under

narrow exceptions set out in the opinion. Although

this court had consistently applied the rule of

Sandstrom retroactively to habeas petitioners prior

' A majority of the Court embraced the Teague

framework in Penry v. Lynaugh, 492 U.S. 302 (1989).

App_60 ©

to the decision in Teague, this court in 1991 relied

upon the Teague analysis to conclude that

Sandstrom no longer would enjoy retroactive

application. Cain v. Redman, 947 F.2d 817 (6th

Cir. 1991), cert. denied, 112 S. Ct. 1299 (1992).

Reviewing this case law, the district court

expressed dismay at the prospect of treating

Casper and Bunker differently, but concluded that

it was required to do so by our opinion in Cain.

_ We have before us the district court’s order

denying Bunker’s petition.

Notwithstanding the general applicability of

our ruling in Cain, this appeal presents us with the

idiosyncratic situation in which the timing of a case

announcing a /[p. 3] new rule of retroactivity

threatens to subject two codefendants in a case

arising from the same facts to different legal

standards.

Bunker and his codefendant Casper, were

convicted at the conclusion of the same trial, by

the samé jury. In Casper, we held that the jury

instruction given in the joint trial was

constitutionally infirm and that Casper was

therefore entitled to a writ of habeas corpus. Now,

under Teague and Cain, we are being asked to

declare that the same instruction is no longer infirm

as to petitioner.

App. 61

As the Ninth Circuit said in a case where a

codefendant had been subjected to an erroneous

speedy trial ruling while his codefendants had

received a favorable ruling on the same point, the

principle that like cases be treated alike is

“particularly strong ... when the two cases are not

merely factually alike or even factually identical, but

arise from the same facts.” Walter v. United States,

969 F.2d 814, 817 (9th Cir. 1992). See also United

States v. Anderson, 584 F.2d 849, 853 (6th Cir. 1978)

(“manifest injustice” to allow conviction of one

codefendant to stand while ordering new trial for

other codefendant based upon error in admitting

evidence).

This principle, that like cases be treated alike,

seems to us to fall within the spirit, if not the letter,

of the law of the case doctrine, one example of

which is the influence of a prior ruling “of the same

court ... acting within the framework of a single

case or closely related cases.” 18 Charles A. Wright

et al., Federal Practice and Procedure § 4478 (1981).

[p. 4]

We therefore feel constrained on this record

to hold that the jury instruction in petitioner’s case

be viewed as it was in codefendant Casper’s case.

Accordingly, because we conclude that the

error committed by the trial court was not harmless,

we reverse the judgment of the district court, and

App. 62

remand this cause to that court with instructions to

issue a writ of habeas corpus directing the state of

Michigan to discharge petitioner from custody unless

it elects to afford him a new trial within ninety days

of the issuance of the writ.