Opinion
2-20-0395
06-30-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN GARCIA, JR., Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County. No. 17-CF-1757 Honorable John A. Barsanti, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court. Justices Birkett and Kennedy concurred in the judgment.
ORDER
SCHOSTOK JUSTICE.
¶ 1 Held: Trial court did not err in concluding that independent source existed for witness's identification of defendant where witness had been exposed to suggestive identification procedures; trial court did not abuse its discretion in allowing in-court identification of defendant by witness who had not identified defendant before trial; defendant's conviction was supported by sufficient evidence; and trial court did not abuse its discretion in denying defendant's motion to sever count alleging unlawful possession of a firearm by a street gang member.
¶ 2 Following a jury trial in the circuit court of Kane County, defendant, Martin Garcia, Jr., was convicted of first-degree murder, unlawful possession of a firearm by a street-gang member, and armed violence. The jury further found that defendant personally discharged a firearm during the commission of the offense of first-degree murder. Defendant now appeals.
¶ 3 I. BACKGROUND
¶ 4 The present case arises out of the shooting death of Rodolfo Rocha on June 10, 2017. Rocha was with a group of people in front of a residence at 1142 Grove Street in Aurora. Two men approached and engaged the group in conversation. The two men then told the group "to throw down Ambro" (an act of gang affiliation), and the group denied being members of a gang. The men started shooting, striking and killing Rocha.
¶ 5 Defendant filed a pretrial motion to suppress the identification testimony of one witness, Filiberto Martinez. Specifically, defendant asked that any testimony by Martinez regarding "any out-of-court or in-court identification of" defendant be suppressed. A hearing was held on the motion.
¶ 6 Defendant first called Officer Ariana Stone of the Aurora Police Department. On June 10, 2017, Stone was a recruit. She and Officer Pacenti responded to the crime scene at about 12:30 a.m. on June 10, 2017. She spoke with Martinez in the driveway. Martinez described the shooting to Stone, and Stone took notes. Martinez stated that two individuals approached the group he was with. They displayed two guns, and one wearing a white T-shirt shot the victim. They fled in an unknown direction. Stone acknowledged that in her original report, she wrote that one of the offenders was wearing a white T-shirt and the other was wearing a black T-shirt. The man in the black T-shirt fired in a westerly direction down the street. Stone did not ask about-and Martinez did not offer-information regarding the height of the offenders. Martinez did not describe their age, whether they had facial hair, their complexion, what sort of pants they were wearing, or what sort of shoes they had on.
¶ 7 Stone further acknowledged that she filed a supplemental report on July 19, 2018 (about a week before the hearing on defendant's motion). She denied that Detective Trujillo told her to change her original report. She explained that Trujillo did point out to her that there was an error in her original report concerning the description of one of the offenders. Specifically, she explained that she described an individual as wearing a black T-shirt in her original report when she erroneously relied upon a note card from a different incident that she had responded to prior to the crime at issue here. Stone had no independent recollection of her conversation with Martinez. Her note cards were turned over to investigators.
¶ 8 On cross-examination, Stone testified that the earlier crime had nothing to do with this case. She agreed that she could have made a mistake in her initial report.
¶ 9 Defendant next called Officer Guillermo Trujillo of the Aurora Police Department. Trujillo was lead investigator in this case. In that role, he reviewed the reports of other officers involved in the case. His investigation led him to suspect two individuals, Anthony Medina and defendant. He was aware that Filiberto Martinez witnessed the shooting and was interviewed by Officer Stone. He was further aware that Stone authored a report stating that one of the offenders was wearing a white T-shirt and the other was wearing a black T-shirt. He spoke with Stone on June 18, 2018 (about a year after the offense) regarding her description of the offenders. He explained that there was a question regarding her field notes, which involved multiple cases. Stone's note card contained "some names that didn't make sense." He added, "It looked like she used the same card for two incidents." On June 18, 2018, he asked Stone whether she needed to clarify her report, as it appeared she included information from a different crime in the report about the offenses at issue here. He noted that there was "no other description like it * * * regarding a black shirt." In fact, that description matched her notes from another incident.
¶ 10 Trujillo testified that, by 2 a.m. on the day of the shooting, Medina had been detained. Showups were conducted with witnesses to see if he could be identified. Officer Fukutake conducted a showup of Medina with Martinez. Martinez did not make a positive identification of Medina. Victor Avitia did, however, identify Medina. Medina was charged in the next "day or two." Avitia is Martinez's brother, and both are cousins of the victim.
¶ 11 Trujillo interviewed Martinez at about 4:15 a.m. on June 10, 2017 (the day of the shooting, about four hours after the incident). Martinez described the first shooter as having black hair, a mustache, and a "darker complexion" and the second shooter as possibly wearing black pants. Martinez described the gun defendant was using as a revolver. During this statement, Martinez did not describe the length of defendant's hair, what he was wearing, or any other distinguishing characteristics besides a mustache. Martinez said that things had happened very fast. During the incident, Martinez was backing up with his hands in the air. Martinez acknowledged having smoked marijuana prior to the shooting. Officer Moore showed Martinez a computer-generated photographic lineup that contained a photograph of defendant at about 4:46 p.m.; Trujillo did not know the results of the lineup. He acknowledged that he did not arrest defendant at that time.
¶ 12 On July 11, 2017, Trujillo directed Detective Rees to go to a liquor store and review surveillance tape. They showed this tape to Martinez on August 15, 2017. However, defendant was not placed in a physical, in-person lineup. Trujillo acknowledged that lineups were not supposed to include two suspects at the same time; nevertheless, the tape obtained from the liquor store showed Medina and defendant together.
¶ 13 On cross-examination, Trujillo testified that the description of one of the offenders wearing a black shirt appeared nowhere outside of Stone's report. He never told Stone that her report was wrong. During the showup conducted by Fukutake, Fukutake told Martinez to identify someone only if he were 100% certain. According to Trujillo, this was not the standard practice. Martinez did not identify anyone in this showup. They could not perform a showup of defendant on the day of the shooting, as defendant was in the hospital receiving treatment. In a photographic lineup conducted that day, Martinez was the only witness who selected a photograph of defendant, claiming he looked similar to one of the shooters, albeit with less facial hair. The photograph Martinez selected was that of defendant.
¶ 14 Trujillo testified that in the video recording recovered from the liquor store, both defendant and Medina were wearing white shirts. Medina is wearing "light blue jeans" and defendant is wearing "dark pants or dark jeans."
¶ 15 Defendant next called David Fukutake, a patrolman with the Aurora Police Department. On June 10, 2017, he was working alone and was dispatched to 1142 Grove Street in Aurora at about 12:37 a.m. At about 2 a.m., Fukutake was directed to participate in a showup involving Medina and Martinez. He met with Martinez and advised him that they had located a subject matching the description of one of the offenders. He told Martinez that the individual may or may not be an offender and that Martinez should "only identify him if he was 100% positive." Fukutake agreed that he did not give Martinez all of the instructions that would normally be given prior to a formal lineup. They drove to where other officers were holding Medina. Fukutake shined a spotlight on Medina. This provided a clear view of Medina, including being able to observe his age, height, weight, face, and clothing. The squad car had the ability to record both Medina and Martinez; however, no recording was made (Fukutake thought he had activated the recording system, but no recording was located). Martinez did not positively identify Medina as one of the offenders at this time. He did not recall either of the offenders wearing the sort of shirt that Medina was wearing.
¶ 16 On cross-examination, Fukutake explained that he did not follow the protocols for a formal lineup because he was not conducting one. He acknowledged that the protocol for a showup did not require that he tell Martinez to only identify the offender if he was 100% positive that he was one of the shooters.
¶ 17 Defendant next called Officer Darrell Moore of the Aurora Police Department. He began his shift at 8:30 a.m. on the morning after the shooting. He administered photographic lineups for four witnesses that day. He did not assemble the lineups. The lineup is administered via a computer. The computer program provides certain instructions to the witness, including that the witness should not feel compelled to make an identification and that it is important to exclude innocent people as well as to identify the offender. Moore agreed that the background of the photograph of defendant used in the lineup had a light-blue background while none of the others did. Also, all the photographs except defendant's had a white margin on the right side. Martinez stated that the photograph of defendant "look[ed] similar" to one of the shooters, though he thought the facial hair appeared different. Martinez knew one of the other people used in the lineup, so he knew that photograph was not of the offender.
¶ 18 On cross-examination, Moore testified that he showed the lineup to four witnesses that day. The other three were unable to identify anyone. The system shows witnesses the pictures in the lineup individually. The white margin apparent in the photographs-other than defendant's- would not have been visible when the photographs were displayed in this manner. Martinez selected defendant's photograph on the computer system and verbally stated that it appeared to be one of the shooters.
¶ 19 On redirect-examination, Moore acknowledged that Martinez never used the word "positive" regarding his identification of defendant. In his report, Moore noted that Martinez stated that "this guy looks similar." Moore explained that Martinez "was having problems with the facial hair being different."
¶ 20 Defendant then called Detective Crista Rees of the Aurora Police Department. At about 4:15 a.m. on June 10, 2017, she and Trujillo interviewed Martinez. In July 2017, based on information the police had received in an anonymous letter, she was sent to Randall Liquors to view a surveillance video recording. Randall Liquors is a couple blocks from the crime scene. She was accompanied by Detective Nick Wright. They viewed the video footage beginning at 6 p.m. on the day of the shooting through closing time at 12:38 a.m. At about 10:56 p.m. on June 9, 2017 (Rees explained the time stamp on the video was off by about 17 minutes, but she could not recall if it was fast or slow), she observed defendant, Medina, and a third individual named Isaac Echols enter the store (Echols was wearing a red T-shirt and red shorts). Rees downloaded two different camera angles from the video system and brought them to the police station. Rees acknowledged that the recording was "grainy" but stated that it showed facial features with sufficient clarity to see them.
¶ 21 On cross-examination, Rees testified that one could make out someone's hair color on the video recording. It was possible to make out facial characteristics and clothing as well.
¶ 22 Defendant then called Detective Matthew Hix of the Aurora Police Department. On August 15, 2017, he showed the surveillance videos from the liquor store to Martinez. He gave Martinez no instructions regarding viewing the video. There were two video clips. While watching the first, Martinez identified Medina by name, but he recognized nobody else. Martinez then watched the second clip. Martinez said something to the effect of "that looks like the guy." He did not know this individual's name. Hix asked Martinez how sure he was, and Martinez stated that he was "pretty sure." Hix later learned that the second person Martinez identified was defendant. Martinez further explained that he knew Medina's name because Medina had been arrested.
¶ 23 On cross-examination, Hix testified that there were multiple people on the video recording in addition to defendant and Medina. Hix did not know and did not tell Martinez at which liquor store the recording was taken.
¶ 24 Finally, defendant called Martinez. Martinez testified that the victim, Rodolfo Rocha, was his cousin. Victor Avitia is Martinez's brother. On the night of June 9, 2017, he attended a party at 1142 Grove Street in Aurora. Martinez acknowledged that he smoked cannabis prior to the shooting. At about 12:30 a.m., Martinez was in the front yard. When asked how dark it was, Martinez replied, "I could see. It wasn't like you're in the woods, or anything." He added, "It was visible. You could see." There was no streetlight above the house, but there were streetlights at the corner. He did not see where the shooters came from. Martinez agreed that the shooting happened "very fast." When the shooters displayed their guns, Martinez moved back, though not immediately. Prior to the crime, Martinez knew neither of the shooters. He agreed that this was a "startling and frightening event." Shortly after the shooting, Martinez learned the Medina had been taken into custody. Later, he saw Medina's photograph in the newspaper. Prior to viewing the surveillance video from the liquor store, Trujillo told him that there might be someone he knew on the tape or there might not be. Martinez acknowledged that prior to viewing the surveillance tape on August 15, he had seen defendant in the photographic lineup.
¶ 25 Martinez testified that he was aware that Avitia had identified Medina as one of the assailants. He and Avitia discussed the crime. Between the shooting and August 15, Martinez had seen multiple photographs of Medina. Martinez could tell from the date stamp on the video that it was taken shortly before the shooting. He recognized the liquor store and knew it was near where the shooting occurred.
¶ 26 When the offenders initially approached, they came within five or six feet of Martinez. He estimated the entire incident took more than 30 seconds but less than a minute. He agreed that "one of the things [he] was focused on" was the gun that one of the shooters had. After the shooting and after he spoke with police, Martinez looked up the sort of gun he had seen. He disagreed that "a lot of [his] attention was" focused on the gun. His attention was on trying to talk the offenders out of shooting.
¶ 27 On cross-examination, Martinez stated that he had not smoked "a lot" of cannabis prior to the shooting. It did not affect his ability to see or think clearly. He did not feel like he was under the influence of marijuana.
¶ 28 Martinez testified that two individuals approached the group he was with at about 12:30 a.m. on June 10, 2017. They twice asked for a lighter. They also said "throw down" Ambro, which was a reference to a gang. They repeated this two or three times. Martinez and his family stated that they were not involved in gang activity. The individuals then produced their guns. Martinez had a clear view of them, and it was not dark where the individuals were standing. The corner was "pretty lit up" by streetlights, from which they "were just like a house away." Also, the door to the house was open, and light was coming from there. He was able to see that the individuals were Hispanic men with long hair. Martinez was able to observe their clothing. He also saw a white T-shirt and facial hair. One member of the group Martinez was with ran down the street, and one of the offenders fired in his direction. The other then started shooting, striking the victim. Martinez was still about five or six feet away. He then dove into the house.
¶ 29 Martinez testified that he accompanied an officer to view an individual to see if Martinez could identify him about an hour and half after the shooting. The officer told Martinez not to make an identification if he was not 100% certain. He was not certain, Martinez explained, because the individual in the showup was wearing a white shirt with buttons and Martinez did not recall the shooter's shirt having buttons. Thus, he did not feel comfortable making an identification.
¶ 30 Martinez testified that he met with Officer Moore later that day. Martinez viewed a lineup that was comprised of six photographs. The lineup was presented on a computer. Before viewing it, Martinez reviewed a set of admonishments, which he read fully. He selected the third photograph. He acknowledged that there were other people in the lineup that he recognized and therefore could eliminate as an offender. Martinez stated that the facial hair of the individual in the photograph he selected appeared "slightly different" than it appeared at the time of the shooting. Martinez was "confident that that was the individual who shot" the victim, with the caveat that his "facial hair was lighter."
¶ 31 Martinez had no further contact with the Aurora police until August 15, 2017, when he viewed the surveillance video from the liquor store. The police simply told him that they wanted him to watch a video and see if he recognized anyone. Prior to this time, he had seen pictures of Medina and participated in the lineup administered by Moore in which a photograph of defendant was included.
¶ 32 On redirect-examination, Martinez acknowledged that he met with the State's Attorney's Office two or three times prior to testifying and reviewed a transcript of his testimony before the grand jury. He did not identify anyone during the showup with Fukutake because he had been instructed not to unless he was 100 percent certain.
¶ 33 Defendant rested after the conclusion of Martinez's testimony. The State moved for a directed finding, which was denied. The trial court first observed that Martinez did not make a positive identification in the initial showup of Medina (though the trial court recognized that Martinez had been told not to make an identification unless he was 100% certain). Regarding the photographic lineup, the trial court stated that Martinez "clearly had selected [defendant] in some fashion." He did not, however, make a "positive ID." The trial court added that if Martinez had made a positive identification, there was "no explanation [as to] why [defendant] wasn't charged." The trial court found that "[t]here clearly wasn't a positive identification" but there "clearly was a selection of the defendant out of the array."
¶ 34 The trial court then turned to the surveillance video. It first found that prior to the time Martinez viewed it, he had made a "positive selection" and given a general physical description of defendant. The trial court observed, "The defendant does fit the physical description. It noted that when Martinez identified defendant in the liquor store video, defendant was with Medina. The trial court explained, "There is no question in my mind that he obviously sees Medina" and that, by this time, "Medina [had] been charged." The trial court also observed that the time stamp on the recording indicated to Martinez that it was taken shortly before the shooting and that Martinez recognized the liquor store and knew it was "very close to the murder scene." The trial court ruled, "I find that to be a suggestive lineup procedure." Accordingly, the trial court held that the burden shifted to the State to show an independent basis for Martinez's identification of defendant.
¶ 35 The State's first witness was Martinez. Martinez testified that he viewed a photographic lineup with Moore at about 4:45 a.m. on the morning following the shooting. He reviewed a recording of himself viewing the lineup prior to the previous time he came to court. He also reviewed a transcript of statements he made at that time. Martinez explained that in his statement, he indicated that he already knew and recognized only one of the six people in the lineup.
¶ 36 On cross-examination, Martinez agreed that he identified defendant's photograph in the lineup as looking similar to the individual that had stood in the street during the shooting rather than the person who had approached closest to the group Martinez was with. He clarified on redirect-examination that, when he selected defendant's photograph in the lineup administered by Moore, he made an error regarding where defendant was standing during the shooting.
¶ 37 The State then called Detective Rees. She testified that she created the lineup that Martinez viewed during the day following the shooting. Prior to creating the lineup, she, along with Trujillo, spoke to Martinez and obtained a description of the offenders, which was "male Hispanic with long black hair and the goatee." She also learned that an individual named Martin Garcia (defendant) had "show[n] up at the Copley Hospital with gunshot wounds." Rees determined that defendant matched Martinez's description. She located a photograph of defendant on the Illinois Department of Corrections website and included it in the lineup. The computer system also generated a number of individuals from police records, from which Rees created the lineup. Rees did not administer the lineup.
¶ 38 On cross-examination, Rees acknowledged that the totality of the description Martinez gave of the shooter was "[d]ark hair, medium complexion, and a mustache." Martinez could not say whether "it was a heavy or dark mustache," because, he said, "it all happened so fast."
¶ 39 The State then rested, and defendant called Trujillo. Trujillo testified that there was no streetlight in front of the residence where the shooting happened, but there was a small light fixture at the front door (it was not illuminated in a picture of the home taken at the time evidence technicians were working). Moreover, there is one streetlight at the south-west corner of the intersection to the east. The curtains on the windows of the residence were drawn (Trujillo could not say whether they were drawn at the time of the crime). Following the shooting, evidence technicians illuminated the area with artificial lighting while they worked. Further, while the main front door was open, the screen door was closed, and the bottom half of it was opaque. On crossexamination, Trujillo acknowledged that he was not present at the time of the shooting and had no idea what the lighting conditions were at that time.
¶ 40 The trial court found that the State had established an independent basis for Martinez's identification. It first reiterated that it had found that the lineup presented to Martinez was impermissibly suggestive. It then noted that while Martinez had selected defendant in the lineup, this was not a positive identification, as Martinez had "qualified the identification at the time." Martinez's first positive identification of defendant was when he viewed the video from the liquor store; however, that identification occurred while defendant was with Medina and shortly before and near the location where the shooting took place. The trial court ruled that this was impermissibly suggestive.
¶ 41 The trial court then turned to the question of whether Martinez had an independent basis free from the taint of these suggestive identifications that would allow him to make an identification of defendant. The trial court made, inter alia, the following findings of fact: (1) during the shooting, Martinez was five or six feet from the offenders; (2) he saw a gun and noted its shape; (3) he focused his attention on the two shooters and the victim; (4) "[w]hen the guns came out, he tried to talk the shooters out of it"; (5) before the shooting, the two offenders approached, with their guns hidden, and twice asked for a lighter; (6) "[t]here were some lights" and it was "not completely dark"; (7) Martinez could tell the two offenders were Hispanic; (8) he could also tell they had long hair; (9) after the shooters asked for a lighter, they said, "Throw down Ambro"; (10) the people present stated that they were not gang members; and (11) both shooters again stated, "Throw down Ambro." The trial court then reiterated that the original identification of defendant by Martinez was impermissibly suggestive. It then found that Martinez had "a clear opportunity to observe [defendant] at the time of the offense." It noted that Martinez gave a "consistent and correct general physical description of [defendant]." Moreover, he "made an unprompted selection of [defendant] from a photographic lineup untainted by any previous identification procedures." Accordingly, the trial court ruled that Martinez would be permitted to make an in-court identification of defendant. Additionally, the State would be allowed to introduce the "result of the photographic lineup assuming the proper foundation [was] laid." Further, the State could present evidence of the surveillance video identification unless defendant objected, and, if defendant wished, he could present the surveillance video evidence. Finally, the court expressly found, "[T]he [S]tate has shown by clear and convincing evidence that F. Martinez['s] identification of the Defendant has [an] independent source free from the taint of the suggestive identification procedure."
¶ 42 At trial, the State's first witness was Diana Salgado. She testified that she lived at 1142 Grove Street in Aurora with her boyfriend, Ismael Lopez. They rented the residence, having moved in during the March prior to the shooting.
¶ 43 On June 9, 2017, Lopez had some friends over: Rocha (the victim), Martinez, Louis Gamboa, Avitia, and Jose Cervantes. Salgado testified that no one present was a gang member. Salgado was not drinking alcohol that evening because she was pregnant. Everyone else was drinking beer, but no one was loud or creating a disturbance. Shortly after midnight, "two guys walked up." One asked for a lighter, which Salgado found unusual. She did not know them. One of the individuals "backed away a little and reached in towards his waistband." That individual then asked "what do we be about." Salgado explained to the jury that this suspect was asking if the group she was with were "gang bangers." They replied that they were not. Salgado "got scared and walked into the house." She stated that the individual who was talking was the one in her driveway. Salgado heard them say "Drop Ambro." Her group replied that they were not affiliated with a gang. Salgado testified that the two men had "long hair slicked back" and were about five-feet, eight-inches tall. They were Hispanic. The two men were wearing white shirts, and Salgado recalled "some gold" on a shirt. When asked whether they had facial hair, Salgado replied, "I think I seen on one of them." She saw one of the handguns the men had and described it as "black." They had never "had any problems with" them before.
¶ 44 Salgado stated that she heard five or six gunshots. When she spoke with Trujillo during the early morning following the shooting, she said the gun she saw was "more like" a semiautomatic. She added that the offender had the gun in his right hand, though she did not specify to which individual she was referring.
¶ 45 About a minute after she got into the house, Martinez entered. Cervantes ran down the street, and Gamboa jumped in a window. One of the offenders was shooting toward Cervantes. Avitia did not enter the house. Salgado called 911. Salgado testified that she recalled one of the offenders was wearing a white shirt and white pants and the other was wearing a white shirt, but she could not recall his pants. The latter individual had an emblem on his shirt. After she made the 911 call, she went back outside and saw the victim on the ground. She did not believe she could identify either individual.
¶ 46 On cross-examination, she testified that people arrived at her house at about 11 p.m. on the night of the shooting. They were drinking. Martinez and Avitia are brothers. Martinez smoked cannabis in the front yard. There is a streetlight at the corner. It was "kind of" dark in her yard. She explained, "The house is right by a corner, so there is a streetlight on that corner, so there's a little bit of light." Salgado agreed that "things happened very quickly" and that "[t]his was a startling event." After the two individuals approached, Salgado was outside for about a minute before she went into her house. The entire event lasted "[a] little longer" than "a minute or so." At about 1 a.m., shortly after the shooting, Salgado participated in a showup of Medina. She could not identify him. She could not identify anyone in a lineup conducted the following afternoon. Finally, Salgado responded affirmatively when asked, "[N]othing that occurred that night led you to believe that either of the two people who were in front of your house shooting was actually shot themselves; correct?"
¶ 47 On redirect-examination, Salgado stated that she was not watching a clock during the incident. Lights were on inside her house, and they were "right next to the corner of the street" where there was a streetlight. During the showup of Medina, she did not state that he was not one of the shooters. Similarly, she did not rule out anyone as a shooter when she viewed the lineup.
¶ 48 The State next called Alexander Reyes. Reyes was home watching television when he heard eight gunshots at some point after midnight. He looked out the window and observed two men who were in their teens or early twenties "going southbound on Loucks" (Loucks Street is the street that intersects with Grove Street one house east of Salgado's residence). They were wearing "lighter clothing, like white shirts and darker-colored pants." The men were running. One "was like laughing toward-or, smiling towards the other." Reyes did not get a sufficient look at these individuals to be able to identify them. Reyes went outside and gave a statement to the police.
¶ 49 On cross-examination, Reyes explained that he lived on Loucks Street, just south of Grove Street. He did not call 911 when he heard gunshots. Gunshots were not unusual in his neighborhood. The men ran by about "[a] minute or two" after he heard the gunshots. They were of average height, and they "were running just fine." It did not appear as if either "had been shot through the stomach."
¶ 50 Eduardo Ibarra next testified for the State. He is a firefighter and paramedic for the City of Aurora. At about 12:38 a.m. on June 10, 2017, Ibarra was called to the 1100 block of Grove Street in response to a gunshot victim who was unconscious and not breathing. Ibarra was the lead paramedic; two additional paramedics and two emergency medical technicians were with him. When they arrived, they examined the victim. They noted no pulse. The victim had suffered "multiple gunshot wounds to his abdomen and chest." Ibarra observed bright red blood, indicating an artery had been hit. There was a gunshot wound "directly in the heart" and "a gunshot to the head." This rendered treatment "futile." They placed the victim on an EKG monitor and noted "no electrical activity in the heart." They reported this to their "resource hospital," which gave them permission to "terminate resuscitative efforts." They then left the scene.
¶ 51 The State next presented a stipulation, pursuant to which a video surveillance tape from Rush Copley Hospital was played for the jury.
¶ 52 The State's next witness was Alan Bloom, a general surgeon at Rush Copley Hospital. On June 10, 2017, Bloom was called to the emergency room to treat defendant, who had two gunshot wounds, one to the right side and one to the left side of his abdomen. Blood tests were taken. Defendant had a blood-alcohol content of .187. An X ray showed no bullets or fragments in defendant's body. A CAT scan indicated that a bullet transversed defendant's body, and that one wound was an entrance wound and the other an exit wound. The abdominal cavity had not been penetrated. As such, Bloom testified, it was not surprising that defendant was able to walk into the hospital. Defendant did not tell Bloom anything regarding how he got shot. Defendant's blood count was normal. Bloom explained that "if you're bleeding, your blood count goes down."
¶ 53 Victor Avitia next testified for the State. The victim was his cousin, and Martinez is his brother. He had known Salgado for 20 years. On June 9, 2017, they were at Salgado's house, "just hanging out." During the shooting, one of the offenders stood closer to Avitia's group and the other stood further down the driveway.
¶ 54 On the night of the incident, two individuals approached and asked for a lighter. Nobody had one. The individuals stood there and Avitia was able to observe and speak with them. The nearer shooter pulled a revolver and pointed it at the victim's head, telling "him to drop the Ambrose." Avitia started moving back, as there were now two guns displayed (each shooter had one). Neither he nor the victim nor anyone else in his group were gang members. The victim stated, "I ain't dropping shit." The offenders started shooting.
¶ 55 The nearest shooter was wearing a white shirt and shorts (Avitia could not recall the color of the shorts). He had long hair, "coming to his shoulders," and a goatee. The other shooter wore a white shirt and white jeans. He also had long hair. Both shooters were Hispanic. The nearer shooter was shorter. Avitia later came to learn that the shooter that remained farther away was Medina. Avitia estimated he heard 9 or 10 shots. When the offenders asked for a lighter, Avitia was concerned and watched them to see what they were going to do. Lights were on in the house, and there was a streetlight at the corner.
¶ 56 At about 2:30 a.m., Avitia took part in a showup, and he identified Medina as one of the shooters. He viewed a lineup the next afternoon but could not identify anyone.
¶ 57 Avitia ran when the shooting began, but he "was looking back at the same time." He saw the shooters run toward Loucks Street. Avitia was asked whether he recognized defendant. Defense counsel objected, stating that there had never been anything disclosed that there would be an identification made by Avitia. The State responded that it had nothing further to tender. The trial court overruled the objection. Avitia then made an in-court identification of defendant. Avitia testified that it was defendant that shot the victim.
¶ 58 On cross-examination, Avitia acknowledged that he had never identified defendant prior to doing so in court. On June 9, 2017, he and the victim started drinking at about 6 or 7 p.m. They continued to drink when they got to Salgado's house. Avitia acknowledged that he initially reported that the person that shot the victim was 5'2" or 5'3" and wore jeans shorts and a black baseball cap. He reported seeing a white Tahoe in the middle of an intersection and told the police that the shooters had gotten into it (he later acknowledged on cross-examination that this was incorrect). When Avitia viewed the lineup on the afternoon following the shooting, he did not identify defendant. He did, however, tell the police that defendant's photograph "looks kinda like" the shooter. Avitia acknowledged that the shooting affected his family and that he wanted to see someone pay for it. He agreed that his attention was drawn to the guns during the shooting and that it was "difficult to look at facial features and things."
¶ 59 At about 11 or 11:30 p.m., the victim, Avitia, and Martinez went to the liquor store to get more alcohol. Prior to that point, Avitia testified, the group had consumed "a 12-pack," although he acknowledged that it could have been more. He and Martinez spoke about the shooting. They did not speak about their testimony. Avitia stated that neither of the offenders was shot during the incident.
¶ 60 On redirect-examination, Avitia explained that he did not actually see the shooters get into a white Tahoe, but he heard the doors open and close. Avitia stated that he was not intoxicated during the incident. Prior to the time at which the shooters drew their guns, Avitia was speaking with them and looking at them. He agreed that he did not see the shooters after the shooting stopped and could not tell if one of them had been shot.
¶ 61 The State's next witness was Aleeya Alvarez. She stated that Isaac Echols is her brother. In June 2017, she was dating defendant, and she still was dating him at the time of the trial. She stated that she did not know Medina. On the night of the shooting, she heard defendant banging on her door and saw him near her garage. She then "rushed him to the hospital." Her brother's girlfriend, Junie, was also present and accompanied them to the hospital. They went to the emergency room. Defendant was able to walk in. He was bleeding. Defendant did not say where he had been shot, and Alvarez did not ask him what had happened. She stated that the trip to the hospital took two or three minutes. Alvarez identified her brother on the liquor store surveillance video. When defendant arrived at her house on the night of the shooting, he was alone. She denied ever having talked to the police about the events that took place that night.
¶ 62 Martinez was the next witness called by the State. On the night of June 9, 2017, he was at Salgado's house. Salgado is his friend. He was hanging out with friends and family-Gamboa, Cervantes, Avitia, and Rocha (the victim). Martinez arrived at 11 or 11:30 p.m. Others were drinking, but he was not. He had "smoked a little bit" of cannabis. He felt "high." At one point, some of them went to the liquor store and returned. Everyone was in the front yard. Two men showed up and asked for a lighter. Nobody had one. The men asked "what do we be about." Martinez's group replied that they were not gang members. Martinez understood them to be asking if they were members of a rival gang. The men then produced their guns. One of them was in front of the other. The men stated "throw down the Ambro." Martinez and the victim put their hands up and stated that they were not gang members and that they were "not throwing anything down." One of the men backed into the street. Cervantes ran down the street. The men started shooting, one at Cervantes and the other at the victim. After the victim got shot, Martinez ran into the house.
¶ 63 Martinez stated that he would recognize the man who shot the victim. Martinez testified that he took part in a photographic lineup with Officer Moore. He stated that he picked someone out of that lineup and that person was in the courtroom. Martinez acknowledged that he initially told Moore that defendant was the person that remained in the street (the person who shot at Cervantes) and that this was incorrect. Defendant was the person that was closest to the victim. At the time he viewed the lineup, Martinez had only slept a "couple of hours." He identified still images from the liquor store video where he identified defendant and Medina. Martinez then made an in-court identification of defendant as the person who shot the victim.
¶ 64 Martinez testified that he saw defendant with a "shadow of a gun that seemed like a revolver." After defendant shot the victim, "[e]veryone ran their own way." He estimated the entire confrontation lasted 30 seconds to a minute. When asked about the lighting, Martinez replied, "You could see everything. It wasn't dark 'cause there was street lights and stuff." When the two men first walked up, Martinez was focused upon them. No one at Salgado's house was a gang member or had a gun. No one fired a gun at the two men.
¶ 65 When the police arrived, Martinez first spoke to a female officer. He did not tell her that one of the offenders was wearing a black T-shirt. Rather, he stated that the two shooters were wearing white shirts.
¶ 66 On cross-examination, Martinez testified that he and Avitia live together and they were living together in 2017. They discussed the case on occasion, particularly how they were nervous about testifying. He told Avitia that when he testified "a year ago" (during the suppression hearing, presumably), defendant was sitting at a table with his attorney. He and Avitia discussed the case, but "[n]ot a lot." They rode together but did not discuss their testimony on the way to trial. Martinez agreed that he was not able to identify Medina in a showup. However, Avitia told Martinez that he had identified Medina in a showup. Martinez agreed that he told the police that he heard two gunshots.
¶ 67 Regarding the lineup administered by Moore, Martinez told Moore that defendant's photograph looked similar to the person who shot the victim. Martinez acknowledged that he knew one other person in the lineup and was thus able to eliminate him as an offender. On August 15, 2017, the police asked Martinez to come in and look at the liquor store surveillance video. Martinez acknowledged that prior to viewing this recording, he had seen Medina on Facebook and in the newspaper. He knew Medina had been charged with the murder of the victim. He further acknowledged that he had not identified Medina in a showup during the morning following the shooting. He explained that the reason he did not identify Medina in the showup was that he was unsure about the shirt he was wearing. When he viewed the surveillance video, he first saw Medina. Then, upon observing defendant, he said "that looks like the guy who shot my cousin." When asked by Moore how sure he was, Martinez answered, "[P]retty sure."
¶ 68 On cross-examination, Martinez testified that no one from the State told him how to testify. Martinez stated his attention was initially focused on defendant prior to the shooting because defendant "was the main guy talking." There was sufficient light to see defendant.
¶ 69 The State next called Ellen Chatman of the Illinois State Police Forensic Science Center. She is a forensic scientist working in the trace evidence section. The trial court recognized her as an expert in the analysis and identification of gunshot residue. She examined a gunshot residue collection kit administered to the victim. His right hand tested positive, and his left hand was negative. Based on this, Chatman opined that the victim had "either discharged a firearm, contacted a gunshot-residue-related item, or was in the environment of the discharged firearm." She also analyzed samples taken from each of Medina's hands; both were negative. Thus, she opined that he "may not have discharged a firearm" or the that "particles were not deposited" or had been "removed by activity or "not detected by our procedures." She also examined the shirt and jeans recovered from Medina, which both tested positive for gunshot residue.
¶ 70 On cross-examination, Chatman testified that it was not necessary to discharge a gun to test positive for gunshot residue. She explained that when a gun is fired, "particles come out the back of the gun, around the gun, and in front of the gun." She added, "[I]t's possible to get GSR quite a long way away if you're in the path of the bullet." A gunshot residue test cannot determine whether someone has actually fired a gun. On redirect-examination, Chatman stated that handwashing was "very effective" at removing gunshot residue particles. They can be wiped off. Generally, gunshot residue will "fall off on its own" after about six hours.
¶ 71 The State's next witness was Gamboa. Gamboa was at Salgado's house on the night of the shooting. A group of people were outside listening to music and drinking. Two men approached and started shooting. Gamboa did not "get a good look at them" because "it was dark" and because "we had been drinking." He "saw guns" and "ran away." He later clarified that he only saw one pistol. Before the guns were displayed, the men asked for a lighter and said "something about a gang slogan." Gamboa had already fled by the time the shooting actually started. He ran to the back of the house and entered through a window.
¶ 72 Gamboa testified that the two men that approached were Hispanic and were wearing white shirts. He stated, "They had kinda long hair." Gamboa is not a gang member. He estimated that he heard five to seven gunshots.
¶ 73 On cross-examination, Gamboa testified that he did not remember if anyone was smoking marijuana in Salgado's front yard. The yard was dark, and there were no yard lights. Cervantes came by and remained on the sidewalk, closer to the two shooters. During the early morning following the shooting, Gamboa was unable to identify anyone in a showup. He also could not identify anyone in a photographic lineup the next day. He saw nothing to indicate that either of the offenders had been shot during the commission of the offense.
¶ 74 Graciano Flores then testified for the State. Flores stated that he is a patrolman with the Aurora Police Department. On June 10, 2017, he was assigned to guard a subject (defendant) at Rush Copley Hospital in the intensive care unit. Defendant was sleeping when Flores arrived. He awoke at one point and stated that he did not know how he got shot. Defendant added that he was out with friends and "got really, really drunk." He said that he did not recall anything else. On cross-examination, Flores testified that he arrived at about 2:40 p.m. He was instructed to not allow defendant to have any visitors.
¶ 75 The State next called Maria Castro. The victim was her husband. She identified damage to the victim's vehicle that had occurred during the shooting. The victim did not own a gun and was not in a gang. Avitia was not in a gang either.
¶ 76 Scott Rochowicz, a forensic scientist employed by the Illinois State Police, testified next. The trial court recognized him as an expert in the field of trace chemistry. Rochowicz examined a gunshot residue kit collected from defendant's right hand. He opined that defendant "may have either discharged a firearm, was in close proximity of a firearm that was discharged or contacted a PGSR related item." On cross-examination, he acknowledged that a person who received a gunshot wound could test positive in the same way as an individual that had been in the area of a discharge.
¶ 77 The State's next witness was Christopher Coronado, a detective with the Aurora Police Department. He is tasked with "handl[ing] mostly cell phone forensics." He is trained in the use of Cellbrite, which is set of tools that allows the user to extract data from a cell phone. Coronado was asked to examine two phones in connection with this case-one smartphone and one flip phone. These phones belonged to Medina.
¶ 78 Officer Chris Arbet of the Aurora Police Department next testified for the State. He was a patrol officer in June 2017 and an assistant evidence technician. He collected gunshot residue samples from defendant's hands at about 1:30 a.m. on June 10, 2017. He also performed a gunshot residue test on Medina in a booking cell at the Aurora Police Department.
¶ 79 The State next called Arturo Delgado, a cashier at Randall Liquors. He testified that he installed the surveillance equipment at the liquor store where the recording recovered in relation to this case was taken. The system was functioning properly in June 2017. On cross-examination, he testified that sometimes they do not correct the clock on the recorder when it is incorrect, such as after the spring or fall time change.
¶ 80 The State's next witness was Crista Rees, a detective with the Aurora Police Department. On January 7, 2017, she recovered the surveillance video from Randall Liquors.
¶ 81 The next witness for the State was Nicole Fundell. She is a forensic scientist specializing in firearm examination and identification. The trial court recognized her as an expert on these issues. She examined 12 spent cartridges recovered at the crime scene and determined that they were all from the same 9mm Luger pistol. She also examined a number of recovered bullets. Some were not suitable for comparison, but the remainder were fired from the same gun. Two additional bullets were fired from a different firearm. Fundell also examined a firearm recovered by the Chicago police and determined it had fired the first set of identifiable bullets.
¶ 82 On cross-examination, Fundell agreed that analyzing firearms is a matter of visual examination. According to Fundell, the "standard is you make the call based on what you see and kind of your opinion and your experience."
¶ 83 The State's next witness was Joseph Raschke. Raschke is a special agent with the FBI. He is assigned to the "cellular analysis survey team." Over defendant's objection, the trial court recognized Raschke as an expert in the field of "cell site analysis." Raschke analyzed data concerning two cellular telephones associated with Medina. Raschke identified a number of maps that showed Medina's phones being used in the general vicinity of the shooting between 11 p.m. on June 9, 2017, and 2 a.m. on June 10, 2017. On cross-examination, Raschke acknowledged that he could not say that Medina's phones were actually in his possession at the time he calculated their approximate whereabouts.
¶ 84 The State then called Dr. Mitra Kalelkar. She is a forensic pathologist; the trial court recognized her as an expert in that field. Kalelkar performed the autopsy of the victim. She observed three gunshot wounds, one each to the head, right arm, and abdomen. She opined that the victim's death was caused by multiple gunshot wounds.
¶ 85 Officer Kenneth Heidemann of the Chicago Police Department next testified for the State. He stated that on November 24, 2017, at about 8:20 p.m., he was on duty in a marked squad car with Officer Diana Klaus. They were concluding an unrelated traffic stop, and they observed a dark blue Dodge Avenger with no operable rear registration light pass by. They attempted to stop the vehicle. Heidemann testified that he activated the squad car's emergency lights and siren. The car did not stop and instead accelerated. At one point, Heidemann observed "a black handgun come from the passenger side of the vehicle window." He radioed an assisting unit and told them where the firearm was located. Eventually, the vehicle struck a light pole, and its occupants were taken into custody. The gun thrown from the car was taken into evidence. It was processed by the Chicago Firearms Laboratory and linked to the shooting at issue here.
¶ 86 On cross-examination, Heidemann testified that the drug ecstasy was also recovered from the two individuals in the Dodge Avenger. Two cell phones were also recovered from them. No one from the Aurora Police Department has ever contacted Heidemann about this incident.
¶ 87 Sergeant Corey Petracco of the Chicago Police Department then testified that he was behind Heidemann's vehicle during the pursuit of the Dodge Avenger. He recovered the firearm thrown from the vehicle. On cross-examination, Petracco acknowledged that he had never been contacted by the Aurora police regarding this incident.
¶ 88 The State then called Rebecca Jansen, a nurse at the Rush Copley Emergency Department. She was working on June 10, 2017, and treated defendant for "gunshot wounds to his abdomen." Defendant was coherent. There were two holes in defendant's abdomen, one on the right side above his belly button and one on the left side. She did not note any black markings around the wounds. Defendant did not say how he had obtained these wounds. On cross-examination, Jansen testified that defendant arrived in the emergency room at about 12:47 a.m. Defendant's blood-alcohol content was .187. Defendant reported that this pain was a 10 on a 10-point scale. Fentanyl was administered at about 1:29 a.m.
¶ 89 The next witness to testify for the State was Martin Hix, a detective with the Aurora Police Department. At Trujillo's request, he showed Martinez two clips from a video recording. Hix had no familiarity with this case, but testified that Martinez identified Medina by name and also identified another male as one of the two shooters, along with Medina.
¶ 90 On cross-examination, Hix acknowledged that he was part of the initial canvass following the shooting at issue here; however, he did not know the video he showed Martinez was connected to this shooting at that time. Hix agreed that it would not be proper to place two suspects in the same lineup. Hix acknowledged that Martinez initially identified Medina in the first clip. When the second clip was played, Hix, referring to Medina, stated "obviously, in this video we see the same guy." Hix told Martinez to keep watching and see if he recognized anyone else. Hix rewound the video because Martinez was looking at "a different section of the screen." Martinez told Hix that defendant "looks like the guy that shot my cousin." When Hix asked how confident he was, Martinez stated that he was "pretty sure." Martinez stated that he knew Medina's name because Medina had been arrested.
¶ 91 The State's next witness was Michael Oeser of the Aurora Police Department. He drove the route from defendant's girlfriend Alvarez's house to Rush Copley Hospital three times. He started at 12:49 a.m. on June 15, 2017. Each trip took between 10 and 11 minutes.
¶ 92 The State then called Joe Howe, a patrol sergeant with the Aurora Police Department. He was dispatched to Rush Copley Hospital at about 12:55 a.m. on June 10, 2017, regarding a patient that had arrived there with a gunshot wound to the abdomen (defendant). There were no other calls for shooting victims or for reports of shots fired between midnight and 12:46 a.m. that day. He collected defendant's clothing, which included a white shirt and dark pants. On crossexamination, he clarified that the pants he recovered were not shorts. He added that the police would take the clothes of any shooting victim.
¶ 93 The State's next witness was Detective Darryl Moore. He was called in to assist with the investigation at about 8 a.m. on June 10, 2017, and he had no prior involvement with the case. He was assigned to administer some photographic lineups. He had no role in putting together the lineups. He administered lineups to four witnesses, including Martinez. He met Martinez at about 4:45 p.m. that day and administered the lineup in an unmarked squad car. This was recorded. Martinez identified one of the photographs as looking similar to one of the shooters, but added that the facial hair was different. Moore told Martinez to "try and concentrate on things that don't change over time." On cross-examination, Moore testified that he also administered lineups to Salgado, Gamboa, and Avitia, and none of them could identify anyone. Moore acknowledged that Martinez stated that he knew one of the individuals depicted in the lineup. Moore did not know why the background of defendant's photograph was blue, which was different that all of the other photographs in the lineup. Martinez told Moore that the person he identified was the person who shot first.
¶ 94 The parties entered into a stipulation that DNA analysis showed that blood collected at the crime scene belonged to the victim.
¶ 95 Troy Kern was then called by the State. He testified that he is a police officer with the Aurora Police Department. At about 12:38 a.m. on June 10, 2017, he and a recruit were dispatched to the scene of the shooting at issue here. He and the recruit secured the crime scene and assisted in a neighborhood canvass. At about 1:55 a.m., they observed an individual walking behind a building in the area. The "subject was coming from behind a house and * * * matched the description of the shooter from the Grove Street homicide." They stopped the individual as he tried to enter an apartment building. The person had two cellular telephones with him. Kern identified the person they stopped as Medina. Other officers transported witnesses to the location and a showup was conducted. After the showup, Medina was transported to the Aurora Police Department. His clothes were taken into evidence. Kern identified photographs of Medina taken that night wearing the clothing he had on when taken into custody-a white shirt, light jeans, and white shoes.
¶ 96 The State's next witness was Investigator Blaskey of the Aurora Police Department. At 2:20 a.m. on June 10, 2017, Blaskey was dispatched to bring a witness, Victor Avitia, to a showup where Medina had been detained, which was about five blocks from the crime scene. The showup was recorded. Avitia identified Medina as a shooter, stating he was "200 percent sure."
¶ 97 Shawn McCleary, an Aurora police officer, next testified for the State. He is assigned to the "crime scene unit, the evidence unit." He was assigned to process the crime scene in this case. The crime scene was located in a residential neighborhood. There was one streetlight at the corner and another halfway down the block. He identified a number of photographs he took of the scene, including "all of the fired cartridge cases that were recovered at the scene," which he collected. He did not locate any blood leading away from where the shooting occurred. On crossexamination, McCleary agreed that it was dark at the crime scene at 2:30 a.m. The police brought in large flood lights to aid in processing the scene.
¶ 98 The State then read two stipulations into the record. The first was that the state police had no record of defendant having a Firearm Owners' Identification Card on June 10, 2017. The second was that Investigator Jeff Hahn had specific knowledge regarding Aurora street gangs. He would testify that the Latin Kings "are an existing street gang in Aurora, Illinois, with three or more persons having an established hierarchy" and that the Latin Kings street gang has committed two or more gang-related offenses in Illinois. The offenses were felonies and occurred within five years of each other.
¶ 99 The State then called Jeff Hahn. Hahn is an investigator with the Aurora Police Department. He has been assigned to the "special operations group," which is a "proactive gang and narcotic unit," since 2005. He is also a part of the FBI West Suburban Gang Task Force. The trial court recognized Hahn as an expert in the identification and investigation of street gangs. Hahn explained that the Latin Kings align themselves with the People Nation and the Ambrose street gang aligns itself with the Folk Nation. The Folk Nation and the People Nation are rivals. Hahn knew defendant. Hahn testified that defendant is a member of the Latin Kings street gang. Medina is also a Latin King. They both were active members in June 2017. Hahn also knew Isaac Echols (who accompanied defendant and Medina in the liquor store video) to be a Latin King. Hahn further testified that the victim was not a member of a gang. Regarding the other people at Salgado's house (including Salgado), Hahn located no gang contacts except one for Avitia from 2010 when he was observed "wearing Latin King colored shoes" and riding in the car of a Latin Kings associate. Hahn further testified that Salgado's house, "at one point it was a known Ambrose gang house."
¶ 100 Hahn explained that "[a]ny time you hear anything that is thrown down, it would be a sign of disrespect that you are disrespecting that particular street gang." He continued, "[I]f a Latin King member would have said ['throw down the Ambrose,'] they are basically asking an individual to throw down the Ambrose to show that you are disrespecting them[,] to basically say that you are on the Latin King side or you are agreeing with that statement."
¶ 101 On cross-examination, Hahn stated that there were other gangs in the Aurora area that were rivals of the Ambrose street gang, including the Vice Lords. Hahn clarified that the person Avitia was with in 2010 was not a Latin Kings member but a Latin Kings associate.
¶ 102 The State then called Trujillo. He testified that he arrived at the crime scene at about 2:20 a.m. on June 10, 2017. There were no other calls of shots being fired that night in Aurora. He learned that a shooting victim had walked into Rush Copley Hospital shortly after the shooting. Defendant and Aleeya Alvarez (his girlfriend) were at the hospital. Alvarez lived about two blocks from the crime scene. Alvarez did not answer questions when interviewed by the police the next day. Medina was taken into custody about two to three blocks from the crime scene and half a block from Alvarez's house. The police received three 911 calls about the shooting at Salgado's house. They received no other calls about a shooting involving defendant-save for one made by the hospital after defendant arrived there.
¶ 103 On August 14, 2017, Trujillo met with Martinez to show him the liquor store surveillance video. Before Martinez viewed the video, Trujillo told him that he was not obligated to pick anyone out. Trujillo stated that he "use[d] the same instructions as the photo lineup and [gave] it to him regarding the video." Trujillo testified that he arrested defendant on September 14, 2017.
¶ 104 On cross-examination, Trujillo agreed that Officer Stone's notes indicate that Martinez reported that one offender was wearing a white shirt and the other a black shirt. He added that "[n]o other documentation shows that." He acknowledged that he spoke with Stone about her notes approximately a year after the shooting. He told Stone that he thought "there was an error in her description." He denied telling Stone to change her report, explaining, "I cannot direct her to correct it." He continued:
"[I]t didn't match the description that he had given us before. After the fact, every time we talked to [Martinez], he said two white shirts. I was wondering where she got the black shirt from, so I went back and checked and she had taken the report prior to the homicide where she had a suspect with a black shirt."
He agreed that he did not actually know what Martinez told Stone.
¶ 105 Trujillo testified that it was not his role to tell the evidence technician to look for blood leading away from the crime scene. They initially treated defendant as a victim while at the hospital. However, he was uncooperative, would not answer questions, and matched the description of one of the shooters; therefore, at about 6 or 7 a.m., they no longer regarded him as a victim. They did not arrest defendant when he was discharged from the hospital "the following day."
¶ 106 On redirect-examination, Trujillo stated that he did not know what Martinez told Stone or what questions Stone asked Trujillo. Stone had been a police officer for less than five weeks at the time of the shooting.
¶ 107 The State then rested. Defendant moved for a directed verdict; the trial court denied that motion.
¶ 108 Defendant first called Joseph Raschke, the FBI agent that had testified previously. He is a member of the Cellular Analysis Survey Team. He testified that in addition to cell phone records from Medina, he was also asked to examine records from defendant's phone. He plotted the usage of defendant's cell phone on a map. Between 11 p.m. and 1 a.m. on the night of the shooting, defendant's phone was used twice-at 12:05 a.m. and 12:50 a.m. Raschke agreed when asked, "And obviously, none of these cell towers which were utilized are any in where [sic] the vicinity of" Salgado's house. Four calls that were made between 1 and 2 a.m. also did not use the cell towers nearest to the crime scene.
¶ 109 On cross-examination, Raschke testified that while one could determine a phone's location, one could not tell who was in possession of the phone. The activity on defendant's phone at 12:50 a.m. was not near Rush Copley Hospital.
¶ 110 Defendant next called Officer Moore, who had testified previously. He showed a photographic lineup that had been prepared by Detective Rees to four individuals. Moore identified the lineup he showed to Avitia. Moore testified that Avitia never told him that someone in the lineup (number 6) "looked like somebody he recognized."
¶ 111 Defendant next called Aleeya Alvarez. She testified that when she accompanied defendant to the hospital, her cell phone was not working. She used defendant's phone to call his family. She had the phone in her possession while she was at the hospital. On cross-examination, she stated that she did not leave the hospital that night.
¶ 112 Officer Stone was next called by defendant. She arrived at the scene of the shooting at about 12:48 a.m. on June 10, 2017. She interviewed Martinez and asked him to describe the shooters. Defense counsel asked whether Martinez described the shooters "as two male suspects, one wearing a white T-shirt and another wearing a black T-shirt." She replied, "That's what was in my report, yes." When asked if that is what Martinez told her, she stated, "If it's in my report, yeah, that's what he said." She further testified that she had no independent recollection of what Martinez said. She recalled being approached by Trujillo on July 19, 2018, about her report of the incident. She stated that Trujillo did not tell her to change her report. She did, however, author another report. She explained that other notes had been submitted "that had a different description of a suspect than was in [her] original report." When asked whether she was "mistaken about the black shirt," she answered "I'm not sure." On cross-examination, she agreed that she had "no idea what Filiberto Martinez said to [her]" on June 10, 2017. She agreed that she had responded to a burglary "just prior" to the shooting. One of the suspects in that case was a female wearing a black T-shirt. She wrote notes from the burglary on the same card as notes from her interview with Martinez as well as notes pertaining to a third case. On redirect-examination, Stone testified that another officer reviewed her report before it was submitted, and that officer noted nothing wrong with it. Defendant then rested.
¶ 113 Following deliberations, the jury convicted defendant of first-degree murder, armed violence, and unlawful possession of a weapon by a street gang member. It further found that, during the commission of the offense of first-degree murder, defendant had personally discharged a firearm causing great bodily harm, permanent disability, or death to another person. Defendant filed a motion for judgment notwithstanding the verdict, which was denied. He was sentenced to a term of 55 years' imprisonment for first degree murder; 20 years for armed violence to be served consecutively; and three years for possessing a weapon while a street gang member to be served concurrently. Defendant now appeals.
¶ 114 II. ANALYSIS
¶ 115 On appeal, defendant raises four main issues. First, he contends that Martinez's identification testimony should have been excluded as it was the result of impermissibly suggestive procedures. Second, he argues that Avitia's in-court identification should have been barred as it also was the product of impermissibly suggestive procedures. Third, he contends he was not proven guilty beyond a reasonable doubt. Fourth, he asserts that the trial court abused its discretion in failing to sever the count charging defendant with possession of a firearm by a street-gang member.
¶ 116 A. Martinez's Identification
¶ 117 Defendant makes two primary arguments here. First, he contends that the trial court's determination that the procedures used by the police to produce Martinez's identification were impermissibly suggestive is supported by the manifest weight of the evidence. Given the deferential standard of review applicable here, we agree with this proposition. Second, defendant argues that the trial court erred in finding that the State demonstrated that Martinez's identification of defendant was, nevertheless, independently reliable. We will confine our analysis to defendant's latter contention. We will not disturb a trial court's decision regarding a motion to suppress an identification unless it is manifestly erroneous. People v. Denton, 329 Ill.App.3d 246, 250 (2002). A decision is "manifestly erroneous only if it contains an error that is clearly evident, plain, and indisputable." People v. Slover, 2011 IL App (4th) 100276, ¶ 17.
¶ 118 Before proceeding further, we note that the State asserts that defendant has forfeited this issue by failing to provide an adequate record to facilitate our review. Generally, an appellant bears the burden of providing an adequate record to facilitate review of the issues he or she raises. People v. Henderson, 136 Ill.App.3d 1041, 1045 (1985). Rules of forfeiture and waiver are the prerogatives of the court and do not create substantive rights for the parties. Dillon v. Evanston Hospital, 199 Ill.2d 483, 504-05 (2002). As the omissions pointed out by the State do not materially impair our review, we decline to apply the forfeiture rule here. For example, though a recording of Martinez being interviewed by Trujillo on the morning following the shooting is not part of the record, the content of that interview was presented extensively via the testimony of Trujillo. Similarly, though certain defense exhibits were not made part of the record, they were introduced by the State. The State intimates that what it presented may not be identical to what defendant presented; nevertheless, the State's exhibits are part of the record and defendant can certainly reference them in support of his arguments. Accordingly, we will address the merits of defendant's arguments.
¶ 119 As noted, as it is dispositive of this issue, we will address defendant's second argument regarding there being an adequate independent basis for Martinez's identification of defendant. On that issue, the trial court made the following factual findings: (1) during the shooting, Martinez was five or six feet from the shooters; (2) Martinez saw a gun and noted its shape; (3) Martinez's attention was focused on the shooters and the victim; (4) "[w]hen the guns came out, he tried to talk the shooters out of it"; (5) prior to the shooting, the two offenders approached, with their guns hidden, and asked for a lighter; (6) "[t]here were some lights" and it was "not completely dark"; (7) Martinez observed that the two offenders were Hispanic; (8) they had long hair; (9) after asking for a lighter, the shooters said, "Throw down Ambro"; (10) the group Martinez was with stated that they were not gang members; and (11) the shooters again said, "Throw down Ambro." The trial court found that Martinez had "a clear opportunity to observe [defendant] at the time of the offense." Moreover, Martinez gave a "consistent and correct general physical description of [defendant]." Also, Martinez "made an unprompted selection of [defendant] from a photographic lineup untainted by any previous identification procedures." Hence, the trial court held that Martinez would be allowed to make an in-court identification of defendant, expressly finding, "[T]he [S]tate has shown by clear and convincing evidence that F. Martinez['s] identification of the Defendant has [an] independent source free from the taint of the suggestive identification procedure."
¶ 120 Where, as here, a defendant establishes that an identification resulted from unduly suggestive procedures, the burden shifts to the State to show that, under the totality of the circumstances, the identification was reliable. People v. Jones, 2017 IL App (1st) 143766, ¶ 28. The State must establish by clear and convincing evidence that the identification was based on the witness's independent recollection. People v. Roberts, 2020 Il App (1st) 172262, ¶ 32 n. 3. In making this determination, the following considerations are relevant:" 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" Id. (quoting People v. Manion, 67 Ill.2d 564, 571 (1977) (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972))). ¶ 121 Defendant argues that an application of the factors set forth above establishes that the trial court erred.
¶ 122 Regarding the first factor, the opportunity of the witness to view the offender (Jones, 2017 IL App (1st) 143766, ¶ 28), defendant asserts "Martinez had a limited opportunity to view both assailants." He relies on the testimony of Officer Reeder (which was offered in support of a motion not at issue here), who stated that it was dark at the scene of the shooting. Defendant also points to photographs that show the police using artificial lighting to process the crime scene. Defendant further notes that Martinez did not see the shooters approach the crime scene and he testified that things happened "very fast." Defendant asserts that "[n]one of the foregoing is mentioned in the trial court's written order denying [his] motion." This, however, is immaterial, as we review the result at which the trial court arrived rather than its reasoning. People v. Johnson, 208 Ill.2d 118, 128 (2003).
¶ 123 While defendant accurately summarizes the evidence upon which he relies, conflicting evidence exists in the record. Most notably, Martinez testified that there was sufficient light for him to see defendant. Defendant counters that Martinez had a motive to lie, as he wanted to see the person he believed shot his cousin punished. Such considerations are matters of credibility and weight that are primarily matters for the trier of fact. People v. Hernandez, 319 Ill.App.3d 520, 532-33 (2001). Moreover, Salgado stated, "The house is right by a corner, so there is a streetlight on that corner, so there's a little bit of light." Defendant makes much of the fact that Martinez stated that there were streetlights-plural-in the area, when, in fact, there was only one. We find this critique unpersuasive in itself, and we also note that McCleary testified that there was another streetlight halfway down the block. Evidence also showed that Martinez was only about five or six feet away from defendant. While the actual shooting may have happened "very fast," the actual encounter lasted at least 30 seconds to over a minute (Salgado testified it lasted over a minute). In People v. Ramos, 339 Ill.App.3d 891, 901 (2003), the witness's opportunity to view the defendant for "several seconds" was found to weigh in favor of finding an identification reliable. See also People v. Hardy, 2020 Il App (1st) 172485, ¶ 52 (30 seconds sufficient). In short, given the conflicting evidence regarding the first factor, it does not support a conclusion that the trial court's decision was manifestly erroneous.
¶ 124 The second factor concerns the witness's degree of attention. Jones, 2017 IL App (1st) 143766, ¶ 28. Defendant asserts that there was little evidence regarding the degree of attention Martinez paid to the shooter. We disagree. Martinez agreed that some of his attention was focused on the shooters' guns, he denied that "a lot" of it was focused on the guns. He explained that he was "[t]rying to talk these guys out of shooting," so his "attention changed" to that. Thus, evidence existed indicating that Martinez was paying attention to the shooters. See People v. Rosa, 93 Ill.App.3d 1010, 1016 (1981) ("As to the second factor, complainant's testimony established that she maintained a high degree of attention, as demonstrated by the fact that [the] defendant talked to her during the 5-minute occurrence."). Defendant also points out that Martinez acknowledged having smoked cannabis prior to the shooting. We note that Martinez also testified that he had not smoked "a lot," it did not affect his ability to see or think clearly, and he did not feel impaired. We perceive no reason the trier of fact was required to discount this testimony. In any event, Martinez's consumption of cannabis is a matter affecting the weight of his testimony. See People v. Calabrese, 398 Ill.App.3d 98, 123-24 (2010). Again, nothing here would lead us to conclude that the trial court's decision was manifestly erroneous.
¶ 125 Defendant argues that the third factor, which concerns the accuracy of the witness's prior descriptions of the offender (Jones, 2017 IL App (1st) 143766, ¶ 28), is most important here. Defendant makes much of the fact that Stone's report indicates that Martinez initially reported that one of the shooters was wearing a black T-shirt. This issue was explored extensively in the proceedings below. It is true that Stone's notes state that Martinez told her one of the offenders was wearing a black T-shirt. However, about a year later, she authored an addendum to her report, explaining that the suspect in the black T-shirt was involved in a burglary she had responded to before the shooting, and she may have inadvertently included this information in her report about the shooting. Stone had no independent recollection of her conversation with Martinez at the crime scene. It is also true that Trujillo testified that the description of one of the suspects wearing a black T-shirt appeared nowhere other than Stone's initial report. Martinez testified that he did not tell Stone that one of the shooters was wearing a black T-shirt. The trier of fact could have reasonably accepted this explanation and concluded that Stone's initial report regarding Martinez saying one of the shooters was wearing a black T-shirt was produced in error. Thus, Stone's initial report does not require an inference that Martinez's initial description of the shooters was incorrect.
¶ 126 Beyond that, Martinez's initial descriptions of the shooters was limited. He stated only that the shooter later identified as defendant had black hair, a darker complexion, and a mustache. He provided no description of this shooter's height, weight, or age. Defendant argues that Martinez's failure to provide a detailed description of the attacker "is devastating to the reliability of his identification." We disagree. Given its lack of detail, Martinez's initial description does little to corroborate his subsequent identification. However, the limited details he provided were generally accurate, so they also did not undercut it. Indeed, such omissions generally are regarded as matters of weight and do not render an identification invalid. See People v. Pickens, 63 Ill.App.3d 857, 863 (1978). Finally, we note that Martinez picked a photograph of defendant out of a lineup as someone who looked similar to one of the shooters on the day of the shooting. As such, though this factor does not strongly militate in favor of either party, Martinez's selection of defendant in the photographic lineup adds some validity to his identification.
¶ 127 The fourth factor concerns the level of certainty expressed by the witness. Jones, 2017 IL App (1st) 143766, ¶ 28. When viewing the liquor store video, Martinez stated he was "pretty sure" that defendant was one of the shooters. At trial, Martinez testified that he would be able to identify the shooters. Defendant counters that the reliability of eyewitness evidence has been questioned recently, including the notion that a witness's confidence is a good indicator of its validity. See e.g., People v. Corral, 2019 IL App (1st) 171501, ¶ 44. However, this remains a consideration under Illinois and federal law. People v. Anderson, 2017 IL App (1st) 122640, ¶ 40; See United States v. Vines, 9 F.4th 500, 507 (7th Cir. 2021). In any event, this is but one of five factors, all of which support the trial court's ruling, so even if we were to accept defendant's argument concerning the continued viability of this factor, we would not come to a different result.
¶ 128 Finally, the fifth factor is the length of time between the offense and the confrontation. Jones, 2017 IL App (1st) 143766, ¶ 28. We note that Martinez selected defendant from a photograph as someone who looked similar to one of the shooters within 24 hours of the offense and that he identified defendant in the liquor store video about two months after the offense. As such, the identifications were made while Martinez's memory was still fresh. See People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (holding that 16-month gap did not weigh against finding identification reliable); People v. Hernandez, 121 Ill.App.3d 449, 455 (1984) (finding identification reliable where it took place "within days of the crime").
¶ 129 As all five factors support an inference that Martinez's identification was based on an independent source, we cannot say that the trial court's decision was manifestly erroneous.
¶ 130 Before concluding this section of the analysis, we acknowledge, as defendant points out, that when Martinez selected defendant's photograph as someone who looked like the shooter in the photographic lineup on the day following the shooting, he stated that defendant was the shooter who remained farther away and fired down the street, whereas Martinez subsequently identified defendant as the person who was closest to, and shot, the victim. Martinez testified that he had made an error and that defendant was the person that had approached closest. The fact remains, however, that Martinez did identify defendant as one of the perpetrators. To what extent this error affected the weight of Martinez's testimony was a matter for the trier of fact. Pickens, 63 Ill.App.3d at 863. It does not lead us to the conclusion that the trial court's decision to admit Martinez's identification of defendant was manifestly erroneous.
¶ 131 Accordingly, we hold that the trial court did not err in finding that Martinez's identification of defendant had an independent basis and was therefore reliable.
¶ 132 B. Avitia's Identification
¶ 133 Defendant next argues that it was plain error for the trial court to allow Avitia to make an in-court identification of defendant when Avitia was unable to identify defendant on the day the shooting occurred. Defendant acknowledges that this alleged error was not properly preserved. Accordingly, the standards that govern plain-error review apply. Pursuant to those standards, we may consider an unpreserved error where "(1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurs and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill.2d 551, 565 (2007). It is axiomatic that before we can consider whether an error is plain, we must first determine whether an error occurred at all. Id. Thus, we first turn to the question of whether the trial court erred by permitting Avitia to identify defendant during the trial.
¶ 134 Evidentiary rulings are reviewed using the abuse-of-discretion standard; hence we will reverse only if no reasonable person could agree with the trial court. People v. Caffey, 205 Ill.2d 52, 89 (2001). Defendant contends that the de novo standard should apply because "this is purely a legal issue that does not involve the trial court's discretionary fact finding or assessing the credibility of witnesses." Defendant does not, however, explain why this decision does not involve an application of discretion by the trial court. We therefore find defendant's position untenable, and we will apply the abuse-of-discretion standard.
¶ 135 Defendant complains that Avitia was allowed to make an in-court identification when he had never previously identified defendant. Defendant asserts that Avitia failed to identify him in a six-person lineup performed on the day of the shooting. We note, however, that Avitia testified (before the jury) that he told Moore, who had administered the lineup, that defendant's photograph looked "kinda like" one of the shooters. Thus, it is not strictly accurate to state that Avitia never identified defendant before the trial, because even a provisional identification may be entitled to some weight. See People v. Colon, 2018 IL App (1st) 160120, ¶¶ 44-54.
¶ 136 Defendant calls our attention to two cases and asks that we "revisit precedent to the extent that it holds that witnesses who have been unable to identify a defendant out-of-court may nevertheless make in-court identifications at trial"-specifically, People v. King, 54 Ill.2d 291 (1973), and People v. Lego, 116 Ill.2d 323 (1987). Initially, we note that both cases are from our supreme court, and we are therefore bound by them. Price v. Phillip Morris, Inc., 2015 IL 117687, ¶ 38 (quoting Agricultural Transportation Ass'n v. Carpentier, 2 Ill.2d 19, 27 (1953)).
¶ 137 The relevance of these two cases is clear. In King, 54 Ill.2d at 299, the State asked the witness if he could identify the defendant, who was sitting at the counsel table. The witness responded negatively. The State then directed the witness to look at the counsel table, and the witness persisted that he did not see the perpetrator. When asked to direct his attention to "that gentlemen sitting down there," the witness stated, "No, that is not him." Finally, the State asked the defendant to stand and remove his glasses. The witness then identified the defendant, explaining that he had never seen him wearing glasses. Our supreme court found that though this identification was the result of suggestive procedures, it was nevertheless admissible:
"The identification by the witness * * * was indeed the result of suggestive questioning, but the entire process, suggestive questions and all, took place in the presence of the jurors, who were in a position to determine the weight to be given to the fact that the defendant was wearing glasses in the courtroom, the difficulty of the witness with the English language, and all other attendant circumstances. We do not agree that the identification was inadmissible." Id. at 299.
¶ 138 Similarly, in Lego, 116 Ill.2d 339-40, when asked whether he saw the perpetrator in the courtroom, the witness replied that he did not. The State then directed the witness's attention to the counsel table and stated, "Right here sir, this gentleman here. Do you recognize this gentleman here?" The witness replied affirmatively. The supreme court reaffirmed its earlier holding in King and held that this identification, though suggestive, was admissible. Id. at 340-41.
¶ 139 In this case, the only purportedly suggestive aspect of Avitia's in-court identification was that defendant was seated at the defense's table. None of the additional sorts of conduct that took place in King and Lego transpired here. To the extent that this was suggestive, it happened in the presence of the jury. Therefore, in accordance with King and Lego, we can find no error here. In his reply brief, defendant attempts to distinguish King and Lego on the basis that unlike the witnesses in those cases, Avitia was unable to positively identify defendant in a pretrial lineup. Granting defendant this point and disregarding Avitia's testimony that he told Moore that defendant's photograph looked similar to one of the shooters, we nevertheless find this argument unpersuasive. Avitia made an in-court identification of defendant before the jury, rendering King and Lego controlling. Moreover, at trial, defense counsel elicited the fact that Avitia had previously failed to positively identify defendant, so the jury was able to consider the effect this had upon the weight it attributed to Avitia's in-court identification. Similarly, defense counsel also elicited aspects of Avitia's initial description of defendant that were inaccurate.
¶ 140 Defendant also relies upon the out-of-state case of Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014). In that case, the Massachusetts Supreme Court held that an in-court identification of the defendant was unnecessarily suggestive where the witnesses had never identified defendant prior to trial, essentially regarding it as a showup. Id. at 172-73. Here, as noted above, Avitia made a provisional identification of defendant before trial, rendering Crayton distinguishable. Moreover, as the identification defendant complains of took place before the jury, King and Lego would preclude us from following Crayton.
¶ 141 Defendant points out that not only was Avitia unable to positively identify defendant before trial, he also gave the police an erroneous description of the shooter he subsequently identified as defendant. Specifically, Avitia previously described the shooter subsequently identified as defendant as being 5'2" or 5'3" (defendant is about 5'7") and wearing a black baseball cap and jeans shorts. None of these characteristics were accurate. That Avitia provided this description to police was presented to the jury. Generally, such discrepancies are matters of weight for the jury to resolve. People v. Slim, 127 Ill.2d 302, 308 (1989). Here, the jury was able to consider these discrepancies and evaluate Avitia's in-court identification with them in mind.
¶ 142 In sum, we find no error occurred, so we cannot, in turn, find plain error.
¶ 143 C. Reasonable Doubt
¶ 144 Defendant next contends that he was not proven guilty beyond a reasonable doubt. When a criminal defendant alleges his conviction was based on insufficient evidence, we must construe all evidence in the light most favorable to the State and ascertain whether any rationale trier of fact could find beyond a reasonable doubt all elements of the offense at issue. People v. Brown, 2015 IL App (1st) 131873, ¶ 12. We will not disturb a conviction unless the evidence is so unsatisfactory as to raise a reasonable doubt as to the defendant's guilt. Id. It is not our role to retry a defendant. People v. Milka, 211 Ill.2d 150, 178 (2004). Assigning weight to evidence, evaluating the credibility of witnesses, and drawing inference from the record are matters primarily for the trier of fact. Id. Moreover, "The trier of fact need not, however, be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. It is sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt." People v. Hall, 194 Ill.2d 305, 330 (2000).
¶ 145 Defendant begins this argument by asserting that, "As more fully set forth [above], the identifications of Defendant as the shooter were so unreliable-and the witnesses so lacking in credibility-that they cannot be used to support Defendant's convictions." For the reasons set forth above, we disagree. Construing the record in the light most favorable to the State, Martinez's and Avitia's identifications of defendant support his convictions.
¶ 146 Moreover, defendant's convictions rest on more than these two identifications. Salgado recounted the shooting and described the offenders as two Hispanic men with long hair wearing white shirts, as did Gamboa. A gunshot residue kit collected from defendant indicated he had been in the proximity of a discharge of a firearm. The liquor store video showed defendant in the company of another known offender in the vicinity of the crime scene shortly before the shooting occurred. A gang-related motive existed for the murder. Defendant was shot and went to the hospital shortly after the offense, his co-offender Medina had fired multiple shots with defendant in close proximity, and no other shootings were reported in the area that night. Defendant told a nurse that he had been shot but provided no details about the shooting. Circumstantial evidence may support a finding of guilt. People v. Grathler, 368 Ill.App.3d 802, 808 (2006).
¶ 147 In short, defendant's failure to convince us that the identifications made by Martinez and Avitia were entitled to no weight renders this argument untenable. Furthermore, other evidence of defendant's guilt exists. These identifications, considered in light of the other evidence presented at trial, are sufficient to support defendant's convictions.
¶ 148 D. Severance
¶ 149 Defendant's final contention is that the trial court erred in failing to grant his motion to sever the count alleging unlawful possession of a firearm by a street-gang member. Prior to trial, defendant moved to sever this count, citing the prejudicial nature of the evidence necessary to sustain it. Defendant further pointed to the fact that the jury would have to be instructed on the definitions of "street gang" and "street gang member." Defendant acknowledges that the trial court ruled that evidence of defendant's gang membership was relevant and could be admitted to establish motive for the shooting, regardless of whether this count were severed. However, defendant asserts that if this count were not severed, defendant's gang membership would be emphasized to the jury. This issue was properly preserved for review.
¶ 150 Generally, multiple offenses that are part of the "same comprehensive transaction" may be joined for trial 725 ILCS 5/111-4 (West 2018). "A trial court has substantial discretion in deciding whether to sever separate charges, and its decision will not be reversed on appeal absent an abuse of that discretion." People v. Anderson, 2013 IL App (2d) 111183, ¶ 68. An abuse of discretion occurs where no reasonable person could agree with the trial court. People v. Ramos, 353 Ill.App.3d 133, 137 (2004).
¶ 151 Here, regardless of whether the count alleging unlawful possession of a firearm by a streetgang member was joined, the jury would have heard substantial evidence of defendant's gang affiliation, as the trial court did not abuse its discretion in finding it relevant to motive. See People v. Cruzado, 299 Ill.App.3d 131, 142 (1998). Multiple witnesses testified that prior to shooting, the offenders stated "throw down Ambro" or something similar. Hahn the gang expert, explained that this was a request to disrespect the Ambrose gang and "basically say that [they were] on the Latin King side." When the group of which the victim was a part replied that they were not gang members, the offenders started shooting. This evidence would have been admissible regardless of whether the complained of offense was joined, as it established a motive for the shooting.
¶ 152 Defendant argues that to prove him guilty of unlawful possession of a firearm by a streetgang member, the State needed to show that the Latin Kings were a street gang. This required the following showing: "(1) that the Latin Kings were involved in two or more gang-related criminal offenses; (2) that at least one such offense was committed after January 1, 1993; (3) that both offenses were committed within five years of each other; and (4) that at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony." People v. Murray, 2019 IL 123289, ¶ 24 (citing 740 ILCS 147/10 (West 2012)). We fail to see how such general evidence about the activities of the Latin Kings could be more prejudicial than the evidence that showed that defendant discharged a firearm toward a group of people because of their failure to "throw down Ambro." At the very least, a reasonable person could agree with the trial court on this point.
¶ 153 Defendant complains that he was "cornered into accepting a stipulation that the Latin Kings met the criteria" of being a street gang. He contends that he had to do so to prevent "opening the door to even more unfairly prejudicial testimony." He fails to explain what that evidence was or why it was more prejudicial that the motive evidence discussed above. He further asserts that he was forced to choose between presenting a defense to the weapons charge, thereby exposing the jury to unfairly prejudicial evidence (a proposition we find unpersuasive, as we have explained above) or foregoing presenting such a defense. However, if evidence were available to controvert the proposition that defendant was a street-gang member, it would also negate the motive for the crime presented by the State. Again, a reasonable person could conclude that defendant would not suffer unfair prejudice from the joinder of these charges.
¶ 154 In short, we find no abuse of discretion here.
¶ 155 III. CONCLUSION
¶ 156 In light of the foregoing, the judgment of the circuit court of Kane County is affirmed.
¶ 157 Affirmed.