Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a conviction, after a jury trial, for murder, armed robbery, and conspiracy to commit murder. He was sentenced to serve concurrent terms of imprisonment, respectively, of 80 years for murder, 30 years for armed robbery, and 7 years for conspiracy to commit murder.
Defendant's conviction was based largely on the testimony of a co-defendant, Shelanda Merrill. Merrill, in exchange for her testimony, received a dismissal of the murder, armed robbery, and conspiracy charges, and received an agreed sentence of three years and nine months for a guilty plea to concealment of a homicidal death. She was an admitted forger, pickpocket, and prostitute.
Merrill testified as follows: On the evening of December 21, 1981, she saw defendant, James Wilson, Albert Fields, and Ricky Knight, all Black Gangster Disciples street-gang members, at Chili Mac's Restaurant. Knight told Merrill to ask the eventual victim, Stella Fernandez, to come out of her house. Knight told Merrill he would be back and left Chili Mac's with defendant. Shortly afterwards, Merrill saw Stella in front of Chili Mac's. Merrill, afraid for her friend, told Stella to go home, but Stella refused. At 11:30 that evening, after Wilson and Fields had been arrested, Merrill and Stella went to the police station to arrange Wilson's release on bail. Subsequently, both Wilson and Fields were released.
Merrill, Fields, Wilson, and Stella then went to an apartment at 4410 South State Street. After they knocked, defendant opened the door with a sawed-off shotgun in his hand. After entering the apartment, Fields and defendant held a whispered conversation for about five minutes, after which Fields gave Stella two pills. After taking them, Stella went into the bedroom to lie down. Fields went into the bedroom followed by defendant with the shotgun. Merrill heard the victim yell, "stop, stop, stop, Stokes." (Stokes was Fields' nickname.) Merrill and Wilson went to the bedroom and saw defendant in the doorway still holding the shotgun, and saw Fields hitting Stella's face with his fists. Defendant then pointed the gun at Merrill and Wilson and ordered them into the bedroom. Fields removed money from the pocket of the unconscious Stella, and defendant went into the kitchen to get some cord.
Still holding the shotgun, defendant returned to the bedroom and gave the cord to Wilson who, in turn, handed the cord to Fields. Fields put the cord around Stella's neck and told Wilson to hold the cord. When Wilson refused, defendant told him to hold the cord or the same thing would happen to him. Thereafter Wilson held the cord while Fields pulled the cord around Stella's neck for about five minutes. When the victim failed to respond, Fields went into the bathroom and came back with a rubber hose which he put around her neck and pulled it with defendant. Afterwards, Fields dragged the victim to the bathroom and put her head in the toilet bowl for about three minutes. Defendant then put tape on the victim's mouth. Fields wrapped the body in a sheet and dragged it out of the building, put it in a garbage can, and dragged the can for several blocks. Merrill, Wilson, and defendant went with Fields. Defendant put some paper in the garbage can and ignited it, telling Merrill that she was not to say anything or the same thing would happen to her. The next day, Merrill and Wilson left on a prearranged trip to New York and then to California, where they were arrested.
Dr. Robert Stein, the chief medical examiner of Cook County, testified that the victim's cause of death appeared to be ligature strangulation. He also concluded that the victim was dead prior to being set on fire.
Joaquin Wilindez, a Chicago police officer testified next. Wilindez stated that he had been a gang specialist for about five years. His duties included gathering information and classifying, identifying, and apprehending gang members. He explained the organizational structure of the "Black Disciples" around 4410 South State. He identified Ricky Knight as the leader of the unit at 4410 South State, defendant as second in command, and Fields, known as "Stokes" or "Boo Boo," as the number three men in the unit. Wilindez' information was based on intelligence gathering from arrestees and other people. He had never met defendant.
Defendant took the stand and testified that he had lived all his life in the Robert Taylor Homes on South State Street and that he went to high school up to his third year. He was 22 years old on the date of the trial. Defendant's version of the events leading to the death of the victim differed substantially from Merrill's testimony. After meeting Fields in the hallway of 4410 South State, defendant responded "no" when Fields asked him if he had a pistol. Fields invited him to join Fields and the other three persons who were in an apartment "getting high." After gathering at the apartment, the group began smoking marijuana. Wilson, Fields, Merrill, and defendant stayed in the living room while the victim laid down in the bedroom. Wilson asked defendant into the bathroom where he told him the victim had stolen Fields' money. Fields then entered and asked defendant if he had a pistol. This time defendant said that he did. Fields told defendant that he wanted the pistol to kill Stella because she had taken his money. Defendant started to hand the pistol to Wilson, but took it back. Fields and Wilson protested and indicated that they would kill the victim in New York.
After smoking some more marijuana, Fields cut the telephone cord off and went into the bedroom where Stella was sleeping. Defendant heard the victim yell, "Stop, Stokes, stop." He leaned back in his chair in the living room and could see Fields punching the victim. Defendant testified that he told Wilson that Fields was beating the victim. Wilson then got up and went to the bedroom. Defendant leaned back again and saw Fields and Wilson pulling on both ends of the telephone cord which was around Stella's neck. Defendant and Merrill then went to the bedroom. Defendant said "Damn, why don't you let the girl go, you already done beat the girl." Fields responded that she took his money. Stella fell to the floor but opened her eyes. Merrill said, "that bitch ain't dead; kill that bitch. I hate that bitch." Merrill then hit the victim on the head with a milk crate, after which Wilson kicked Stella in the side. Fields then removed a roll of money from Stella's pocket. Wilson poured a cup of water in Stella's face, but she did not move. Fields next dragged Stella to the front room and rolled her into a sheet. Defendant started to leave when Fields asked him to help carry Stella's body downstairs. Defendant responded, "You have to get the body out the building the best way you can," and then left.
Subsequent to her arrest in California, Merrill told the police that she knew nothing about Stella's murder. She testified that this was because defendant had told her she would be killed if she talked about the murder. On December 23, 1981, a Chicago police detective, Albert Jordan, spoke with Ricky Knight and his girl friend, Brenda Armstrong, about the killing at police headquarters. At that time, Armstrong made several telephone calls from the station. Afterwards, defendant called Detective Jordan. When asked if he knew anything about the murder, defendant said he did not. The detective asked defendant to come to the station and defendant declined. However, he did appear the next evening and was taken into an interview room to speak with Knight. Detective Henry Sigler testified that he was present in the room and that after Knight told defendant to tell the police what he knew about the murder, defendant gave his statement to the police.
After Merrill learned that defendant had implicated her in the killing, she told police that Fields and defendant had killed Stella. Defendant testified that he voluntarily went to the police and cooperated up until his arrest on January 12, 1982. He also testified that he had never owned a shotgun and had been a member of the Disciples between 1971 and 1975, but was not a member at the time of the murder. Defendant also stated that he did not try and stop Fields and Wilson because he was afraid of retaliation against his family. He also denied that Knight had told him to talk to the police.
The next State witness was Assistant State's Attorney LaBrenda White, who was permitted to testify over defense objections. The defense objected to her statements because the memorandum of her conversation with defendant was made available to him the day before her testimony. She testified that she spoke with defendant the evening of his arrest. Defendant told her that Fields grabbed defendant's pistol from him but that defendant got it back before anything happened to Stella. This statement was used at trial to impeach a portion of defendant's testimony.
Prior to trial, the defense made a discovery request for the "street file" concerning the crime. The trial court conducted an in camera inspection of the requested material. Both counsel were present; counsel for defense was not permitted to see the file. Thereafter, the trial judge ruled certain portions of the file to be nondiscoverable and allowed defense counsel to see only those portions the judge considered material and relevant to the case.
Following the trial, defendant was convicted of murder, armed robbery, and conspiracy to commit murder, and was sentenced to 80-years imprisonment. Albert Fields pleaded guilty to murder and armed robbery and received a 30-year sentence.
Defendant raises nine issues on appeal.
Defendant's first argument concerns Officer Wilindez' opinion that defendant was a member of the Black Gangster Disciples street gang, and that he was second in command of the gang unit in his project building, Ricky Knight being the leader. The officer further stated that Albert Fields was third in command of the unit. Defendant contends that this information was based on unreliable and prejudicial hearsay, thus depriving him of his sixth amendment right to confrontation, and cites People v. Washington (1984), 127 Ill. App.3d 365, 468 N.E.2d 1285, as support for this argument. In Washington, the court ruled that testimony of a gang investigator naming the defendant as a gang member at the sentencing hearing was inadmissible hearsay since the testimony was based solely on reports from an unnamed informant. Defendant also asserts that Officer Wilindez did not qualify as an expert because his opinion did not encompass any matters outside the knowledge of average laypersons.
In determining whether the officer's testimony is admissible, we find that resolution of this issue involves a three-part analysis: (1) whether the officer's testimony qualifies as expert opinion; (2) if so, is it relevant; and (3) does the prejudicial effect of that opinion outweigh its probative value.
A similar problem was addressed in People v. Calderon (1981), 98 Ill. App.3d 657, 424 N.E.2d 671, appeal denied (1981), 85 Ill.2d 579. In Calderon, a police investigator who had been with the gang-crimes unit for six years testified as to the defendant's gang membership. The investigator based his opinion on information he had gathered relating to gang activity over the years and on his observation of gang activities in the vicinity. The court held that this experience qualified the investigator as an expert, and citing People v. Lamprey (1979), 79 Ill. App.3d 1065, 398 N.E.2d 1076, also noted that the determination as to the qualification of an expert witness lies within the discretion of the trial court. People v. Calderon (1981), 98 Ill. App.3d 657, 661, 424 N.E.2d 671, appeal denied (1981), 85 Ill.2d 579.
• 1, 2 Generally, an expert witness is qualified if, because of his skill, training, or experience, he is better able to form a more accurate opinion as to the matter under consideration than is an ordinary person. (People v. Johnson (1975), 32 Ill. App.3d 36, 46, 335 N.E.2d 144.) Specialized formal training is not necessary and experience may qualify one as an expert. (People v. Lang (1982), 106 Ill. App.3d 808, 813, 436 N.E.2d 260.) Furthermore, an expert is permitted to state his opinion if the information upon which he is basing it is of a type reasonably relied upon by experts in the field, even though the information may not be admissible in evidence. Wilson v. Clark (1981), 84 Ill.2d 186, 193-94, 417 N.E.2d 1322.
In the case at bar, Officer Wilindez testified that his opinion was based on five years' experience in the investigation of gangs in the area. His information was culled from a number of sources, including interviews both with arrestees and other people, observation, and infiltration of the gang. He further stated that he followed up these interviews by verifying and investigating the information he received. He did not repeat the actual ...