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People v. Mcclendon

OPINION FILED SEPTEMBER 3, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TONY MCCLENDON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. James K. Robinson, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant, together with eight other persons, was charged in the circuit court of Vermilion County with the offenses of mob action and aggravated battery in violation of sections 25-1(c) and 12-4(b)(8) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 25-1(c), 12-4(b)(8)). Five of the persons so charged entered pleas of guilty. Defendant and two others were tried by a jury. The record does not indicate any disposition as to the ninth person.

The jury returned verdicts finding defendant guilty on both charges and he was sentenced by the trial court to three years' imprisonment for the aggravated battery and one year's imprisonment for mob action, the sentences to run concurrently. One of his co-defendants was found not guilty on both charges; as to the other, the verdict was guilty as to mob action but the jury was unable to reach a verdict on aggravated battery.

Defendant has appealed raising five issues: (1) admission of evidence concerning his purported gang membership; (2) refusal of the trial court to permit impeachment of the complaining witness; (3) refusal of the trial court to permit impeachment of a State's witness; (4) excessive sentence; and (5) ineffective assistance of counsel. We find reversible error in the trial court's refusal to allow impeachment of the complaining witness and hence reverse and remand for a new trial. This being so, the other issues become largely moot, but we will comment on them for guidance at retrial.

Since no issue is raised concerning reasonable doubt, we will not indulge in a lengthy recitation of the facts, but a brief recapitulation will be in order so that the issues raised may be more readily comprehended.

The complaining witness, Joe Rapier, testified that as he was walking out of Jimmy Harold's tavern he bumped into Freddie McClendon, a relative of defendant. Herman Strong was standing next to Freddie and told Rapier that he would blow his head off. Rapier and Freddie then started fighting in the tavern. The fight was broken up by bystanders and the two combatants then adjourned to the street where the fight was resumed. Rapier stated that defendant and seven others, naming them, followed him and Freddie out into the street and there attacked him. He claimed that he was knocked down, beaten, and kicked by defendant and the others and that defendant struck him on the head with a bottle. Eventually Rapier was able to escape his attackers.

Other persons present, including the two co-defendants, testified as to their versions of the melee. Both of the co-defendants maintained that defendant did not fight with Rapier; that it was Freddie and Rapier who were fighting. One witness, who was not charged, testified that she was present and saw defendant swinging at Rapier and that defendant was in the middle of the fight. She estimated the participants in the fight and the bystanders at about 15 to 20 people. Additional facts, as necessary, will be considered in connection with the several issues.

The issue concerning gang membership arose during the direct and cross-examination of Rapier. He stated that he had known all of his attackers for years. The State's Attorney then asked him what they had in common. Over defense objection, he stated that they were all related and "hung around" together. He was next asked if they belonged to any group or organization. Again over objection, he stated that they belonged to a street gang known as the Disciples. He further testified that he had been a member of a different gang, the Vice Lords, for five years.

Rapier further testified that about a week before the fight he had seen defendant making gang signs at a local mall and had heard him tell a companion of Rapier, "I be B.G.D." It was established that the acronym meant Black Gangster Disciples.

On cross-examination Rapier stated that he knew defendant to be a gang member and assumed that the co-defendants were also members because they associated with defendant. He further stated that while the fight was going on, defendant talked about the Disciples and heard gang slogans being shouted. He heard people yelling, "You don't f____ with the Disciples."

Defendant argues that the admission of the testimony concerning gang membership was prejudicial and warrants a new trial. His argument is twofold: (1) that gang membership can be established only through expert testimony, and (2) even if Rapier can be established as an expert, there was insufficient testimony to show that the offenses were gang-related.

• 1 The rule has been established that proof of gang membership is admissible only if there is sufficient proof to show that such membership is related to the offense charged. Otherwise, it is prejudicial as showing that defendant is a bad person. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658.) Defendant cites People v. Calderon (1981), 98 Ill. App.3d 657, 424 N.E.2d 671, for the establishment of a new rule that gang membership must be proved by expert testimony.

We do not so understand Calderon. In that case three occurrence witnesses for the State testified that a group of persons approached them yelling "king love." On cross-examination by the defense, they testified that the term signified the Latin Kings, a gang, but denied being members of another gang, the Imperial Gangsters. In his case in chief, the defendant testified that he knew members of the Latin Kings and the Imperial Gangsters but denied being a member of either. In rebuttal the State called a police officer who had done investigative work in the gang-crimes unit. He testified that based upon his experience and his observation of the defendant in the area of the offense he believed that the defendant was a member of the Latin Kings.

The Calderon court pointed out that the issue of gang membership was elicited by the defense and that the expert opinion of the officer was presented in rebuttal only after the defendant himself had denied gang membership. These were two separate issues. In the instant case defendant attempts to combine them into a new rule. We disagree.

• 2 Expert testimony is required only when the subject being examined is beyond the knowledge and experience of an average juror. (Perschall v. Metropolitan Life Insurance Co. (1983), 113 Ill. App.3d 233, 446 N.E.2d 570.) We cannot conceive that gang membership is so abstruse as to be beyond the ken of a juror. If defendant's theory were pressed to its logical extreme, it would be necessary to call the Chairman of the State Board of Elections to establish that James R. Thompson is Governor of Illinois. The Calderon court simply reiterated the familiar rule found in Hairston that gang membership was relevant to show common ...


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