APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
515 N.E.2d 166, 161 Ill. App. 3d 688, 113 Ill. Dec. 357
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
On appeal, defendant contends the trial court erred in: (1) allowing testimony of a homicide unrelated to the charges against him and admitting into evidence a photograph of the homicide victim; (2) allowing testimony of his alleged gang membership and prior narcotics use; (3) allowing testimony of an unrelated arrest for aggravated battery and of two bonds posted on his behalf; (4) allowing the State to argue that he failed to prove his innocence and was required to meet the State's evidence; (5) imposing an extended-term sentence.
Allan Chung testified for the State that he bought the First Chinese Foods carryout restaurant on October 1, 1983, after having worked there for one month under the previous owner, Mr. Ma. Chung's parents and Adona Cheng worked with him in the restaurant. Defendant came to the restaurant in the first week of October 1983, told Chung that he belonged to the Black Gangster Disciple Nation , demanded $30 a week plus a daily free meal, threatened to shoot him, burn the restaurant down and hurt his family if he didn't comply, and displayed a gun. Defendant also told Chung that Felton Peck was the leader of the BGDN and that Peck was taking the money from Ma before Chung bought the restaurant. Ma had spoken to Chung about Peck and Chung had met him before October 1st. Peck had been shot to death on September 28 just outside the restaurant. Defendant also told Chung he would pick the money up every Wednesday. Chung complied with defendant's demands the first Wednesday in October because he feared harm to his family or his business. Defendant gave Chung a sign to place on the wall in the employee section of the restaurant, which was divided from the public section by a plexiglass window at which the customers placed their orders. In such a position, the sign could be seen by anyone placing an order. The sign read: "No sitting, drinking unless buying food" and had the initials "B.G.D.N." at the bottom. Although defendant told Chung those were his initials, he later learned they stood for "Black Gangster Disciple Nation."
On March 27, 1984, defendant's girlfriend or wife came to the restaurant and conversed with Chung. Thereafter, Chung posted a $100 bond for the defendant because he was scared that, if he did not do so, defendant would harm him or his family or burn down the restaurant when he got out. Defendant told Chung he would deduct the $100 from the weekly payments at a rate of $25 and would take only $5 a week for the next four weeks. In mid-April, defendant demanded $150 from Chung to pay his lawyer and he agreed to deduct $25 per week from the next six weekly payments. Chung identified a piece of paper which Adona Cheng had written to keep track of the $250 in deductions from the weekly payments. Chung then paid defendant $30 per week until September 1984. On September 19, 1984, defendant's girlfriend/wife came to the restaurant and demanded that Chung post a $2,500 bond for defendant, which he refused to do. The next day, defendant came to the restaurant, asked for the sign, tore it up, threw it in the garbage and told Chung, "From now on no more protection for you . . . I'm gonna burn your place down . . . I'm going to shoot you down . . .. You watch." Defendant took the torn sign from the garbage and left. Chung called the police an hour later and subsequently put the restaurant up for sale. He testified he had paid defendant about $1,500 and had given him about $1,000 worth of food. He specifically denied having hired defendant to work in the restaurant in any capacity. On cross-examination, Chung admitted that although the police would come by the restaurant to chase away unruly individuals, he never told them about defendant's extortion and they never saw the sign defendant had given him.
Adona Cheng testified that defendant ordered food every day but never paid for it, that he did not work in the restaurant, and that she saw him with a gun several times. She would pay him the $30 on Wednesdays when Chung was busy, and she believed that if they did not pay defendant he would burn the restaurant down and shoot them. She corroborated that Chung gave defendant $250 for bond and his lawyer that he deducted from the $30 weekly payments and that defendant's girlfriend/wife demanded that Chung post a $2,500 bond for defendant in September 1984. Finally, she corroborated that defendant came to the restaurant the next day, told her to take the sign with the initials "B.G.D.N." down and threatened to burn the restaurant down and kill her. On cross-examination, she stated she did not tell the police defendant was threatening and extorting money from them because the police could not protect her 24 hours a day.
Chicago police officer Albin Reyes testified that he responded to a call regarding the shooting of Felton Peck on September 28, 1983, near Chung's restaurant. He recalled seeing defendant in the restaurant several times in 1984 and responding to a call from the restaurant on September 20, 1984. On that date, Chung told him and his partner that he had been paying defendant $30 a week and had also paid him bond and attorney's expenses. Officer Reyes identified the piece of paper on which Cheng kept track of the deductions for those expenses.
Chicago police officer Robert Norise testified he had been assigned to the Gang Crimes South unit for five years and was familiar with the BGDN. He stated that the gang is most heavily concentrated on the south and west sides of the city and has 200 to 300 members in the area of the restaurant. He also stated its symbols include pitchforks, a heart with wings and a pitchfork in it, and the initials "B.G.D.N." He identified a photograph of Felton Peck's arm as depicting a person's arm with crossed pitchforks and the initials "B.G.D.N." on it, which indicated the person's membership in the BGDN. He also stated that he had known defendant for 20 years and that defendant had told him about 15 years before that he was a member of the BGDN. Finally, he stated that he arrested defendant for aggravated battery on September 18, 1984.
Steven Chan testified that he worked as a bond writer in Division 5 of the Cook County Department of Corrections for the Cook County circuit court clerk's office. He identified a $2,500 bond slip which he made out on September 20, 1984, for defendant and a $100 bond slip for defendant made out on March 28, 1984, at the Seventh District Police Station. Dr. Tae An, an assistant medical examiner, identified the photograph of Felton Peck's left forearm as taken during an autopsy of Peck's body and as showing a tattoo on the arm.
For the defense, defendant's mother testified that he lived with her in 1983 and 1984, that he worked for Allan Chung at the restaurant, that Chung and Cheng would call defendant in the early morning to go to work but she did not know whether he had regular hours there, that she bonded defendant out of jail on September 20, 1984, and that he stayed home that entire evening. Moses Dillworth testified that he had known defendant about two years, that defendant used to work at Chung's restaurant and would occasionally take his order when he bought food for his father. He stated he did not know whether defendant was a member of the BGDN. Ricky Mitchum testified that when he frequented Chung's restaurant in 1983 and 1984 defendant would take his order. Mitchum denied he was a personal friend of defendant's and stated he did not know whether he was a member of the BGDN.
Defendant testified he began working for Chung in the last week of September 1983 as a bouncer and occasional order taker for $30 per week and a free meal. He would go to work whenever they would call him from the restaurant and tell him they were having trouble with customers. He admitted borrowing money from Chung "[a] lot of times"; and specifically admitted borrowing $100 around March 1984, which he paid back by receiving only $5 for four weeks, and $150 approximately 10 days later. He also admitted going to the restaurant in September 1984 to ask Chung why he had not posted a $2,500 bond for him and also having "cussed at him and called him names." Defendant denied having pulled a gun on anyone at that time, ever having threatened Chung or Cheng, belonging to the BGDN or telling Officer Norise that he belonged to it. He also denied having seen or placed a sign with any initials on it in the restaurant. He claimed that neither Allan Chung nor Adona Cheng ever told the police he was extorting money from them although they came to the restaurant many times to remove unruly customers. I
Preliminarily, we address the State's contention that defendant has waived most of the errors alleged by failing to include them in his motion for a new trial or to object to them at trial. Anticipating this argument, defendant urges us to reverse his convictions under the plain error rule. It is well established that to preserve error for review a defendant must object to it at trial and raise it with specificity in a post-trial motion for a new trial. (People v. Smith (1985), 139 Ill. App. 3d 21, 27, 486 N.E.2d 1347.) However, under Supreme Court Rule 615(a), we may notice "[plain] errors or defects affecting substantial rights . . . although they were not brought to the attention of the trial court." (87 Ill. 2d R. 615(a).) This rule is not a general saving clause preserving for review all errors affecting substantial rights whether or not they were brought to the attention of the trial court; rather, before plain error can be used to circumvent the general rule of waiver, "it must be plainly apparent from the record that an error affecting substantial rights was committed." (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) In ...