Before the jury starts to see it the camera will be turned away from the jury and it's only until we get to the exact spot that we'll then turn it to the jury. We'll have the sound system really low and it will be turned away from the jury."
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
518 N.E.2d 320, 164 Ill. App. 3d 802, 115 Ill. Dec. 795 1987.IL.1835
Appeal from the Circuit Court of Cook County; the Hon. James Heyda, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Following a jury trial in the circuit court of Cook County, the defendant, Victor Cruz, was found guilty of the attempted murder of Javier Garcia on January 14, 1982. Cruz was sentenced to 22 years' imprisonment. On appeal Cruz contends that the trial court erred and that he was denied a fair trial because the State was erroneously permitted to present to the jury a highly inflammatory, prejudicial and inadmissible documentary video film, entitled "Street Wars," in an unsuccessful attempt to impeach his testimony on a purely collateral and irrelevant matter. We reverse and remand for a new trial. The pertinent evidence and procedure at trial follow.
During the course of the trial, the trial Judge conducted a hearing, out of the jury's presence, to determine the admissibility of evidence which would indicate that the shooting of Garcia was related to street gang activities. The defendant's attorney moved to exclude any evidence which would suggest to the jury that defendant was a member of the Ambros street gang at the time Garcia was shot and to exclude evidence that defendant was motivated by such street gang membership to shoot Garcia.
The prosecutor stated that Garcia would testify that he had been harassed by members of the Ambros street gang to become one of their members and that the shooting was an Ambros gang attempt to recruit Garcia. The prosecutor admitted that the State had no evidence, nor even any knowledge, that any member of the Ambros street gang had harassed Garcia. The prosecutor stated, however, that if the defendant testified that he was not a member of the Ambros street gang at the time Garcia was shot, then the State would present contradictory evidence, which would also establish gang activity as the motive for the shooting of Garcia and which would reinforce Garcia's identification of defendant as the person who shot him. The prosecutor made no mention at this time that the contradictory evidence to which he referred was the documentary videotape gang film.
The trial Judge read a police report furnished by the prosecutor in which Garcia stated to the police that he had been recently harassed by Ambros members and that defendant was a member of the Ambros. The trial Judge stated, "I would allow it to go in. From reading this police report it is quite evident that this is a gang related case." The trial Judge also ruled that if Garcia belonged to a rival gang of the Ambros', then such evidence was also relevant and admissible to show Garcia's bias and motive to testify falsely against the defendant. These comments by the trial court appear to be the initiation of the prosecutor's vacillation on the motive for Garcia's shooting from (1) an attempt to recruit Garcia into the Ambros street gang to (2) revenge by the Ambros street gang against Garcia because he was a member of the Ambros' rival street gang, the Bishops, who were believed to have shot a member of the Ambros previously.
Garcia testified before the jury on direct examination that on January 14, 1982, at approximately 7:45 a.m., he left his parents' house and walked toward Benito Juarez High School. Garcia stated that when he was about 1 1/2 blocks from the school he saw Cruz walking towards him. Garcia stated that Cruz called out Garcia's name, and Garcia turned around. Cruz pulled out a gun and shot Garcia in the mouth. Garcia testified that Cruz ran in one direction and he ran in the opposite direction toward the school. When he reached Juarez High School he ran to the principal's office and the police were summoned.
Garcia further testified on direct examination that Cruz was a leader of the Ambros street gang. Garcia testified that he belonged to the Bishops street gang from June 1981 to September 1981, when he quit because the Bishops began to engage in "heavy fighting." He stated that the Ambros street gang was the Bishops street gang's rival, but that when he was shot he was no longer a member of the Bishops street gang.
On cross-examination Garcia testified that prior to the shooting he and defendant had never had an argument, that they passed each other on the street and that Garcia never paid defendant any attention. Garcia testified that on the day he was shot he had no ill feelings towards defendant, that there was no grudge between them, that defendant had no reason to shoot him and that he did not know why he had been shot.
Cruz testified in his own behalf. He stated that he had seen Garcia in the neighborhood and there were no ill feelings between them. Cruz testified further that he was not near Juarez High School on January 14, 1982, and that he was not the person who shot Garcia on that date.
On cross-examination Cruz stated that he joined the Ambros street gang in 1976, quit the Ambros in 1978 and did not join another gang. Thereupon, the prosecutor moved to admit into evidence and present to the jury a documentary film "Street Wars," made in September or October of 1981, at least three or four months before Garcia was shot. A Chicago television crew made the documentary film on street gangs for public television and in the film, inter alia, the defendant discussed gang activity with Chicago police officer Erasmo Rodriguez. The prosecutor offered the film to prove that Cruz was an active Ambros gang member at the time the film was made, which was irrelevant to whether Cruz was a member of a gang three months later when Garcia was shot. Cruz admitted talking to the film crew, but denied both that he was a member of the Ambros street gang at that time and he also denied that he told the film crew that he was a gang member at that time.
We note that the defendant's direct testimony was that previous to January 1982, in his younger life, he was a member of the Ambros street gang. We further note that the prosecutor established on cross-examination of the defendant that he quit the Ambros street gang in 1978. The prosecutor concedes that the documentary street gang film was made in September or October 1981. Garcia was shot on January 14, 1982. Thus, the prosecutor did not contend and could not have contended that the film was offered to or would establish that the defendant belonged to the Ambros street gang on the date that Garcia was shot.
The trial court conducted a hearing out of the jury's presence to determine the admissibility of the film. The film was viewed by the court and counsel, also out of the presence of the jury. Thereafter, defense counsel stated his additional objections to the film's admissibility as follows:
"Your Honor, I would have objections to it being played. There are other individuals in the tape. There are other people saying things at the same exact time. There is [ sic ] times in the tape when the camera moves away from Victor Cruz and people are talking and you don't know who is saying what. There are three or four people talking at the same time.
I think the whole tape is highly prejudicial, and its prejudicial effect on this jury far outweighs any probative value. . . .
I think showing the defendant is highly prejudicial to this jury. It takes away from the issue of who was the shooter. It introduces other individuals into the case that are on the tape, and we don't know . . . who is saying what on that tape and a lot of things are said in relation to other cases about somebody else being shot or stabbed and it has nothing to do with this case, Your Honor."
"I propose that the Assistant State's Attorney sit by the camera or by the TV set and when I say cut, whoever it is, whether it is you, Ms. Trafelet or you, Mr. Adair, you cut it. I'll allow the first portion in where the defendant is one of those speaking and the last portion, again where the defendant is speaking. I don't want the close-ups of the injuries of the one guy that said he was shot with a 30.06.
Thereupon, portions of the film were shown to the jury. Thereafter the following colloquy occurred:
": With reference to the playing of the tape, it was my understanding that only one portion of the tape was going to be played and it appears more than that portion was played.
It sounded to me, and I heard the beginning, the title was played again and it went into the words gang wars, the introduction. My objection was to that being played and I thought your Honor had sustained the objection and said only the portion of the conversations that the boys were having out on the street were going to be played.
And then in the second part that was played was turned on prematurely, also because Officer Calabrese came on talking about people using guns and having guns and using them.
Based on extra portions of the tape coming in I think again it is highly prejudicial, and I think based on the jury hearing that, especially the portion with Officer Calabrese talking about these gang members using guns, I think that inference is now in the record that he is talking ...