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09/08/89 the People of the State of v. Freddie Gonzalez

September 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FREDDIE GONZALEZ, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. ROBERT

v.

BOHARIC, JUDGE, PRESIDING. APPELLATE JUDGES:



Before the trial began, the defendant made an oral motion in limine requesting that the State be prohibited from introducing any testimony that the defendant was in any way affiliated with a gang and that any testimony regarding the police photo books used to identify the defendant exclude any reference to the Spanish Cobras gang. The Judge held that he would allow testimony regarding the defendant's gang membership for the limited purpose of showing the procedure and circumstances leading to his identification.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

544 N.E.2d 1044, 188 Ill. App. 3d 559, 136 Ill. Dec. 269 1989.IL.1405

PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA, J., concurs. JUSTICE QUINLAN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

The defendant, Freddie Gonzalez, was found guilty by a jury of armed robbery and aggravated battery; and he was sentenced to imprisonment for 4 1/2 years. No issue is made of the sufficiency of the evidence. The case against the defendant was based on his identification by the complainant, Jose Asia, and statements the defendant made to the police.

Asia testified that on September 4, 1986, at about 1:20 p.m. he went home from school. After spending a little time there, he went to the home of his friend Kenneth Siaz at 2321 N. Albany in Chicago. Siaz had a new racing bicycle worth about $200 which he allowed Asia to borrow.

Asia took the bicycle for a ride around the neighborhood at approximately 2:30 p.m. As he was riding in the street through the 3100 block of West Belden, he saw a group of 8 to 10 boys standing on the sidewalk in front of a burned-down building. He knew only one of the boys standing there, and his name was Pony Boy. Asia had lived in the neighborhood for five years before moving out the previous year. He continued to visit everyday and previously had seen a group of individuals in front of the burned-down building who "represented" that they were members of the Spanish Cobras gang. They would so "represent" by yelling out their gang name and making a hand signal like a "C." On the day of the robbery the burned-down building had an "SC" with pitchforks written on it. That symbol meant Spanish Cobras to him.

After riding by the building, Asia's friend Danny stopped him. Asia was about three houses away with his back to the burned-down building. He talked with Danny for five minutes, and Danny left. As Asia was about to leave, a man he later identified as the defendant came up behind him and grabbed the bicycle's handlebars. Asia was still sitting on the bicycle. He said that the defendant was "with the guys in the group behind" him, but he could not say for sure where the defendant had come from, because he had his back to the defendant when he grabbed the handlebars.

He had never seen the defendant before that day, and after the defendant grabbed the handlebars they were face to face and roughly two feet apart. He made an in-court identification of the defendant. He told the defendant it was his friend's bicycle. The defendant threatened that if Asia did not give him the bicycle he was going to hit him. Asia would not give it to him, and the defendant struck him with his clenched fist in the face below his left eye. Asia remained on the bicycle, and the defendant hit him a second time in the forehead. After receiving the second blow, Asia released his grip on the handlebars, and the defendant rode off on the bicycle down Belden.

Asia returned to Kenneth Siaz's house and called the police. When Officer Leo Velez arrived, Asia gave him the physical description for a male Puerto Rican and a description of his clothing. He told Velez that he thought the robber was a Spanish Cobra. The next day Asia went to the police station and met with Officer Noon. He looked at about 75 photographs of young men in a book. The book contained photos of blacks as well as whites; however, the majority of the individuals were Hispanic. He picked out the defendant's photograph from the book. He did not know whether the defendant belonged to a gang. He acknowledged that he did not give Officer Velez the defendant's eye color because he could not tell what color they were. The entire incident with the defendant lasted a minute. He did not identify the defendant from a lineup; instead, the next time he saw the defendant was at a preliminary hearing after the defendant had been arrested. He identified him at that time.

Officer Noon testified that he observed a bump on Asia's forehead. He gave Asia two Chicago police department photo albums which contained photographs of "self-admitted Spanish Cobra gang members." The court sustained the objection of the defendant and instructed the jury as follows:

"With respect to the last answer, ladies and gentlemen, that these two books contain that of self-admitted Spanish Cobras, the comment of self-admitted is hereby stricken from the record as irrelevant and the defense objection to that is hereby sustained. I must remind you once again, ladies and gentlemen, this testimony concerning the gang membership, the Spanish Cobras, of the defendant is admissible in evidence solely or only to show the circumstances and the procedures that were used in the identification of the defendant in this case."

Noon further testified that on September 11, 1986, after looking for the defendant for a few days, he and his partner Officer John Guzman saw him at 3800 West Leland with one or two other white Hispanic males. As the officers approached, the defendant asked, "If [they were] looking for [him] for that robbery where [he] took the kid's bike." At that point Noon placed the defendant under arrest and took him to Area 5 headquarters.

Noon questioned the defendant alone after giving him his Miranda warnings for a second time. The defendant told him he was on Belden Street when he saw a "guy" on a new bicycle. He went up to the person and told him to get off the bike. The person did not want to get off the bike so the defendant forced him off. He then got on the bike and rode off with it. Noon asked the defendant where the bike was, and the defendant replied that he kept it for a day and then gave it to a person named Gunner, a member of the Simon City Royals gang. The defendant denied hitting Asia. The police were unable to recover the bicycle.

On cross-examination, Noon testified that he and his partner did not have time to say anything to the defendant before he made the statement asking if they were looking for him for the robbery where he took the "kid's bike." Noon typed out a supplemental police report after questioning the defendant which included the defendant's statement that he had taken the bike, did not hit the person from whom he had taken the bike and that he gave the bike to a Simon City Royal gang member named Gunner.

The defendant's evidence consisted, in part, of a stipulation to the testimony of an official court reporter who was present at the defendant's preliminary hearing at which Asia was asked if it took the defendant five minutes to tell him to get off the bike and he answered, "or ten [minutes] or so."

Officer Leo Velez testified for the defense that he met with Asia at approximately 3 p.m. He did not think that Asia provided him with the hair or eye color of the person who robbed him. Velez marked in his report that the hair and eye color were unknown. On cross-examination, he testified that Asia was "hysterical, all shook up." Asia was able to provide a description of the robber's clothes and gave his age, height and weight.

The defendant first contends that the trial court erred in denying his motion in limine and allowing the State to introduce testimony of the defendant's gang affiliation with the Spanish Cobras.

The supreme court has spoken on the admissibility of evidence showing a defendant's affiliation with a gang:

"To prevent the conviction of one accused of a crime merely because of his membership in an organization that is unpopular, it is the thrust of [ United States v.] Rosenberg that proof of membership is admissible only if there is also sufficient proof to show that membership is related to the crime charged, for example, to show common design or purpose." People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840.

We cite People v. Hairston as the expression by the highest court of this State of the applicable principle of law governing admissibility of evidence of gang affiliation. By no means do we say or imply that Hairston is factually apposite here. We recognize that the supreme court affirmed the conviction holding that the evidence of gang affiliation in that case met the court's standard.

The potential for prejudice in the admission of such evidence has been recognized in People v. Parrott (1976), 40 Ill. ...


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