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February 22, 1994


Appeal from the Circuit Court of Cook County. Honorable John J. Mannion, Judge Presiding.

Rehearing Denied March 23, 1994. Released for Publication April 19, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Hartman, McCORMICK, Scariano

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

A jury found defendant, Edgar Goldsberry, guilty of second degree murder but not guilty of attempted murder. The charges arose from his shooting of Nathan Taylor, who died as a result of his wounds. Defendant was sentenced to a 14-year term in custody of the Illinois Department of Corrections. On appeal, defendant argues that the court erred in denying his motion in limine to exclude notebooks which were in his possession on the night of the shooting, purporting to show that he was a member of the High Class Gangsters, a Chicago street gang; the State did not bear its burden of proving him guilty of second degree murder beyond a reasonable doubt; and the 14-year sentence was excessive. For reasons which follow, we reverse and remand for a new trial.

At trial, the State first called Runno Thames. He testified that on the night in question, around 7 p.m., he and a group of friends walked together toward Academy of Our Lady school in the 9500 block of Throop Street on the city's southside. At the school, Thames saw two students exiting the building staring at him. One, who Thames identified as defendant in a line-up held the evening of the shooting and for the record at trial, carried a "Gucci" leather portfolio. Thames' companion, decedent Nathan Taylor, inquired as to why defendant continued to stare at them. He received no response. Taylor suggested that defendant must therefore know them, to which defendant manifested agreement by silently nodding his head. Thereafter, Thames saw defendant reach into his portfolio, withdraw a .38 caliber revolver, and shoot Taylor. The bullet entered Taylor's chest cavity, lacerated his heart and a lung, and proved fatal. Thames then ran from the scene of the shooting, and heard further gunshots after departing. When police arrived at the scene, Thames returned and informed them of what had happened. He also gave them a notebook which fell out of defendant's portfolio when he withdrew the pistol.

On cross-examination, Thames admitted he had a prior conviction for misdemeanor theft. He knew that the victim, Taylor, was a member of the Vice Lords street gang. Before he graduated from high school, he too was a Vice Lord; on the evening of the shooting, however, he no longer was a member and had not been for some time. He denied that he or anyone else attempted to steal jewelry from defendant, or to take his jacket. Thames claimed that defendant fired without any provocation; no one had physically touched him. The closest person to defendant was decedent Taylor, who was an arm's length from defendant when he opened fire.

The State's next witness was Stacy Miller, who corroborated much of Thames' testimony. At the time of the shooting, he was running to catch up to Taylor and Thames, after stopping to speak to an acquaintance. At the scene, he could not clearly identify the shooter but recalled that he carried a portfolio. After firing at Taylor, the shooter aimed in his direction. Miller ran in the opposite direction and, soon thereafter, he was told that he had been shot in the groin area. On cross-examination, Miller admitted he was Thames' cousin and was acquainted with some members of the Vice Lords, including Thames. He denied that at the time of the shooting, defendant was being assaulted.

Chicago police officer Stanley Johnson testified for the State. He arrived at the scene of the crime, called for medical assistance for Taylor, and recovered the notebook that Thames indicated had fallen from the perpetrator's bag. Detective David Friel testified that he found defendant's name on its inside cover. After learning of his address from school officials, Friel proceeded to his home where defendant lived with his mother. There he found a Gucci portfolio lying on the bed in defendant's room along with another notebook, which, like the one found on the scene, contained drawings and poems admittedly penned by defendant. These notebooks had been the subject of defendant's motion in limine, where he maintained that they had no probative value, but would only be used by the State to incite the jury's passion. The court denied defendant's motion in limine. The State offered the notebooks into evidence. Defendant reasserted his earlier objection, which was again overruled, and he moved for a mistrial which was also denied.

Thomas McMahon, a Chicago police officer with 12 years' experience as a gang-crimes specialist, was qualified as an expert. He explained the significance of the writings and drawings in the notebook. In his opinion, the drawings manifested disrespect toward the Vice Lords. The poems were generally consistent with membership in the High Class Gangsters, bitter enemies of the Vice Lords. On cross-examination, McMahon admitted he could not say that the events depicted in the poems he interpreted actually occurred, or were merely the figment of a creative mind. The area around 95th and Throop was within Vice Lord-controlled territory.

The State's final witness was Tommy West. On the night of the shooting, he had parked his automobile across the street from Academy of Our Lady while waiting for his son to emerge from the school. He observed two individuals exit the school, one of whom he identified for the record as defendant who, at the time, carried a "Gucci bag." He saw the two men standing on the sidewalk near the curb, and two other men standing in the middle of the street. He watched as defendant pulled a pistol out of the portfolio and shot one of those two men in the chest. Defendant then turned and shot another man who was running up to the scene in the leg. West ordered the shooter to stop firing, whereupon defendant pointed the gun in his direction and fired a round which impacted on the dashboard of his car, narrowly missing his head. While West hid behind seats in the car, he observed defendant approach and fire another shot toward him. Police technicians discovered a bullet in the dashboard of West's auto. A photo of West's windshield, which showed that it was marred by a bullethole, was received into evidence. After defendant fired the rounds in his direction, he ran down Throop Street. On cross-examination, West admitted that he was too distant from the men to hear anything they might have said to each other.

Defendant called Mark Hatcher who testified that on the night of the incident he observed six youths wearing hats turned to the left walk down Throop Street toward the Academy of Our Lady. They all brandished sticks and, as they walked, Hatcher overheard them speak of "getting someone from the school." He paid little attention to the rest of their conversation. Later, he heard shots ring out.

Defendant then took the stand in his own defense. He admitted that when he was younger, he was a gang member, but that his mother sent him to Georgia in order to remove him from the gang environment of his neighborhood. Since his return from Georgia in 1987 he had not rejoined the gang, but he was a student attempting to finish high school. He enjoyed listening to rap music and viewed himself as a rap artist. He wrote lyrics constantly. The lyrics in his notebook, which officer McMahon suggested tended to show his gang membership were, in fact, written in the vein of gangster rap because that is the most marketable type of rap music. The drawings in the notebooks were also intended to convey the hard, ghetto life, like his music.

On February 14, 1989, after finishing class at Academy of Our Lady, defendant went to a near-by restaurant for dinner and he saw a group of teens assault an individual outside the restaurant. The victim broke away, entered the restaurant, and vaulted the counter. Several teens entered the restaurant and told defendant that they wanted his jacket and jewelry, but left the store after an employee called police. Defendant spoke to the police, drove home and played basketball. He later told a friend what had occurred. The friend gave him a pistol for his protection, ...

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