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March 3, 1994



Petition for Leave to Appeal Denied June 2, 1994.

Johnson, Hoffman, Theis

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Charles Gossitt, was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par 9(a)(1)), and sentenced to a 25-year term in the Illinois Department of Corrections.

On appeal, defendant contends (1) he was denied due process as the evidence presented against him was coerced in violation of the fifth amendment; (2) the testimony and comments relating to his gang membership were improper as such membership bore no relationship to the crime charged; (3) the State's failure to substantiate its inquires of a witness denied him due process; (4) the trial court displayed hostility toward defense counsel; and (5) the State was allowed to impeach him with prior statements which were not materially inconsistent with his testimony at trial.

We affirm.

The following pertinent facts were adduced at trial. On April 30, 1991, defendant, a member of the four corner hustlers street gang (hereinafter the hustlers), was involved in a fistfight over an earring with Duke, a member of the gangster disciples street gang (hereinafter the disciples). Later that day, Fred Taylor, a member of the disciples, went to the home of Horatio, a member of the hustlers, because a car he purchased from Horatio was "tagged wrong." Horatio told Taylor to return that night and he would give him another car.

At about 9 p.m., a group of 40 to 50 disciples, including Patrick Doyle, Michael Wilburn and Cheerio, went to the area of 93rd and Harper Streets in Chicago to retaliate against defendant for his previous fight with Duke. The group was unable to find defendant and most of it dispersed with the exception of Doyle, Wilburn and Cheerio.

Wilburn and Cheerio encountered several older members of the disciples and engaged them in a fistfight. After a few minutes of fighting, Doyle, Wilburn and Cheerio went to a liquor store to buy some beer. They then went to 93rd and Paxton Streets where they talked and drank the beer.

As they talked, Doyle and Wilburn saw Fred Taylor driving down the street, flagged him down and got in the car with him. As Taylor drove toward Horatio's house to return the car, Wilburn saw a group of boys in the alley behind defendant's house. The group included defendant, Horatio and Alexis Walker. As they drove by, defendant and Horatio pointed at the car.

When the car approached 93rd and Blackstone Streets, a shot was fired and Taylor slumped over the steering wheel. Three or fourmore shots were fired and Doyle reached over to the driver's side of the car and pressed the accelerator with his hand while Wilburn steered. They drove to 93rd Street and Stony Island Avenue and realized that Taylor had been shot in the left side of the head. The police were summoned and Taylor was taken to Christ Hospital where he later died.

On May 2, 1991, Steve McDonald, a member of defendant's gang, was interviewed by assistant State's Attorney Daniel Lynch. McDonald stated that as he stood outside his home on the night of April 30, 1991, his brother told him that someone had been shot. Defendant then approached McDonald and his brother and they asked him what had happened. Defendant responded: "I tried to blow their heads off."

Several days later Alexis Walker, another member of defendant's gang, testified before the grand jury. On the night in question, Walker stated that he was standing in an alley with Alphonso Payne and Steve and Tony McDonald near 93rd and Blackstone Streets. They saw Fred Taylor's car go by and Payne asked defendant if he had "it." Defendant then passed a small black gun to Payne, who passed it back to defendant. The group began to run. As they ran, Walker heard three shots.

Walker testified that, about 20 minutes later, defendant stated he thought he shot Taylor in the head. Defendant explained to Walker that he shot toward the front of the car "so the bullet [would] catch up with the car.

At the Conclusion of trial, defendant was convicted of first degree murder and sentenced to 25 years in the Illinois Department of Corrections. He appeals.

Initially, defendant opines that the trial court improperly forced two witnesses to testify after ruling that they could not invoke the fifth amendment privilege against self-incrimination. Defendant contends that his conviction should be reversed as Steve McDonald and Alexis Walker should have been able to invoke the privilege at trial because their prior testimony was coerced and because they feared they would perjure themselves if they testified truthfully.

Detective Michael O'Connor testified that a few days after the killing he went to the home of Alexis Walker to ask him questions about the crime. Walker, however, was not at home and the detective left his business card and requested that Walker telephone him. Walker later contacted the detective and was brought to the police station for questioning. Detective O'Connor stated that Walker was never charged with a crime, was never in custody, and was never threatened.

Assistant State's Attorney Paul Sabin testified that he presentedWalker to the grand jury. Sabin read Walker's grand jury testimony into the record. This testimony demonstrated that defendant told Walker he saw the victim driving his car down the street and that he "shot in front of the car so the bullet [would] catch up with the car." At no time did Walker decline to talk to Sabin or to appear before the grand jury. Further, Walker never told Sabin of any threats or mistreatment by police.

At trial, Alexis Walker attempted to assert his fifth amendment privilege against self-incrimination explaining that he lied to the grand jury because the police threatened to incarcerate him. He feared that his truthful testimony at trial would expose him to a perjury charge and he took the fifth amendment. After hearing both sides, the trial Judge ruled that Walker did not have a valid fifth amendment privilege to invoke because his testimony was not incriminating. Walker later testified and specifically denied the information he told the police, the assistant State's Attorney and the grand jury which implicated defendant in the killing.

Assistant State's Attorney Lynch read Steve McDonald's grand jury testimony into the record. This testimony established that while McDonald stood outside his home on the night of the killing, he had a conversation with defendant. Observing an ambulance and policemen in the area, McDonald asked defendant what had happened and defendant replied: "I tried to blow their heads off.

Lynch also identified McDonald's statement to the police as the one McDonald acknowledged as his at the grand jury hearing. This statement contained the same facts as elicited in McDonald's grand jury testimony.

After the trial court ruled that McDonald did not have a valid fifth amendment privilege, he testified and denied all of the statements he made incriminating defendant. He explained that he was forced to lie to both the police and the grand jury because the police threatened to charge him as an accessory to murder.

Presently, defendant attempts to dismiss all of the above consistent prior sworn statements provided by these two witnesses, contending that they are coerced lies. Defendant further argues that a witness's fear of perjury is a valid basis for the invocation of the fifth amendment privilege.

This court has formerly addressed this issue within the context of a defendant's claim at trial that his prior statements to police, an assistant State's Attorney and the grand jury were all untrue finding that:

" defendant should not be able to cloak himself in the fifth amendment privilege on the basis that he fears prosecution for having 'lied' when he, himself, by means of a blanket, flat-footeddenial converts that prior, consistent, substantiated testimony into 'lies.' This is particularly so where the possible motivation for such a denial is so nicely served by the assertion of the [fifth amendment] privilege." People v. Cooper (1990), 202 Ill. App. 3d 336, 344, 559 N.E.2d 942.

Walker and McDonald each recounted their stories three times. They spoke to the police, the assistant State's Attorney and the grand jury. The information they provided, of their own volition, was consistent with the police investigation into the killing. We believe Cooper is applicable to this case and find that Walker and McDonald's claims that they "lied" effectively repudiating the congruous, corroborated statements they previously told police, the assistant State's Attorney and the grand jury cannot be negated by asserting the fifth amendment protection.

Next, defendant maintains that his gang membership was improperly introduced into evidence as the State failed to show that this membership was related to the crime for which he was on trial. We disagree.

Evidence of gang membership is admissible if it is relevant to the issues in the case. ( People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.) If the evidence is relevant, it is admissible despite prejudice to a defendant resulting from the disclosure. ( People v. Deacon (1985), 130 Ill. App. 3d 280, 473 N.E.2d 1354.) Generally, evidence concerning a defendant's gang affiliation is admissible to show a common purpose or design or to provide a motive for an otherwise inexplicable act. Hairston, 46 Ill. 2d at 372.

The evidence adduced at trial indicated that on the afternoon prior to the victim's murder, defendant, a member of the hustlers, fought with a member of a rival gang, the disciples. One of the disciples felt that the fight was unfair and enlisted the help of other members of the gang to return to the area of the fight.

That evening, 40 to 50 members of the disciples returned to the area looking for defendant but were unable to find him. Several members of this group of disciples then fought with some older members of the hustlers. Shortly thereafter, defendant and other members of the hustlers saw the victim and two disciples driving down the street in the area where defendant lived. As the victim drove down the street, defendant ran after the car and shot and killed him.

Absent the foregoing evidence of gang rivalry and the evidence of the circumstances preceding the killing, specifically, the disciples' intention to retaliate against defendant, there would have been no explanation or motive for the killing. We conclude that this evidence was accordingly relevant to the charges filed and was properly admitted by the trial court.

Next, defendant argues that the State improperly failed to perfect the impeachment of a witness. On direct examination, Jacqueline Whatley, who resides on Harper Street near the area of the killing, stated that she saw defendant running on the ...

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