The opinion of the court was delivered by: Harrison
JUSTICE HARRISON delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Jose Colon, was found guilty of first degree murder. He was subsequently sentenced to 50 years in the Illinois Department of Corrections. The appellate court reversed the judgment of the circuit court (249 Ill. App. 3d 141), with one Justice Dissenting, and we granted the State leave to appeal pursuant to Supreme Court Rule 315 (134 Ill. 2d R. 315). The State relies upon four points for reversal of the appellate court's decision: (1) that evidence concerning defendant's gang membership and certain facts relating to gang activities was properly admitted to prove that the crime was gang motivated, (2) that evidence introduced concerning a second shooting was properly admitted to prove that the crime was gang motivated, (3) that an instruction to the jury that defendant had made a statement "relating to the offense" was properly admitted, and (4) that evidence indicating that two individuals viewed a lineup was not hearsay. For the reasons which follow, we reverse.
The evidence, when viewed in the light most favorable to the State, showed that on September 3, 1990, at approximately 11:30 p.m., Rafael Matamoros and some friends were gathered around a car. These friends included Daniel Rivera, Deandre Jackson, Nathan Iverson, Marvin King and Miguel (last name unknown). The car was owned by Daniel Rivera. The car was parked on Hirsch Street in front of Lowell Grammar School. Hirsch Street is a one-way street eastbound. Lowell School is located between Homan, a north-south street that is to the west of the school, and Spaulding which is to the east. At the time of the incident the victim, Rafael Matamoros, was seated on the hood of the car, Rivera was seated on the driver's side fender, Jackson wasseated on the car's front bumper and Iverson was by the front end on the driver's side. The record does not indicate where the other individuals were in relation to the car.
Rivera testified that he saw a car coming slowly down Hirsch Street. He described the car as gray with a light-blue top, four doors and tinted windows. Rivera indicated that the car stopped right next to his. Rivera stated that he saw an individual, which he later identified in direct testimony as the defendant, look out of the driver's window. He was able to see the individual's face for approximately 10 seconds. Rivera then saw a hand holding a gun protrude from the driver's window followed shortly by a flash. Rivera ducked and ran approximately 10 or 15 feet. Multiple shots were fired. After the shots were fired, Rivera saw the car go east to the corner and then turn left onto Spaulding.
Deandre Jackson testified that he first noticed the car approximately a hundred feet away as it was traveling east on Hirsch Street. Jackson indicated that the car stopped within three feet of Rivera's car. He described the car as gray with a blue top and tinted windows. Jackson stated that he saw an individual, whom he later identified in open court as the defendant, in the driver's seat of the car for four to five seconds. Jackson jumped to the ground when the shooting began. He remained on the ground until the shooting was over. He then observed the car traveling down Hirsch Street and turn left onto Spaulding.
Nathan Iverson testified that he first saw the car when it was within three to five feet of him. His description of the car was similar to that of Jackson and Rivera He did not identify anyone as the individual who fired the gun.
Edwin Lopez testified that he was walking south on Homan Avenue toward Hirsch Street at approximately midnight on September 3, 1990. Lopez indicated thatthere are three streets between North Avenue and Hirsch Street: Pierce, LeMoyne and Beach. Lopez stated that he was located between Pierce and LeMoyne when he heard six gunshots. Approximately 15 to 30 seconds later, Lopez arrived at the corner of Homan and LeMoyne. He observed a car traveling west on LeMoyne. Lopez described the car as "bluish, grayish car, four-door, and blue top."
Two of the men gathered around Rivera's car had been shot. The victim, Rafael Matamoros, had been shot once in the back and once in the right foot. Nathan Iverson was shot once in the right leg and twice in the left leg. Rivera and Jackson took Matamoros to the Norwegian-American Hospital. Matamoros died at the hospital that evening.
Officer William Watts of the Chicago police department spoke to Daniel Rivera and Nathan Iverson at Norwegian-American Hospital. He testified that Daniel Rivera described the shooter as a male, white Hispanic approximately 18 years old. Nathan Iverson agreed with Rivera's description. Deandre Jackson was unable to give a description of the shooter or identify the race of the shooter. Rivera testified that he and a group of his friends who had come to visit Matamoros were shot at when leaving the hospital.
Officer Thomas Finnelly, a gang specialist with the Chicago police department, was assigned to investigate the murder of Rafael Matamoros. On September 5, 1990, at approximately 12:30 p.m., Officer Finnelly was driving an unmarked police car westbound on Courtland Avenue. He observed a car matching the description of the car used in the shooting. He followed the car until it pulled over and parked. An individual, later identified as the defendant, stepped out of the car and spoke to Officer Finnelly. Officer Finnelly testified that the defendant told him he was a former ImperialGangster. The defendant then voluntarily accompanied Officer Finnelly to Area 5 headquarters.
The defendant was placed in a lineup. Daniel Rivera and Deandre Jackson viewed the lineup separately. Both witnesses identified the defendant as the individual in the driver's seat of the car used in the shooting. Daniel Rivera and Deandre Jackson also identified a photo of defendant's car as the car used in the shooting on September 3, 1990.
Defendant Jose Colon was charged with the murder of Rafael Matamoros and the attempted murder of Nathan Iverson, both resulting from the shooting incident of September 3, 1990. At an earlier trial a jury found the defendant not guilty of attempted murder but was unable to reach a verdict as to the murder charge. At his second trial, the defendant was found guilty of murder and sentenced to 50 years' imprisonment. The appellate court reversed the trial court's conviction and remanded for a new trial.
As grounds for reversing the appellate court, the State first argues that the circuit court did not err in admitting evidence of gang motive. According to the State, such evidence was admissible because the evidence provided a motive for an otherwise inexplicable act. ( People v. Smith (1990), 141 Ill. 2d 40, 58, 152 Ill. Dec. 218, 565 N.E.2d 900.) The gang-related evidence admitted at trial here was that Daniel Rivera, Deandre Jackson, Marvin King, Nathan Iverson and Edwin Lopez are all members of the Latin Kings street gang. However, the victim, Rafael Matamoros, was not a gang member. Officer Dombkowski testified that on September 2, 1990, the day before the shooting, he had a conversation with defendant Jose Colon. The defendant told Officer Dombkowski that he was a member of the Imperial Gangsters street gang. Officer Finnelly testified that on September 5, 1990, the defendant told him he was a former Imperial Gangster.
Officer Finnelly and Daniel Rivera both testified that Lowell School was in the Latin Kings' territory. Officer Finnelly testified that the defendant informed the officers that he lived in the 900 block of North Sacramento. Officer Finnelly and Daniel Rivera both testified that 911 North Sacramento was in the Imperial Gangsters' territory. Officer Finnelly, Rivera and Lopez all testified that Norwegian-American Hospital is located in the Dragons' street gang territory. The same three witnesses stated that there are two principal gang organizations in existence; the "People" and the "Folks." All three also testified that the Latin Kings are affiliated with the "People," and the Imperial Gangsters and Dragons are affiliated with the "Folks." Daniel Rivera testified that the "People" and the "Folks" do not get along. Edwin Lopez testified that the "People" and the "Folks" are "in opposition."
The above testimony was clearly relevant to establish that the motive for the shooting was generally one of gang rivalry. In People v. Gonzalez (1991), 142 Ill. 2d 481, 489-90, 154 Ill. Dec. 643, 568 N.E.2d 864, this court held that a trial court's decision to admit gang evidence will not be overturned on appeal unless a clear abuse of discretion is shown. Here, the trial court entertained a motion in limine by the defense to exclude the gang-related evidence. The trial court heard arguments from both the State and the defense. The court subsequently denied the motion. Given the facts presented in this case, we cannot say the trial court abused its discretion.
Applying the same principles to the evidence introduced concerning the second shooting outside Norwegian-American Hospital, we hold that the evidence was insufficient to prove that the second shooting was gang-related. The trial court allowed evidence concerning the second shooting on a limited basis. The trial court held that the evidence was only admissible toestablish the gang territory that Norwegian-American Hospital was in. Daniel Rivera testified that he and his friends were shot at while they were leaving the hospital. As previously noted, State witnesses Rivera, Lopez and Officer Finnelly testified that the hospital was in Dragon territory. Officer Finnelly testified that Dragons and Imperial Gangsters are allied with the "Folks" organization and the Latin Kings are allied with the "People" organization. Finnelly further testified that the "Folks" and the "People" are "in opposition."
The State argues that the evidence of the second shooting was admissible because it was offered in furtherance of the gang-motivation theory and illustrated the territorial nature of gang warfare. We disagree. Applying Smith, 141 Ill. 2d 40, to the present case, we find that the State failed to show even to a slight degree that the second shooting was gang-related. It is undisputed that the shooter at the hospital was unknown. The evidence only showed that those being shot at were Latin King gang members. The mere fact that those individuals shot at were members of a gang that is in conflict with the gang whose territory surrounds Norwegian-American Hospital is not relevant. No evidence was introduced to show that the shooters were members of a gang. This evidence without more does not indicate that the second shooting was gang-related and was therefore improperly admitted.
Although the evidence concerning the second shooting was improperly admitted, we find that it does not warrant reversal of the circuit court's judgment. Witnesses Rivera, Jackson and Iverson all testified that the shots fired at Matamoros were fired from a four-door, gray car with a blue top and tinted windows. Rivera and Jackson also testified that the defendant was seated in the driver's side at that time. Edwin Lopeztestified that he heard six shots 15 to 20 seconds before seeing a four-door, gray car with a blue top speeding west on LeMoyne Avenue. The car was headed toward Central Park. Evidence was introduced that designated Central Park as Imperial Gangster territory. Defendant was arrested on September 5, 1990, while driving a car matching the description of the car used in the shooting. The same day, witnesses Rivera and Jackson separately identified the defendant in lineups. Rivera also identified the defendant's car in the parking lot as the car used in the drive-by shooting on September 3, 1990.
This court in People v. Easley (1992), 148 Ill. 2d 281, 330, 170 Ill. Dec. 356, 592 N.E.2d 1036, held that the erroneous admission at trial of the gang evidence does not automatically warrant reversal. However, it has long been held that a reviewing court will not hold that an error is harmless unless the court is satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. ( People v. Coleman (1989), 129 Ill. 2d 321, 341, 135 Ill. Dec. 834, 544 N.E.2d 330.) In light of the overwhelming evidence implicating the defendant, we find the evidence concerning the second shooting was harmless.
Next the State argues that the trial court did not err in giving Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (3d ed. 1992). ...