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January 29, 1996



The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

On September 27, 1992, Juan Garcia was brought into the emergency room of Christ Hospital. He had been shot in the head. The bullet had entered his right temple, passed through his brain, and lodged under his skin over the left temple. He was in a coma. Surgery was performed immediately. He survived and eventually testified at the jury trial of Wilfredo Rivera, the man accused of being legally responsible for shooting him.

Rivera was found guilty of aggravated battery with a firearm. He was sentenced to 10 years in the Illinois Department of Corrections. He raises several issues in support of his contention that he did not receive a fair trial.

We find the jury heard testimony and argument that deprived the defendant of a fair trial. We reverse his conviction and remand the cause for a new trial.


Juan Garcia testified that on September 27, 1992, he was at 8812 Houston. He got shot in the head as he was getting in a car. He did not have anything in his hands at the time. When asked who shot him, Garcia did not respond. Garcia identified defendant as someone who "was out there when [he] got shot." Garcia had seen the defendant before on the street, but did not know how many times. At the time of the shooting Garcia had been a member of the Spanish Gangster Disciples for three years.

On cross-examination, Garcia said that before testifying he had been told where the defendant would be seated in the courtroom. Garcia did not remember what he was wearing when he got shot, what kind of car he was getting out of, or whether any of the assailants had glasses, beards, or mustaches. The people who shot him were six feet away. There were five of them.

James Lindsey testified on behalf of the State. Lindsey is not a member of any of the common Chicago street gangs because he had "a bunch of relatives" "in just about every gang in Chicago," and if he joined one gang he would "get in lots of trouble with the relatives." Lindsey was familiar with some of the customs of the various gangs. Lindsey identified pictures of the area in which the shooting took place. He identified graffiti on the buildings which depicted the initials S.G.D, representing Spanish Gangster Disciples, as well as an upside down crown, a sign of disrespect to the Latin Kings.

Lindsey was on the 8800 South block of Houston at approximately 1 a.m. on September 27, 1992. As Garcia was getting out of a friend's car, a group of four to five young Hispanic men approached, yelling gang signs. The men were yelling "King Love" and "DK," which stands for "Disciple killer." The men were "throwing up a crown," which means they were making a hand signal which stands for Latin Kings. The group came to the corner of 88th and Houston and started shooting. Garcia was approximately 20 - 25 feet away from the group. Defendant was one of the members of the group.

Lindsey heard five shots, all fired by the same person. Garcia was struck in the head and went down. Although defendant did not fire the shots, defendant was standing approximately one foot away from the shooter. Defendant was making hand gestures. Garcia did not have any weapons in his hands when he was getting out of the car and he did not make any threatening remarks. The group of attackers took off running west on 88th towards Commercial Avenue. Lindsey had seen defendant before the shooting. He did not know defendant by name, but recognized him by face.

At the time Garcia was shot, Lindsey said, defendant was wearing a blue and yellow checkered flannel shirt. After Garcia was shot, Lindsey and "another guy" telephoned the police.

Approximately 45 minutes later, Lindsey saw defendant again in the back seat of a marked police car. Lindsey identified defendant as one of the participants in the shooting. Defendant was wearing a different shirt.

On cross-examination, Lindsey said that when defendant was in the police car he was wearing a blue shirt, either a Duke shirt or a Georgetown shirt. Defendant was not wearing a jacket. Defendant was handcuffed to two other individuals. Lindsey did not remember what the other two individuals were wearing at the time.

At the time of the shooting, the group of individuals was standing within a foot of each other. Lindsey's attention was drawn to the shooter. The shooter had a small handgun. Lindsey saw defendant with "something small in his hand. It appeared to be a gun."

When asked if he gave a clothing description of anyone to the police that night, Lindsey said, "They weren't really questioning me about myself. I had other people with me when they were questioning us and I would say one thing. It was like someone else filled in the blank for me."

Lindsey has been known by the name of James Langley. On the night of the incident he did not give the police his last name. Juan Garcia was his friend at the time of the shooting. He still is his friend.

On redirect, Lindsey testified that at the time of the shooting defendant was wearing a black and gold flannel shirt. Black and gold are Latin King colors. On recross, Lindsey denied that he had testified on direct examination that defendant was wearing a blue and yellow shirt at the time of the shooting.

On September 27, 1992, Officer Millaun Brown was assigned to watch a crime scene at 8813 South Houston until the crime lab appeared. When the crime lab appeared, he and his partner went to 8756 South Houston to look for spent cartridges. He heard shots being fired from the east. He went about a block and a half to 87th and Escanaba.

Officer Brown saw four men. One of the men immediately fled. The remaining three, including defendant, were male Hispanics, between the age of 17 and 22. Defendant was carrying a black and gold shirt.

Officer Brown took the three men into custody. He put them into the police car and drove them back to the scene. The three men remained in the car while Officer Brown had a conversation with some citizens. Based on that conversation, Officer Brown took the arrestees to the police station and turned them over to the detectives. It was approximately 2 a.m. when Officer Brown arrested defendant. Defendant was wearing a leather jacket and a baseball cap.

Detective Winistorfer was assigned to the investigation of a shooting that occurred at 88th and Houston on September 27, 1992, at approximately 1 a.m.. At approximately 4:15 a.m., Detective Winistorfer had a conversation with the defendant. Defendant told him that he had spent the evening of September 27, 1992 at his aunt's house at 84th and Burnham. Defendant did not know the address of his aunt's house and did not know exactly what time he left, but it was between 11 p.m. and midnight. Defendant was wearing a black leather jacket with a Harley Davidson emblem, and a Bull's T-shirt. Defendant was carrying a black and yellow checkered shirt. He told Detective Winistorfer he was a Latin King.

Gun shot residue tests were taken from defendant that night. The tests were inconclusive.

The State rested.

Theresa Najera, defendant's aunt, testified that on the night of September 26th and 27th she was at the home of her sister Fabielo Fernandez. Theresa was playing cards that evening. About 30-35 members of her family were present, including defendant. Defendant was playing Nintendo in the attic with his cousins. He was wearing a white shirt and jeans. There was no emblem or writing on the shirt. Theresa and her sister Victoria left at approximately 1:35 a.m.. Defendant had left the house between 1:00 and 1:15.

Rosa Gonzales, another aunt of defendant, was at Fabielo Fernandez's house the evening of September 26, 1992. She stayed until 1:30 a.m. September 27, 1992. Approximately 40 people were in the house. Rosa saw defendant at the family gathering. Rosa last saw defendant between twelve and one. To the best of her knowledge defendant was still at the house when she left at 1:30 a.m.

Defendant testified. On September 26th and 27th he was at his aunt Fabielo Fernandez's house all evening playing Nintendo.

After a conversation with Jose Fernandez, he left his aunt's house. It was late. He did not recall the exact time he left. Defendant went to his friend Jay Flores' house, around 80th and Baker. He stayed there about an hour. Flores gave him a jacket to put on. Defendant put on the jacket and defendant and his friends started walking towards 103rd. They were walking east to get a ride. The police came and arrested him, slammed handcuffs on him, and threw him in the police car. The police took him back to a different location.

At the time defendant was stopped, he was wearing gray jeans, a white Bulls shirt, a black leather jacket, and a white and black baseball cap. Defendant was carrying Jay Flores' black and gold shirt. He was holding it for him. Jay Flores was with defendant when he was arrested. Defendant wore the same clothes the whole evening.

Defendant said that he did not have a gun in his possession that night. He did not shoot or attempt to shoot anyone that evening. He did not see anybody get shot that night. The ...

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