Appeal from the Circuit Court of Cook County. Honorable Christy Berkos, Judge Presiding.
Rehearing Denied December 3, 1996. Released for Publication December 10, 1996.
Presiding Justice McNULTY delivered the opinion of the court. Gordon and Hourihane, JJ., concur.
The opinion of the court was delivered by: Mcnulty
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Defendant, Thaddeus Jimenez, appeals from his conviction and sentence on the charge of first degree murder. We reverse and remand for a new trial because the trial court refused to ask prospective jurors any question concerning the effect defendant's gang affiliation might have on their ability to give him a fair trial.
Around 6 p.m. on February 3, 1993, Larry Tueffel and Eric Morro encountered Victor Romo and another boy on a city sidewalk. Several witnesses on the street saw the boy with Romo kill Morro by shooting him point-blank in the chest. One of the witnesses called police about six hours later and named defendant as the shooter. Based on the telephone call, police arrested defendant before dawn on February 4, 1993. Three witnesses viewed a lineup at the police station. Two identified defendant as the shooter; the third witness said both defendant and another person in the lineup looked like the shooter.
Prior to trial defendant moved to preclude reference to gang affiliation. The court denied the motion, finding that the prosecution had sufficient evidence that gang affiliation provided the motive for the murder. Defendant then sought to have the court ask each member of the venire, on voir dire:
"Would the fact that an accused is allegedly a member of a street gang, prevent you from giving him a fair and impartial trial?"
Defendant also requested two other questions, one relating to handguns and the other relating to publicity concerning gang-related murders. The court said, "We are just going to be here for days going into these things." The court refused all three questions, and it asked the venire no questions remotely suggesting that gang evidence would be part of the case.
At trial Shawn Cosmen testified that around 3:30 p.m. on February 3, 1993, he and Morro saw defendant yelling towards a school bus and making hand signs indicating his affiliation with the Royals gang. Morro told defendant to "take his gang banging stuff somewhere else" because kids were nearby. Defendant answered: "You'll get your ass beat. *** You'll get yours."
Tueffel testified that when he and Morro encountered defendant and Romo around 6 p.m. that day, Romo accused Morro of owing Leo some money. Morro said it was none of Romo's business. Romo and defendant walked a few steps away, then returned. Romo pushed Morro against a wall. Morro swung his fist, then defendant shot Morro. After shooting Morro, defendant threw up the hand sign for the Royals gang.
Tueffel admitted that the first time he spoke with police he said Frankie, not defendant, shot Morro. He also gave a description that did not fit defendant. Tueffel explained that he was also a member of the Royals, and he feared retaliation if he identified defendant.
The officer who took Tueffel's initial description of the shooter testified that the description was vague and Tueffel acted evasively, changing some parts of the description as he spoke. The prosecutor asked for the officer's opinion "as to the truthfulness" of Tueffel's initial description of the shooter. The court allowed the officer to answer, over defendant's objection, that he did not believe Tueffel had told him the truth about what he saw.
Defendant's sister, Angela Jimenez, and three friends of his family testified that they saw defendant at a family party from 4:30 p.m. ...