The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County.
Honorable Edward Fiala, Judge Presiding.
After a jury trial, defendant Dante Brown was found guilty of first degree murder and attempted murder and sentenced to concurrent terms of imprisonment of 50 years for murder and 10 years for attempted murder. Defendant claims on appeal that: (1) the statements of certain witnesses were improperly admitted under section 115-10.2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.2 (West 1996)); (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in denying his motion in limine to bar evidence of prior bad acts and defendant's gang affiliation; and (4) the prosecutor made improper comments in closing argument that denied defendant a fair trial. We reverse defendant's convictions.
Sandra Pittman, the widow of the victim, Gary Pittman, testified that in 1992 she and the victim moved to the Englewood neighborhood around 57th and Paulina in Chicago. The victim's mother lived next door to them and Jarvis McNeal lived on the other side of the victim's mother. On July 8, 1993, Sandra and the victim were at home when the victim told Sandra that he was going to his mother's house to see if she needed anything. Sandra watched from the window as the victim walked toward his mother's house on Paulina Avenue. Sandra turned from the window and entered the bathroom. She then heard gunshots. She returned to the window and heard someone say that the victim had been shot.
Sandra ran out to the street and over to a fence and grabbed the victim from a man who had been comforting him, and the victim fell to the ground. Sandra cradled the victim and he kept repeating that he had been shot and she should call an ambulance. Then the victim said "I love," closed his eyes, and died.
Sandra testified that when she returned home later that night, she learned that Jarvis McNeal had been shot in the foot during the same incident. Sandra did not see McNeal until two weeks after the victim's murder when she met him on the street. She asked him who killed her husband and he replied "Peewee." Sandra saw McNeal several more times during 1993 and she repeatedly asked him to go to the police and tell them what he knew about the shooting. Sandra testified that she was not familiar with anyone in the neighborhood named Peewee.
Sandra testified that on January 4, 1994, McNeal came to her apartment to see the train set she had gotten for her son. She asked McNeal if he had gone to the police and told them aboutPeewee. When he said that he had not, she asked him if he would now be willing to give the police this information and McNeal said that he would. McNeal told Sandra that Peewee was Dante Brown. McNeal also told her he had not gone to the police because "he was scared that the Black P-Stones would kill him." McNeal told her that he had run into the gangway next to Sandra's mother-in-law's house when the shooting began. Sandra then called the police and spoke with Detective Winstead and told him that McNeal was at her apartment and was willing to tell them who shot the victim. By the time Detective Winstead arrived at Sandra's home, McNeal had already left, saying that he would be next door, at his grandmother's house.
Sandra testified that she had spoken to the police prior to January 4, saying that she would call and tell them if McNeal gave her any information. Sandra testified that the morning after the murder, several kids were picking up 9 millimeter and .38-caliber shell casings from near the victim's mother's house. Sandra testified that she did not give these to the police because she thought they had collected enough evidence the previous night. Sandra identified several tattoos on her husband's body from autopsy photos.
Officer Leroy Horton testified that when he and his partner arrived at the crime scene, soon after the shooting, 40 to 60 people were at the scene. McNeal, who was hopping around, had blood coming from his foot and said that he had been shot, met Officer Horton. The victim was lying on the sidewalk with a gunshot wound to the chest. Officer Horton said that there had been a lot of gang activity in the area, with the Gangster Disciples and Black P-Stones being the most active. He testified that these two gangs were at war with each other in July 1993. Officer Horton asked McNeal if he knew who shot him and McNeal said that it was Peewee, a P-Stone from 57th and Winchester. McNeal told the officer that he had been standing on the corner with the victim when he noticed a blue or black, dark-colored Ford Tempo or Taurus coming eastbound on 57th Street. As the car reached the corner of 57th and Paulina, the occupants began to shoot. Peewee leaned out of the car and started shooting. The victim was hit and fell to the ground. McNeal was fleeing up the gangway when he was struck. The car went southbound on Paulina.
Detective Robert Girardi testified that after talking to several people in the area of the shooting, he learned that nobody had seen who the shooter was. Detective Girardi learned that the car from which the shots were fired did not have any plates and only one working headlight.
Detective Girardi arrived at Holy Cross Hospital shortly after 2 a.m. on July 9. He learned from the doctor that McNeal had been shot once in the right foot. He spoke with McNeal, whose foot was bandaged and who was awaiting release in the treatment area of the emergency room. McNeal told the detectives that he and the victim had come out of McNeal's house and were walking over to the victim's mother's house at 57th and Paulina. When they reached the corner, McNeal saw a dark-colored car traveling on 57th Street. The car slowed as it approached the corner and then gunfire erupted from the car. As the car turned southbound on Paulina, the gunfire was now coming from both the front and back passenger windows. McNeal ran for a gangway but was hit in the foot. He did not see any gang signals or slogans. McNeal told the detectives that he could not be sure who the shooter was, but he had an idea of whom he might be because of an incident earlier that night when a person he knew as Peewee had been driving around the neighborhood in a different car and shooting people. McNeal told the officer that he was a Gangster Disciple and that Peewee was a Black P-Stone and that the two gangs were enemies in July 1993.
Detective Girardi and his partner returned to the scene to see if they could locate any witnesses or find out Peewee's real name, but they were unsuccessful. Two or three weeks after the murder Detective Girardi spoke with Sandra Pittman on the phone, and she told him that McNeal had told her that Peewee shot the victim. Detective Girardi testified that he made several attempts to located McNeal and a person named Peewee but was unsuccessful.
Detective Edward Winstead testified that he spoke with Sandra Pittman on the telephone on January 4, 1994. She said that her husband had been shot and killed the previous July and that she had an eyewitness to the murder. Detective Winstead pulled the file and quickly familiarized himself with the facts. When he arrived at Sandra's home, McNeal had already left. Detective Winstead went to McNeal grandmother's house but was told McNeal had left. He left his card and told the grandmother to have McNeal contact him when he returned. Detective Winstead never heard from McNeal. Detective Winstead stopped by McNeal's grandmother's house again and learned that McNeal was afraid and changed his mind about coming forward. The detective checked for McNeal at his father's home and at his school, but was unable to locate him.
On March 4, 1995, after defendant was in custody, Detective Winstead went to McNeal's grandmother's house once more. He told the grandmother that defendant was in custody and that the police needed McNeal's help. A few minutes later McNeal came out and said that he would cooperate. McNeal said that he had been afraid to come forward, but since the police had defendant in custody, he would help the police.
Detective Winstead testified that, at Area One, McNeal viewed a lineup and immediately identified defendant as the person he saw shooting from the rear passenger window and who shot him. McNeal told Detective Winstead that, on the night of the shooting, he was standing with a small group of men on the corner of 57th and Paulina when the victim came out and started talking to some of the older men. McNeal saw a dark-colored car, which he thought was a Ford, parked on 57th Street, facing east. The car had only one headlight and some type of alarm. There were people in the car but it did not move. McNeal told the detective that, after a while, the car then came eastbound on 57th Street towards the group. As the car approached, a gun came out of the front window and then a man with a gun stuck his head and arms out of the front window, and this man started firing at McNeal's group. McNeal ran toward a gangway but was hit in the foot. The victim got hung up on the fence and was shot in the chest. McNeal told the detective that he had never seen the car before. He did not get a good look at the front passenger but he said that the shooter in the rear passenger seat was defendant, a person he has known for quite a while.
McNeal told Detective Winstead that when he spoke with detectives after the shooting, he told them that Peewee had done it, but he later had second thoughts. Since he had not been severely injured, he decided not to say anything and to get out of the neighborhood. At one time McNeal heard that defendant was in custody so he returned to the neighborhood. Soon after his return, he was near 57th and Ashland when a car containing defendant pulled up. Defendant made a ...