The opinion of the court was delivered by: Chief Justice Harrison
Following a bench trial in the circuit court of Kane County, defendant, Victor Perez, was found guilty of first degree murder (720 ILCS 5/9-1(a) (West 1994)) stemming from the shooting death of Pedro Gonzalez. The conviction was based on a theory of accountability. 720 ILCS 5/5-2(c) (West 1994). Defendant was sentenced to 20 years' imprisonment. The appellate court affirmed defendant's conviction in an unpublished order. No. 2-96-0744 (1998) (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now reverse defendant's conviction.
The evidence presented at trial showed, in relevant part, that on February 14, 1995, around 9 p.m., the victim, Pedro Gonzalez, was walking home from a gym in Elgin with his brother Angel Gonzalez and his friend Eduardo Corral. As they were walking, a green car pulled up beside them. Several persons exited the car, including Anthony Rivera and Luis Nieves, both admitted members of the Maniac Latin Disciples street gang (Disciples). The Disciples and the Latin Kings (Kings) are rival gangs. There was conflicting testimony as to the events that occurred next.
Angel Gonzalez, a State witness, testified that as Rivera and Nieves exited the car they asked "[w]ho is a King?" and accused Pedro of displaying King hand signs. Angel stated that defendant drove by in his car, was hailed by Rivera, turned around and parked behind the green car. As defendant exited his car and approached the group, he was asked by Rivera and Nieves if Pedro was a King. According to Angel, defendant pointed at Pedro and said "yes, he's [Pedro's] a King" three times. Angel added that defendant "pointed the finger and said my brother and he made a gang sign." However, when the prosecutor asked Angel to describe exactly what defendant did, Angel responded: "He pointed his finger." On cross-examination, Angel stated he did not know whether defendant said Pedro was a King once, twice or three times, "but for me it was several times I heard."
Angel testified that about two minutes after defendant's statement he heard five or six gunshots. Angel did not know who fired the shots and did not see a weapon. Angel testified that defendant was present at the time of the shooting and that afterwards, he saw defendant run to his car, get in and speed away. Angel stated that defendant left "screaming." Angel claimed that neither he nor Pedro was a member of the Kings on the day of the shooting, but that both had been members in the past. Angel believed that defendant used to be a King, but that on February 14, 1995, he was a member of the Disciples.
Angel further testified that about a week before the shooting, Rivera and Nieves were in the same green car and followed him and Pedro as they walked, flashing gang signs at the brothers. Angel stated that he and Pedro did nothing in response. Then, on the day before the shooting, he and Pedro were again followed by Rivera and Nieves in the green car, displaying Disciple gang signs. Angel thought that Rivera and Nieves were trying to start a fight, and believed that nothing happened that day because he and Pedro were in front of a police station. Angel added that, that same day, Pedro had run home and reported to Angel that he was being chased by the same men in the green car. The defendant was not present on any of these occasions.
Eduardo Corral, also testifying for the State, stated that on the day of the shooting five individuals, including Rivera, got out of a green car and were looking for Pedro. According to Corral, the group told Pedro to stop displaying King signs. Corral further testified that, at some point, defendant pulled up in his car, got out, and joined the group. Corral did not know defendant. Corral stated that someone told Pedro that they had seen him "throwing the crown up," which meant he was identifying himself as a King. Corral testified that Pedro denied doing this, but "Coco say yes, I'm sorry man, you just did it." Corral stated that he did not see Coco in the courtroom, and identified People's Exhibit 18, a photograph of Luis Nieves, as Coco. When Corral became aware that Coco was defendant's nickname, he admitted that he was "confused." He was then allowed, over defense objection, to repeat his testimony. Corral then stated that Pedro said to defendant, "Right, Coco? I didn't do it [display King gang signs], you know," and defendant responded, "I'm sorry, man, but you did, you know." Someone then yelled "cops" and Pedro began to run. Corral testified that Rivera asked Pedro why he was running and then shot him. Corral also testified that several days before the shooting, he and Pedro were chased by Rivera and another individual, whom Corral did not see at the murder scene.
While Corral stated that about four minutes passed between defendant's statement and the time someone yelled "cops," on cross-examination, Corral testified that the period between the two statements was a short time, "[a]lmost right away." Corral further stated that Rivera pulled his gun very quickly and that there was no time for anyone to say, "don't shoot." Corral also testified on cross-examination that he did not see anyone motion to defendant as his car passed by, nor did he hear anyone whistle at defendant. Corral stated that no one flashed any gang signs after defendant arrived on the scene. Corral admitted that, at the time of the incident, he told a police officer that a man referred to as "Coco" had pointed to Pedro and said "he's the Latin King."
Detective James Lullo testified for the State, over defendant's objection, as a gang expert. Lullo stated that he had been a police officer for 11 years and had worked with street gangs for about eight of those years. Lullo testified that he was a certified gang specialist assigned to the Elgin police department gang unit. He stated that he had a working knowledge of Elgin's street gangs and was familiar with members of both the Disciples and Kings. According to Lullo, every gang has an "underlying criminal intent" which is carried out by its members. Generally, members of opposite gangs do not socialize with each other. Lullo explained that, on the day of the shooting, the Disciples and Kings were at war, which meant that rival gang members fought and shot at each other. Lullo admitted that characterizing someone as a full gang member was a "subjective call" involving factors such as the individual's self-admission to gang membership, the presence of gang tattoos, "hanging" in gang territory, associating with other gang members, using gang signs and expressions, and being involved in crimes with other gang members.
Detective Lullo testified that, in his opinion, defendant was an associate member of the Disciples. An associate member is one who sometimes "hangs" with members of a gang in a specific neighborhood. Associate members are not constantly in the neighborhood, but display hand signs and understand the knowledge and structure of the gang. Detective Lullo believed defendant was an associate member of the Disciples based upon several incidents which had occurred in the six months prior to the shooting. Lullo testified that one incident involved a traffic altercation between defendant and a member of the Kings "where they were crashing each other and shooting." In another instance, defendant was at a street fair with eight members of the Disciples, during which time the Disciples had a physical altercation with the Kings where shots were fired.
On cross-examination, Lullo testified that he was not the investigating officer in the traffic incident involving defendant and a King. Upon reviewing the report prepared on the incident, Lullo noted that it indicated defendant was driving his car when he was hit by an intoxicated driver who did not stop. Defendant then chased the car that hit him, which was driven by a gang member. Lullo conceded that having an accident with a gang member does not make one a gang member. Lullo also admitted on cross-examination that defendant was seen at the street fair in the company of five known Disciples, not eight, and that those five wore gang colors and represented themselves as Disciples. Defendant was not wearing gang colors and did not represent himself as a gang member.
Lullo further testified that defendant, on numerous occasions, was observed in the Disciple neighborhood associating with gang members. On cross-examination, Lullo admitted that defendant's home is located in the Disciple neighborhood. On redirect, Lullo stated that defendant was involved in another incident where he was driving a car with two passengers when shots were fired at them. On re-cross-examination, Lullo admitted defendant's companions were not associated with a gang and that all three told police they did not know why they had been shot at because they were not gang members. Moreover, Lullo conceded that defendant has never admitted to being a gang member, wears no tattoos, and is not known to have ever attended a gang meeting.
At the close of the State's case, defendant moved for a directed verdict. The trial court heard arguments on the motion and denied it. Defendant then presented his defense.
Juan Carrizales, called as a defense witness, testified that he and defendant were close friends. On February 14, 1995, around 8:15 p.m., defendant picked him up and they went to get something to eat. Defendant was not wearing gang colors. According to Carrizales, as defendant was driving him home around 9 p.m., he made an unexpected left turn, double parked the car and got out. Carrizales stated that he did not leave the car and did not see where defendant went. Carrizales testified that after about a minute, defendant returned to the car and, as defendant was getting in, Carrizales heard about four or five gunshots. Defendant and Carrizales then left. On cross-examination, Carrizales stated that he was a member of the Disciples, but that defendant was not. Carrizales testified that ...