The opinion of the court was delivered by: Justice Freeman
Docket No. 90914-Agenda 13- September 2001.
In the circuit court of Rock Island County, a jury found defendant, Jesus Villarreal, guilty of second degree murder in connection with the death of Ali McDonald. He appealed, claiming that he had not been proven guilty of second degree murder beyond a reasonable doubt. He argued in the alternative that he had been denied a fair trial by the verdict forms submitted to the jury and/or by improper admission of gang evidence. The appellate court found that the verdict forms used in this case had denied defendant a fair trial, and reversed his conviction and remanded for a new trial. No. 3-99-0048 (unpublished order under Supreme Court Rule 23). We granted the State leave to appeal to this court. See 155 Ill. 2d R. 315(a). We now reverse the judgment of the appellate court and reinstate defendant's conviction.
In the early morning hours of June 26, 1998, Moline Police Officer Robert McNabb responded to a call in the neighborhood of 4528 7th Avenue in Rock Island, Illinois. He found Ali McDonald lying in the street, bleeding from two stab wounds. An ambulance was summoned, but the victim died before it arrived. Defendant was arrested later that morning and gave a statement to police.
On June 27, the day after his arrest, defendant was charged by information with first degree murder, in that he had caused the death of the victim while committing the felony of aggravated battery (felony murder) (720 ILCS 5/9-1(a)(3) (West 1996)). Shortly thereafter, defendant filed notice of his intention to assert the defense of justifiable use of force. Jury trial was set for October 13. On October 8, the State filed two additional charges against defendant. He was charged with first degree murder in that he had caused the death of the victim in that he stabbed the victim, knowing that his act created a strong probability of death to the victim (first degree strong probability murder) (720 ILCS 5/9-1(a)(2) (West 1996)), and with second degree murder, in that he had committed first degree strong probability murder and at the time of the killing he unreasonably believed the circumstances to be such as would justify or exonerate the killing (720 ILCS 5/9-2(a)(2) (West 1996)).
Defendant filed a pretrial motion in limine to bar the State from introducing evidence of gang affiliation. The court denied the motion after conducting a pretrial hearing on the issue. The following evidence was adduced at the pretrial hearing on the motion and at trial.
At the pretrial hearing, Officer McNabb testified that shortly before 4 a.m. on June 26, 1998, he was in a public alley behind 156 4th Avenue in Moline. A number of persons were "hanging around" in the alley, having a casual boxing match. Officer McNabb knew that most of the individuals present were members of the Bishops street gang. However, he stated that he did not know defendant and defendant was not in the group. He stated that the 100 block between 4th and 5th Avenues in Moline was "Bishop territory."
After Officer McNabb had been in the alley for approximately 15 minutes, he observed four persons walking westbound past the front of the house on 4th Avenue. The officer later learned that the four persons were Onis Garcez, Hector Valles, Omar Garcia, and the victim, Ali McDonald. Soon after McNabb noticed the four men, the Bishops walked towards the front of the house to confront them. McNabb drove his squad car around to the front of the house to intervene. As the Bishops came around to the front of the house, they were yelling, challenging the passers-by. McNabb heard yells of "Bishops" and "punk and wetback and things like that."
When McNabb arrived at the front of the house, he ordered the Bishops to return to the rear of the house, then patted down the four pedestrians against his squad car for weapons and identification. McNabb then began to escort the four men out of the area, to the border of Moline. Before they crossed the border, however, McNabb received a dispatch to respond to an automobile accident. He left, but was immediately called back to the scene. When he arrived, he saw the victim lying wounded on the ground.
McNabb testified that he had been in contact with the Bishops for more than a year and a half. He stated that the Bishops were challenging the other four men because Bishops routinely challenged any group of non-Bishop Hispanic males in their area.
McNabb testified that the non-Bishops were not making any gang-related comments. He did, however, admit that they were yelling back at the Bishops in Spanish, a language McNabb does not understand. He stated that although the four men initially just wanted to leave, they seemed to want to "go at it" after all of the comments had been exchanged between the two groups. The victim initially refused to comply with the officer's attempt to search him; the officer had to open his baton before the victim complied. The victim continued to exchange comments with one of the Bishops in the officer's presence, even after all of the other Bishops had returned to the rear of the house.
At trial Officer McNabb repeated the above testimony, adding that he did find a bat at the scene of the stabbing, but no other weapons.
Enrique McDonald, the brother of the victim, lived one or two blocks from the site of the initial encounter. He testified at the pretrial hearing that he was home the night of the murder, and the victim was at his house, as were several other people. At about 2 or 2:30 a.m., they heard yelling outside, and McDonald saw six young men, one of whom was defendant, out in the street. McDonald did not hear defendant yell anything, but the group was yelling the phrases "[w]hat's going on-what's up. What's rolling?" He also heard the word Bishops, but did not know who said it. The victim ran at the men because one of them threw a bottle. McDonald grabbed a baseball bat and followed his brother.
At trial McDonald added more detail about events he observed. McDonald testified that he shouted at the victim that defendant had a knife, but the victim paid no attention to him. After defendant and the victim had run around a corner, defendant stopped and stood "waiting for" the victim. The victim closed with defendant, and threw a punch. Defendant lunged at the victim with the knife, and the victim fell. McDonald chased defendant, and hit him with the baseball bat when he stumbled, near a telephone in the street. McDonald testified that the victim never had a baseball bat or any weapon. McDonald returned to the victim after hitting defendant, because other men were hitting the victim with a baseball bat as he lay in the street.
On cross-examination, McDonald admitted that when he gave a statement to the police shortly after the stabbing he told them that the victim was not the first person to move towards the men in the street; other people at the house had already started walking towards them when the bottle was thrown. However, he stated that, actually, the victim was the first person to move out into the street towards the other men. He stated that when the victim first went out into the street, defendant was backing away from him in a walking crouch, showing the knife. His walk changed to a run when he got to an alley in the middle of the block. The victim ran after him, and caught up to him at the corner. McDonald stated that when defendant and the victim ran he followed, with the baseball bat in his hands. He admitted that he was running towards defendant when the victim was stabbed; the victim was also moving towards defendant at that time.
McDonald was also stabbed by defendant, but that stabbing occurred while McDonald was hitting defendant with the baseball bat. McDonald initially testified that defendant was yelling "help me," but on redirect examination testified that he did not actually hear that. He thought that defendant had probably yelled something, because some of his friends did come to help him. He did hear someone other than defendant yell "whoee." *fn1
Hector Manuel Valles testified at the pretrial hearing that he was one of the men who walked past 156 4th Avenue with the victim. He heard the word "Bishops" being used when the people at the house were yelling things. The group was calling them "Low Riders," which is a gang in Moline; Valles made a gang sign in response, indicating that he was a member of the Sudenyo gang. Valles corroborated that several men showed up yelling on the street in front of McDonald's house later on, but he could not identify anyone in the group. He testified that he and the others were sitting on the steps in front of the house, and he never saw the victim leave the house. He admitted that he was drunk at the time.
Omar Garcia testified at the pretrial hearing that he was also with the victim as they walked past 156 4th Avenue. There a group of men approached them and started yelling and "sending signs," signifying their gang affiliation. The other group yelled, among other things, "Bishops" and "Low Rider killers." He testified that a group of men later showed up at McDonald's house, shouting similar things. He could not tell if they were the same men who had been shouting things before, and could not identify defendant as a member of the group. Garcia understood the shouting of "Low Rider killers" to mean that the other group thought that they were members of the Low Rider gang and wanted to beat them up because of that fact. He ...