The opinion of the court was delivered by: Justice Burke
CHIEF JUSTICE THOMAS delivered the judgment of the court, with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.
The issue presented in this case is whether an erroneous jury instruction about eyewitness identification testimony rose to the level of plain error so as to require a new trial. In 1996, defendant was convicted of first degree murder for the shooting death of Pedro Melquiadez and attempted first degree murder and aggravated battery for shooting Jamie Fragoso. On appeal, the appellate court reversed defendant's convictions and remanded the cause for a new trial. People v. Piatkowski, No. 1--96--3827 (1999) (unpublished order under Supreme Court Rule 23). Following a jury trial, defendant was again convicted of the same crimes. His convictions were subsequently affirmed by the appellate court. People v. Piatkowski, No. 1--01--3766 (2003) (unpublished order under Supreme Court Rule 23). Defendant then filed a petition for leave with this court. We denied leave to appeal, but entered a supervisory order directing the appellate court to vacate its judgment and reconsider its decision in light of People v. Herron, 215 Ill. 2d 167 (2005), which involved the same jury instruction given in the present case. Following reconsideration in light of Herron, the appellate court affirmed defendant's convictions. No. 1--01--3766 (unpublished order under Supreme Court Rule 23). Defendant then filed another petition for leave to appeal with this court, which we granted (210 Ill. 2d R. 315(a)).
At defendant's retrial in July of 2001, Jamie Fragoso testified that around 2:30 a.m., on July 4, 1994, he was sitting on the doorway stoop of an apartment building located at 1631 West Wallen in Chicago with his friends--Pedro Melquiadez, Erica Ladezma, Juan Morales, and Jose Soto--when he noticed a blue and white Astro conversion van turn onto Wallen. Wallen is a one-way street going west. The van proceeded very slowly, stopped for a few seconds and then drove on to where the group was sitting on the south side of the street. It finally stopped directly in front of them with its driver's side window down and with the driver's side of the van facing the group. The driver then turned in his seat, leaned outside the window and spoke to them for a few seconds. The driver was looking directly at Fragoso, and Fragoso could see the driver's face clearly for those few seconds because the street lights were working and they illuminated the whole area. Despite the fact that the driver's window was down, Fragoso could not make out what the driver was saying, however, so Fragoso turned to Ladezma and Morales to ask them what the driver had said. At that point, Fragoso heard gun shots coming from the van so he ducked down. He felt a bullet hit him in the head and saw flashes coming from the van. He and Melquiadez covered Ladezma with their bodies until there was a momentary pause in the firing. Fragoso and Ladezma then got up and started running east. As they did so, Fragoso was shot in the leg. In all, he heard about 20 shots fired.
Fragoso identified a photograph of the steps where he was sitting prior to the shooting, which showed the letters "L.K." above the door. Over defendant's objection, Fragoso testified that the letters "L.K." stood for the Latin Kings street gang, that he himself was a member of the Latin Kings in 1994, and that the area on Wallen where the shooting occurred was Latin Kings territory.
On January 11, 1995, over six months after the shooting, Fragoso identified defendant as the driver of the van and the shooter from a photo array of a total of five pictures shown to him by police. At a lineup conducted at the police station on February 3, 1995, Fragoso again identified defendant as the driver and shooter. Defendant was the only person depicted in the photo array and the lineup with a goatee. Fragoso also positively identified defendant at trial as the driver and shooter.
On cross-examination, Fragoso testified that he had seen two persons in the van on the night in question, but he did not get a good look at the passenger because Fragoso focused on the driver when he spoke. Fragoso noted that while he was undergoing treatment at the hospital for his wounds immediately after the shooting, he told a police detective that the driver was a "male white Hispanic" who had a goatee and that the passenger was Puerto Rican. Fragoso stated that he also noticed that the driver had protruding eyebrows and eyes that were "sucked in." He acknowledged, however, that he did not tell police anything about the driver's eyes. He also admitted that he did not notice on the night of the shooting whether or not the driver had dark eyes. When Fragoso was asked by defense counsel if he was able to identify defendant from the photo array and at the lineup because the person depicted in the photo and lineup had short hair, a mustache, a goatee and dark eyes, Fragoso responded in the negative and stated that he identified defendant because he recognized him as the driver.
On redirect examination, the prosecutor asked Fragoso what he had told the detective who interviewed him at the hospital about who might have done the shooting. Fragoso responded that he told the detective that his gang was having some problems with other gangs, such as the Black Gangster Disciples, Ashland Vikings and Simon City Royals. The area where the shooting took place was just a few blocks from the Simon City Royals area. Defendant's objection to this testimony was overruled.
After Fragoso's testimony was completed, defendant renewed his objection to the gang testimony and moved for a mistrial. Prior to trial, the court had granted defendant's motion in limine to bar evidence of gang activity with the following exceptions: (1) a photograph of the doorway where the shooting took place that showed the letters "L.K." above the door; (2) testimony that "L.K." stood for Latin Kings; and (3) testimony from Fragoso himself that he was a member of the Latin Kings at the time of the shooting. The trial court denied defendant's motion for a mistrial.
Erica Ladezma testified that on July 4, 1995, at 2:30 a.m., she was sitting in front of a building at 1631 West Wallen talking with her friends--Fragoso, Melquiadez, Morales and Soto. They were discussing their plans for a Fourth of July picnic, when she saw a dark Astro van with white stripes turn onto Wallen. Mini blinds covered the rear windows of the van. After stopping briefly at two alleys, the van stopped in front of where Ladezma was sitting. The van had two occupants, and the driver's side of the van was facing her with the driver's side window down. The driver looked at her for 15 to 20 seconds, while she and her friends waited for him to say something. She also noticed that the passenger climbed out of his open window area and sat on the ledge of the window opening. In the meantime, the driver kept looking at her with his hands on the wheel. He then stretched out his arm with a gun in hand and pointed it at her and her friends. She heard gunshots and then felt Fragoso and Melquiadez pile over her, like they were trying to cover her.
During a momentary break in the shooting, she and Fragoso started to run. When they reached an alley, Fragoso told her that he had been shot, and she could see that he was bleeding from his head. Ladezma then went back to check on Melquiadez and found him unconscious on the ground. She held him until the paramedics came. When the police arrived at the scene, she told them that the driver of the van was a "male white Hispanic," with "really short" hair, who was wearing a tank top and a gold chain around his neck.
Ladezma further testified that in January 1995, she viewed two separate photo arrays. From the first photo array, she identified defendant as the driver of the van and the shooter. From the second photo array, she identified Shondell Gray as the passenger in the van. She later identified defendant at a lineup and at trial as the driver of the van and the shooter. Defendant was the only person in the lineup with a goatee.
On cross-examination, Ladezma testified she did not know if the van had white wall tires and she did not remember whether she told a detective that the van had checkered-style hubcaps. She told the police detective at the scene that the driver was young. When defense counsel asked Ladezma, who was 25 years old at the time of the shooting, if she thought the driver was approximately Ladezma's age, she responded, "About, yes, twenties, somewhere around there." She also testified that the detective at the scene did not ask her if the driver had facial hair, and she did not remember telling the detective that defendant had a goatee. When asked if she had ever mentioned to any police officer that defendant had a goatee, Ladezma's response was ambiguous. She first noted that she thought she did mention it to police, but then added that she did not recall. After defense counsel rephrased the same basic question, she responded, "Yes, I think so. I did. I don't know." She denied stating in a prior proceeding that she picked defendant out of the lineup because he had a goatee. On redirect, she stated that the only reason she picked defendant out of the photo array and lineup was because he was the person she saw drive the van and then shoot and kill Melquiadez.
Chicago police detective Steven Stratton testified that he interviewed Ladezma on July 4, 1994, at the scene of the shooting. She told him that the vehicle involved was a dark Astro van with white stripes, and there were at least two persons in it. She described the driver as "a male white or white Hispanic," in his early twenties, who wore a black tank top and gold chain. In his police report dated July 4, 1994, Stratton noted that Ladezma described the suspect as "male/WH"; this is his own shorthand notation, which to him means "white or white Hispanic."
On cross-examination, Stratton stated that Ladezma never mentioned that the driver had a goatee. She said that the van had checkered hubcaps and white-walled tires. Ladezma did not describe any windows behind the driver's window of the van and did not mention mini blinds.
Chicago police detective Lawrence Thezan testified that he prepared two photo arrays in January 1995. From the first group of photos, Ladezma identified defendant as the driver of the van and the shooter. From the second group of photos, she identified Shondell Gray as the passenger of the van. Fragoso viewed the first group of photos and identified defendant as the driver and the shooter. Thezan further testified that he conducted a lineup on February 3, 1995, at which both Ladezma and Fragoso identified defendant as the driver and shooter. Ladezma and Fragoso were kept apart from each other for their respective identifications.
On cross-examination, Thezan testified that none of the persons depicted in the first group of pictures shown to the witnesses had a goatee. When defense counsel asked Thezan if the photo of defendant showed that he had hair on his chin, Thezan responded that there "appears to be something on his chin." With respect to the photograph of the lineup, which occurred three weeks after the witnesses were shown the photo array of the first group, Thezan acknowledged that defendant was the only ...