from the Circuit Court of Boone County. No. 13-CF-86
Honorable C. Robert Tobin III, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with
opinion. Justices Jorgensen and Birkett concurred in the
judgment and opinion.
1 Defendant, Deontae X. Murray, appeals his convictions of
first-degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and
unlawful possession of a firearm by a street gang member (720
ILCS 5/24-1.8(a)(1) (West 2012)), following a jury trial in
the circuit court of Boone County. We affirm as modified.
2 I. BACKGROUND
3 On July 19, 2013, a Boone County grand jury returned a
three-count amended indictment charging defendant with
first-degree murder in connection with the April 21, 2013,
shooting death of Richard J. Herman in Belvidere, Illinois
(count I), aggravated unlawful use of a weapon (720 ILCS
5/24-1.6(a)(1), (a)(3)(A), (d) (West 2012)) (count II), and
unlawful possession of a firearm by a street gang member
(count III). The jury convicted defendant of all three
offenses. The jury also found that defendant was armed with a
firearm during the commission of the offenses. The court
merged count II into count III and sentenced defendant to an
aggregate of 60 years' incarceration in the Illinois
Department of Corrections. The following evidence relevant to
the issues in this appeal was adduced at trial. We will
augment our discussion of the evidence where necessary in the
analysis portion of the opinion.
4 A. Defendant's Gang Affiliation
5 The State introduced defendant's gang affiliation to
show the motive for Herman's murder. The State argued
that defendant facilitated the shooting when he handed the
murder weapon to Marco "Wacko" Hernandez, who shot
6 Officer David Dammon of the Belvidere police department
testified for the State as an expert on gang activity. He
testified that defendant was a member of the Latin Kings
street gang. He based his opinion on his personal experience
with defendant, information in the police department's
gang database, defendant's association with other known
Latin Kings, defendant's use of gang signs, and
defendant's mode of dress. According to Dammon, Hernandez
was also a member of the Latin Kings but was so low in the
hierarchy that he would not be permitted by the gang to carry
a gun. Dammon detailed the criminal nature of street gangs in
general and the Latin Kings in particular. Dammon further
testified, without objection, that the Latin Kings are an
organized street gang as defined by statute. See 740 ILCS
147/10 (West 2012).
7 B. The Shooting of Richard Herman
8 On April 21, 2013, defendant attended a birthday party at
the home of Mallek Sanchez in Belvidere. Sanchez was a
"higher-up" in the Latin Kings. Hernandez was also
at the party. Defendant and Hernandez left the party and
walked to a nearby Shell gas station to buy beer and a cigar.
Max Cox, who was a member of the rival gang the Surenos 13,
and Herman, Cox's companion, were at the Shell station.
Cox was prepaying for gas, and Herman was at the coolers
buying beer. Cox and defendant knew each other, as Cox had
previously sold cannabis to defendant. Hernandez had a recent
confrontation with Cox.
9 1. Cox's Testimony
10 At approximately 6:30 p.m. on April 21, 2013, Cox parked
his car next to pump No. 5 at the Shell station, and he and
Herman went inside the store. Defendant and Hernandez were in
the store. Herman waved Cox to his location by the coolers
and told Cox something about Hernandez. Then Cox prepaid for
gas, Herman paid for a case of beer, and they left the store.
Herman placed the beer in the back passenger seat of
Cox's car, taking out a can for himself. Cox was on the
driver's side of the car, pumping gas, when he saw
defendant and Hernandez walking toward him. Defendant stopped
at his front bumper, and Hernandez stopped 10 or 15 feet from
the front bumper. Hernandez was yelling.
11 Defendant asked Cox if he was "gang banging, "
meaning was Cox "hanging out" with the Surenos 13.
Cox said no. Defendant accused Cox of lying. Then defendant
lifted his shirt and exposed a gun on his left side. Cox
described the gun as "black, square, decent size."
Defendant then covered the gun with his shirt again.
Hernandez stepped in front of defendant, stepped away, and
put a "pistol" behind his back. Then Hernandez
began arguing with Herman. Cox told Herman to shut up, that
Hernandez had a gun. Then Hernandez pulled out the pistol,
ran up to Herman, and shot him.
12 On cross-examination, Cox testified that defendant was at
least 10 feet away from him during the incident. Cox
testified that he did not see the exchange of the gun from
defendant to Hernandez. Cox agreed that he did not know
whether defendant handed the gun to Hernandez or whether
Hernandez grabbed it. According to Cox, the entire incident
took approximately a minute and a half.
13 2. Dan Arevalo's Testimony
14 Dan Arevalo was the cashier at the Shell station on the
evening of April 21, 2013. He looked out the window and saw
Cox pumping gas. He also saw Herman and defendant arguing. He
did not see Hernandez. Arevalo attended to some customers,
and when he looked outside again a few seconds later, he saw
Hernandez at the passenger side of Cox's car. Arevalo
testified that Hernandez was running toward Herman, reaching
for a gun from behind his back. He saw Hernandez point the
gun at Herman, at which time Arevalo "backed away."
Arevalo heard a shot. He immediately called 911. When Arevalo
next looked outside, he saw defendant and Hernandez running
15 3. Gerald Keeney's Testimony
16 On the evening of April 21, 2013, Keeney stopped at the
Shell station to buy lottery tickets. He sat in his pickup,
scratching his tickets on the center console, when he heard
people arguing. He saw two white men (presumably Cox and
Herman) at a gas pump. The next thing Keeney heard was a
gunshot. He ducked down. When he looked out again, he saw a
black man waving a gun. Keeney ducked down again. The next
time he looked out, he saw the black man and a Hispanic man
running toward the back of the station.
17 C. The Crime Scene and Investigation
18 A woman flagged down police officer Jeremy Bell and told
him that she saw two people running through an alley. Bell
searched the area, but he did not locate anyone. Sergeant
Shane Woody responded to the scene and saw Herman lying
face-up on the pavement near pump No. 5. He noted a bullet
hole in Herman's chest. Herman was transported to a
Rockford hospital, where he died at approximately 7 p.m.
19 Illinois State Police investigator Rebecca Hooks processed
the scene for evidence. Arevalo turned over a Shell station
surveillance video to Dammon. Dammon recognized defendant on
the video, but he did not recognize Hernandez. Cox and
Arevalo each identified defendant from a photo lineup, and
they later identified Hernandez as the shooter, from a second
20 Dr. Larry Blum, a forensic pathologist, performed an
autopsy on Herman. Dr. Blum testified that the bullet caused
Herman's left lung to collapse and then exited his back.
Herman died of hemorrhagic shock due to a gunshot wound to
21 After the murder, defendant moved among various addresses
in Harvard, Rockford, and Freeport, and he was considered by
the police to be a fugitive. Defendant's wandering was
aided by another Latin King, Anthony Perez. In late April
2013, the Belvidere police enlisted the help of the United
States Marshals to apprehend defendant. On May 9, 2013, the
police and the marshals executed a search warrant at
Perez's mother's apartment in Winnebago County. The
police recovered a state-issued ID card for defendant, mail
belonging to Perez, drug paraphernalia, cannabis, two
firearms, and ammunition.
22 On the top shelf of the bedroom closet, the police found a
Glock gun case. Inside the gun case were a black Glock Model
30 pistol, two magazines, and a magazine motor. Later, a
forensic test determined that the Glock was used to kill
Herman. Perez's fingerprints were found on the gun's
slide, but there was no DNA on the gun that was suitable for
23 On May 10, 2013, police officers searched a residence at
925 11th Street in Rockford. They observed a woman trying to
get into the house. She was placed in custody and identified
as Heather Swanson, defendant's girlfriend. While placing
Swanson in custody, the officers heard a "crash" in
some bushes north of the property. The officers jumped over a
chain link fence and arrested defendant, who was lying in the
bushes. Defendant stated: "Yeah, I know I'm wanted.
I was going to turn myself in."
24 The police seized defendant's cell phone. Two videos
recorded approximately two hours before the shooting showed
(1) Perez urinating on a building in Belvidere that bore
Surenos 13 gang graffiti and (2) defendant "throwing
up" a Latin Kings sign while Perez "threw
down" a Surenos 13 sign and said "13 killer."
25 D. Additional Trial Testimony
26 1. Swanson's Testimony
27 The State called Swanson in its case-in-chief. Swanson
testified that she was in jail on the evening of the murder.
She spoke on the phone with defendant that night, and she
later saw him in early May 2013.
28 The prosecutor asked Swanson what defendant told her about
what happened at the Shell station. Swanson testified:
"There was an argument and *** his friend shot
somebody." Swanson testified that she knew that Cox was
also at the Shell station. The prosecutor then asked her the
following question: "So what, if anything, did
[defendant] tell you about what [Cox] was doing at the Shell
station?" Swanson replied that she did not know
"specifically." The prosecutor then asked what
defendant told her about "the gun." She answered:
"He didn't tell me anything." The prosecutor
asked the same question again, and Swanson testified:
"[Defendant told me that] [Hernandez] shot the guy that
was at the gas station." The prosecutor then asked: