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People v. Murray

Supreme Court of Illinois

October 18, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
DEONTAE X. MURRAY, Appellant.

          Justice Burke concurred in the judgment and opinion.

          OPINION

          NEVILLE JUSTICE

         ¶ 1 Following a jury trial, defendant Deontae X. Murray was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and unlawful possession of a firearm by a street gang member (id. § 24-1.8(a)(1)). The circuit court of Boone County sentenced defendant to consecutive terms of 50 years and 10 years respectively. On appeal, defendant argued that the evidence was insufficient to establish that he committed the firearm offense. The appellate court affirmed defendant's conviction. 2017 IL App (2d) 150599. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff Nov. 1, 2017). For the reasons that follow, we reverse the judgment of the appellate court.

         ¶ 2 I. BACKGROUND

         ¶ 3 The evidence presented at trial established the following relevant facts. On April 21, 2013, defendant went to a gas station in Belvidere, Illinois, to purchase beer. Defendant was accompanied by Marco Hernandez. As defendant and Hernandez were exiting the gas station store, Max Cox and Richard Herman were entering. Cox had admitted belonging to the Sureño 13 street gang.

         ¶ 4 Defendant and Hernandez waited outside until Cox and Herman eventually exited the gas station store and walked back to their car, which was parked by a gas pump. Defendant and Hernandez approached Cox and Herman. Defendant asked Cox "what's up" and whether he was "gang banging." Cox replied "no," and defendant lifted up his shirt to reveal a handgun and accused Cox of lying. According to Cox, Hernandez, who had been standing in front of defendant, removed the handgun from defendant's waist band, stepped away, and then held it behind his own back. Hernandez and Herman began to argue, and Cox told Herman to "[s]hut the f*** up, he has a gun." Hernandez pulled out the gun, ran up to Herman, and shot him in the chest. Herman was taken to a nearby hospital, where he was pronounced dead.

         ¶ 5 A grand jury indicted defendant and Hernandez in connection with Herman's murder. Defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)), aggravated unlawful use of a weapon (id. § 24-1.6(a)(1), (a)(3)(A), (d)), and unlawful possession of a firearm by a street gang member (id. § 24-1.8(a)(1)).

         ¶ 6 At defendant's trial, the State called police detective David Dammon as a witness. Dammon testified about his experience with the Belvidere Police Department beginning in 1996, his position in the street gang unit, and his specialized training and courses taken in street gangs and gang activity, which included training dealing with active gangs in Chicago, the Chicago suburbs, and areas close to Belvidere and Rockford. Dammon also testified that he had been personally involved in over 400 gang crime investigations and that, while acting as a gang officer and detective, he had contact with gang members in Belvidere well over a thousand times and personally interviewed people taken into custody for various gang offenses well over a thousand times.

         ¶ 7 In addition, Dammon generally described how street gangs operate, their hierarchy, and their use of guns for the protection of drugs, cash, and themselves from rival gangs. He testified that the Latin Kings and the Sureño 13s are the major groups of gangs in the Belvidere area and that there is a rivalry between them. He also testified that the phrase "gang banging" indicates when gang members are doing gang work, are intimidating people, and are committing crimes for the benefit of a street gang. He further testified that he had contact with defendant in the context of prior gang investigations.

         ¶ 8 Over an objection made by defendant, Dammon was permitted to testify as an expert on gang activity. The following testimony was elicited on the State's direct examination of Dammon:

"Q. What is a street gang?
A. A street gang is defined by Illinois statute actually. It has to have one of three things. It's two or more people with a recognized hierarchy and leader and their activities are criminal or at least a threat to society.
Q. Is the Latin Kings [a] street gang, is that an organized street gang as defined by our state Street Gang Omnibus Act?
A. It is."

         ¶ 9 Dammon stated that, as a member of the street gang unit, he gathers intelligence information from and for street gang databases. He also testified to specific types of sources that he and other experts in their field rely upon in identifying someone as a gang member, including law enforcement databases.

         ¶ 10 During Dammon's testimony, the State played for the jury two videos recovered from defendant's cell phone recorded two hours prior to the shooting. The videos show defendant and Anthony Perez outside an apartment complex in Belvidere, standing in front of graffiti, making hand signals. In one video, Perez is seen urinating on the side of the building, walking over to the graffiti, and saying aloud "thirteen K." Dammon explained that the "13" stands for the Sureño 13 gang and the K was added to signify a Sureño 13 killer. Dammon testified that the graffiti is "something that somebody that didn't get along with the 13's would put up."

         ¶ 11 Defendant also testified. He stated that he had been a member of the Latin Kings from the age of 13 to 21 but, at the time of trial, he was no longer a member.

         ¶ 12 The jury convicted defendant of all three offenses, and the circuit court merged the aggravated unlawful use of a weapon conviction (id. § 24-1.6(a)(1), (a)(3)(A), (d)) into the unlawful possession of a firearm by a street gang member conviction (id. § 24-1.8(a)(1)) and imposed a sentence on that offense. Defendant appealed.

         ¶ 13 On appeal, defendant raised several issues. Relevant here, defendant asserted that the State failed to prove that the Latin Kings are a "streetgang" as defined by the Illinois Streetgang Terrorism Omnibus Prevention Act (Act). 740 ILCS 147/10 (West 2012); see 720 ILCS 5/24-1.8(a)(1) (West 2012) (unlawful possession of a firearm by a street gang member statute providing that the term "street gang" has the meaning ascribed to it by the Act); 740 ILCS 147/10 (West 2012) (defining "streetgang," including the term "course or pattern of criminal activity," which is itself separately defined).

         ¶ 14 Defendant contended that, as in People v. Lozano, 2017 IL App (1st) 142723, he could not be guilty of unlawful possession of a firearm by a street gang member because the State did not establish, by way of Dammon's testimony, that the Latin Kings committed certain crimes within the relevant time period. Thus, because the State did not show that the Latin Kings had engaged in a "course or pattern of criminal activity," during the requisite time period, the State failed to prove that the Latin Kings are a "street gang."

         ¶ 15 The appellate court rejected defendant's argument, concluding: "[I]n People v. Jamesson, 329 Ill.App.3d 446, 460 (2002), this court held that an expert on gangs may opine on the ultimate issue of whether an organization is a street gang engaged in a course or pattern of criminal activity without testifying to specific dates or incidents. Here, Dammon testified to the organizational structure of street gangs in general, and the Latin Kings in particular, and he opined that the Latin Kings are a street gang within the meaning of Illinois law. That opinion alone was sufficient to establish the element that the Latin Kings are a street gang. Further, Dammon testified in the present tense that gangs use guns to protect their drugs, cash, and members from rival gangs and that members do whatever is needed to benefit the gang, including intimidation of people. We believe that the jury could have reasonably inferred from Dammon's testimony that the Latin Kings historically and currently commit felonies." 2017 IL App (2d) 150599, ¶ 83.

         ¶ 16 II. ANALYSIS

         ¶ 17 Before this court, defendant argues that the State failed to prove that the Latin Kings are a "street gang" as defined by the Act. See 740 ILCS 147/10 (West 2012). Specifically, defendant contends that the State's proof was insufficient because its gang expert did not testify to a relevant time period or, indeed, to any specific historical crimes committed by the Latin Kings, as required by the Act.

         ¶ 18 The State maintains it is not required to present evidence of specific crimes committed by the Latin Kings. The State asserts that, because an expert may provide an opinion on the ultimate issue in a case, Dammon's testimony was sufficient to establish that the Latin Kings are a "street gang," as defined by the Act. The State alternatively contends that, if proof of specific crimes were required, it presented evidence of a "course or pattern of criminal activity" through defendant's own crimes.

         ¶ 19 Where a criminal conviction is challenged based on insufficient evidence, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v. Brown, 2013 IL 114196, ¶ 48; People v. Cooper, 194 Ill.2d 419, 430-31 (2000). This standard of review "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; accord People v. Howery, 178 Ill.2d 1, 38 (1997). Therefore, a reviewing court will not substitute its judgment for that of the trier of fact on issues involving the weight of the evidence or the credibility of the witnesses. Brown, 2013 IL 114196, ¶ 48; Cooper, 194 Ill.2d at 431. Although these determinations by the trier of fact are entitled to deference, they are not conclusive. Rather, a criminal conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Brown, 2013 IL 114196, ¶ 48; People v. Wheeler, 226 Ill.2d 92, 115 (2007); People v. Ortiz, 196 Ill.2d 236, 259 (2001).

         ¶ 20 A. Expert Opinion

         ¶ 21 We begin by considering defendant's assertion that Dammon's testimony was insufficient to establish that the Latin Kings are a street gang as defined by the Act. The State counters that it is not required to present evidence of specific crimes committed by the Latin Kings. We agree with defendant.

         ¶ 22 In the case at bar, the offense of unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)) requires proof that the Latin Kings are a "streetgang" as defined in section 10 of the Act. The Act defines "streetgang" as "any combination *** of 3 or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity." 740 ILCS 147/10 (West 2012).

         ¶ 23 "Course or pattern of criminal activity" is defined, in part, as (1) two or more gang-related criminal offenses committed in whole or in part within this State; (2) that at least one such offense was committed after January 1, 1993, the effective date of the Act; (3) that both offenses were committed within five years of each other; and (4) that at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 2012. Id.

         ¶ 24 The offense of unlawful possession of a firearm by a street gang member incorporates by reference the definition of a "streetgang" as set forth in the Act. The effect of this reference is the same as though these provisions had been incorporated into the adopting statute. See People v. Lewis, 5 Ill.2d 117, 122 (1955) (finding it is a familiar legislative process to incorporate one statute into another by reference); In re Jarquan B., 2017 IL 121483, ¶ 61 (Burke, J., specially concurring, joined by Kilbride, J.). The incorporation of the definition of a "streetgang" into the terms of the offense signifies that the requirements in the Act are elements of the offense. Lewis, 5 Ill.2d at 122. Thus, in addition to possessing a gun and being a member of a gang, proof of defendant's guilt of the offense mandates that the State present evidence that establishes a "course or pattern of criminal activity" (1) that the Latin Kings were involved in two or more gang-related criminal offenses; (2) that at least one such offense was committed after January 1, 1993; (3) that both offenses were committed within five years of each other; and (4) that at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony. 740 ILCS 147/10 (West 2012).

         ¶ 25 Briefly summarized, Dammon's relevant testimony established that, since 1996, he had been a member of the Belvidere Police Department's street gang unit with specialized training. As a member of that unit, his responsibilities included investigations and interviews with gang members and enforcing laws for crimes that are being committed by gang members. He also testified to his expertise with gangs in general and familiarity not only with the local Latin Kings but with defendant himself.

         ¶ 26 Furthermore, Dammon was shown data sheets from the Belvidere Police Department's gang database and explained that such documents are one type of evidence upon which gang experts rely to identify someone as a gang member. When asked about other evidence experts in his field rely upon, Dammon identified the Law Enforcement Automated Data System (LEADS), the Illinois Department of Corrections Information System, previous narcotics cases, notes from such cases, and notes from interviewing other gang members or persons who are affiliated with gangs that have previously given reliable and reputable information. Finally, Dammon stated that the Latin Kings are a street gang as defined by the Act.

         ¶ 27 The State maintains that Dammon's opinion that the Latin Kings are a "street gang" was sufficient, even though his direct testimony did not disclose any specific crime evidence. The State asserts that, once Dammon provided his expert opinion on the street gang element, the burden shifted to defendant to cross-examine Dammon on the facts underlying that opinion. That approach, however, erroneously shifts the burden of proof and requires defendant to disprove the State's case before it has established the elements of the offense of unlawful possession of a firearm by a street gang member.

         ¶ 28 The right to due process, as guaranteed by the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2), safeguards an accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to prove each element that constitutes the crime charged. See Jackson, 443 U.S. at 315-16; Brown, 2013 IL 114196, ¶ 48; People v. Cunningham, 212 Ill.2d 274, 278 (2004). An essential element of proof to sustain a conviction cannot be inferred but must be established. People v. Mosby, 25 Ill.2d 400, 403 (1962). It is axiomatic that the State carries the burden of proving each element of a charged offense beyond a reasonable doubt. Brown, 2013 IL 114196, ¶ 52. Such burden rests on the State throughout the entire trial and never shifts to the defendant. Howery, 178 Ill.2d at 32. Therefore, the defendant is under no obligation to produce any evidence, and the burden of proof never shifts to the defendant but remains the responsibility of the State throughout the trial. People v. Weinstein, 35 Ill.2d 467, 470 (1966); People v. Kelley, 2015 IL App (1st) 132782, ¶ 62.

         ¶ 29 The State concedes, as it must, that Dammon's direct testimony did not disclose the specific crime evidence required by the Act. Further, the State finds it significant that defendant did not cross-examine Dammon regarding his opinion.

         ¶ 30 The State's attempt to shift the burden of proof to defendant, excusing it from being required to prove the elements of the charged offense, violates defendant's right to due process. See Jackson, 443 U.S. at 315-16. In general, the purpose of cross-examination is to highlight the flaws and omissions in the evidence presented during direct examination. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 105 (1995). As a practical matter, cross-examination is necessary only where the flaws and omissions are not readily apparent from the previous testimony on direct examination. In a criminal case, cross-examination of the State's witnesses is not intended to serve as an alternative means of establishing the elements of the offense beyond a reasonable doubt. Mosby, 25 Ill.2d at 403. If the State fails to present evidence that establishes the elements of the charged offense, cross-examination by the defendant is not required. Howery, 178 Ill.2d at 32. Because the State bears the burden of proof, it similarly bears the consequences of any omission of proof.

         ¶ 31 In addition, we observe that Illinois Rule of Evidence 705 (eff. Jan. 1, 2011) unambiguously requires that Dammon articulate the reasons for his opinion. Rule 705 provides that "[t]he expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data." Id. Here, Dammon generally described in broad terms the types of information and facts on which his opinion was based, but he never explained his reasons as to why that information supported his opinion. Admittedly, Dammon was not obligated to bring forth the underlying facts and data upon which his opinion was premised, but merely identifying the source of those facts and data, without explaining the reasons for his opinion, fails to prove the elements of the offense of unlawful possession of a firearm by a street gang member.

         ¶ 32 In contrast to the State's approach in this case, the correct application of Rule 705 is illustrated by People v. Fountain, 2016 IL App (1st) 131474, People v. Simpson, 2015 IL App (1st) 130303, and People v. Negron, 2012 IL App (1st) 101194. In each of these cases, all of the requirements of Rule 705 have been satisfied. Although these cases are based on the admissibility of the evidence, rather than the sufficiency of the evidence, we find the reasoning instructive regarding the interplay of Rule 705 and presentation of expert testimony in a criminal case.

         ¶ 33 In the aforementioned cases, the appellate court noted that the experts testified on an ultimate issue or conclusion, detailed their analytic process and methodology, and also thoroughly explained the reasons for their opinions. Fountain, 2016 IL App (1st) 131474, ¶¶ 65-67; Simpson, 2015 IL App (1st) 130303, ¶¶ 14, 38; Negron, 2012 IL App (1st) 101194, ¶¶ 38, 40. In each case, the appellate court acknowledged that Rule 705 permits an expert to testify in terms of opinion or inference and to give reasons therefor without divulging the underlying facts and data for it, which then shifts the burden to the opposing party to explore the same on cross-examination. Fountain, 2016 IL App (1st) 131474, ¶ 64 (applying Illinois Rule of Evidence 705 (eff. Jan. 1, 2011)); Simpson, 2015 IL App (1st) 130303, ¶ 37 (same); Negron, 2012 IL App (1st) 101194, ¶ 42 (same). However, in all of these cases, the defense engaged in rigorous cross-examination eliciting the flaws and omissions in the experts' reasons only after the experts' direct testimony fully explained the reasons and basis for their opinions. Fountain, 2016 IL App (1st) 131474, ¶ 68; Simpson, 2015 IL App (1st) 130303, ¶ 38; Negron, 2012 IL App (1st) 101194, ¶ 42.

         ¶ 34 This case presents a distinctly different circumstance. Here, the State never satisfied the first condition of Rule 705, which requires testimony explaining the reasons for the expert's opinion. Ill. R. Evid. 705 (eff. Jan. 1, 2011); see People v. Mpulamasaka, 2016 IL App (2d) 130703, ¶ 89 (an expert's opinion is only as valid as the reasons for the opinion). This condition must be fulfilled prior to shifting the burden to defendant to explore the underlying facts or data on cross-examination. Dammon only provided a general reference to the sources of the underlying facts and data. He never explained the nexus between (1) LEADS, the Illinois Department of Corrections Information System, gang databases, or notes from other cases and (2) how this information established that the Latin Kings were a street gang engaged in a "course or pattern of criminal activity." He described the nature of his experience and familiarity with the databases, but he never explained the reasons or information and facts that supported his opinion, and he never connected his reasons or the information and facts to defendant to satisfy the statutory definition of "street gang." The State also failed to meet its burden because it failed to present evidence that established two specific crimes, one of which must involve the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 2012, within the relevant time period. 740 ILCS 147/10 (West 2012). Therefore, because Dammon's direct testimony was devoid of any "course or pattern of criminal activity" evidence, the offense of unlawful possession of a firearm by a street gang member had not been established, and cross-examination by defendant was not required.

         ¶ 35 Further, we note that, with regard to Dammon's reliance on gang databases for his opinion, Illinois Rule of Evidence 803(8) (eff. Apr. 26, 2012) provides, in relevant part:

"The following are not excluded by the hearsay rule ***:
*** Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report *** unless the sources of information or other circumstances indicate lack of trustworthiness."
Pursuant to Illinois Rule of Evidence 201, we take judicial notice of the fact that the City of Chicago inspector general's April 2019 review of the Chicago Police Department's "Gang Database" found that the Chicago Police Department (CPD) lacks sufficient controls for generating, maintaining, and sharing gang-related data; CPD's gang information practices lack procedural fairness protections; CPD's gang designations raise significant quality concerns; and CPD's practices and lack of transparency regarding its gang designations strain police-community relations, indicating that the gang database lacks trustworthiness. See Ill. R. Evid. 201(b) (eff. Jan. 1, 2011) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is *** capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."); Ill. R. Evid. 201(c) (eff. Jan. 1, 2011) ("A court may take judicial notice, whether requested or not."); see also Office of Inspector General, City of Chicago, Review of the Chicago Police Department's "Gang Database" (Apr. 11, 2019), https://igchicago.org/2019/04/ 11/review-of-the-chicago-police-departments-gang-database [https://perma.cc/ 85VR-5YKN].

         ¶ 36 Here, we find that the State presented no evidence of the Latin Kings' involvement in specific crimes as required by the Act. See 740 ILCS 147/10 (West 2012). Dammon did not identify the Latin Kings' commission of particular offenses on certain dates. Furthermore, the State provided no other witnesses who testified to specific offenses committed by the Latin Kings during the relevant time period that would satisfy the statutory definition of a "streetgang." Expert opinions and inferences testified to under Rule 705, without testimony regarding specific crimes committed by the Latin Kings, do not establish a violation of the Act. As stated earlier, an essential element of proof to sustain a conviction cannot be inferred but must be established. Mosby, 25 Ill.2d at 403.

         ¶ 37 The State's approach in this case violated the constitution because it shifted the burden to defendant to disprove an element of the offense. See Brown, 2013 IL 114196, ¶ 52 (holding the State always has the burden of proving all of the elements of the offense); Howery, 178 Ill.2d at 32 (burden rests on the State throughout the entire trial and never shifts to the defendant). Thus, under the circumstances here, we find that the State failed to meet its burden of presenting evidence that established that the Latin Kings meet the statutory definition of a "streetgang." See Patterson v. New York, 432 U.S. 197, 210 (1977) (holding that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged").

         ¶ 38 Finally, having examined the appellate court opinions that excused the State from proving all the elements of the offense of unlawful possession of a firearm by a street gang member, we observe that these decisions are in direct contravention of the express language in the Act. The Act requires that at least one of the two required offenses be committed after January 1, 1993, and that the offenses had been committed within five years of each other. 740 ILCS 147/10 (West 2012). The primary objective in construing a statute is to ascertain and give effect to the intent of the legislature. People v. Casas, 2017 IL 120797, ¶ 18. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. People v. Reese, 2017 IL 120011, ¶ 30.

         ¶ 39 The language of the Act definitively implements the legislative intent. During Senate debate on creating the offense at issue here, lawmakers expressed concern about the possibility of unfairly punishing individuals based on prior or tenuous gang affiliation. 96th Ill. Gen. Assem., Senate Proceedings, Oct. 29, 2009, at 154-55 (statements of Senator Raoul). Further, there was an inquiry as to whether the statute contained a "very clear definition of what a gang member is." Id. at 157 (statements of Senator Rutherford). In response, Senator Millner stated that the defendant must be "actively engaged in the criminal enterprise" and "the burden of proof from the State's attorney's office *** has to be very, very high. They have to prove it up. And *** it has to be part of the Illinois Streetgang Terroris[m] Omnibus [Prevention] Act." Id. at 158 (statements of Senator Millner). He stated that the definition is "probably two hundred plus words defining what a street gang member is and what it takes to be actively engaged in a criminal enterprise," again reiterating that "the burden of proof is very high." Id. at 158-59 (statements of Senator Millner).

         ¶ 40 Turning to the appellate decisions, in People v. Jamesson, the court noted that the detective's testimony specified that he began having contact with the street gang" 'a couple of years ago'" and the street gang was involved with aggravated batteries. 329 Ill.App.3d 446, 460-61 (2002). The court concluded that the reference to "a couple of years ago" was adequate to establish that the offenses occurred within five years of each other and took place after the effective date of the Act, thus satisfying the elements of being a "street gang." Id. at 461.

         ¶ 41 In a more recent appellate opinion, People v. Berrios, 2018 IL App (2d) 150824, the court, relying on Jamesson and the appellate court's decision in this case, reasoned that it had" 'previously held that an expert on gangs may opine on the ultimate issue of whether an organization is a street gang engaged in a course or pattern of criminal activity without testifying to specific dates or incidents.'" Id. ¶ 22 (quoting People v. Murray, 2017 IL App (2d) 150599, ¶ 83). The Berrios court observed that the expert testified that he had been with the gang unit for three years and that the gang unit" 'track[s]'" the Latin Kings and other street gangs. Id. In so stating, the court determined that the expert had expressed his opinion that the Latin Kings are, in fact, a street gang. Id. The court stated that under our precedents nothing more was required. Id. The Berrios court acknowledged that the expert's testimony concerning the Latin Kings could have been more comprehensive. Id. However, the court found that the evidence was sufficient to support a reasonable determination that the Latin Kings are a street gang having engaged in a course or pattern of criminal activity within the meaning of section 10 of the Act. Id.

         ¶ 42 It is apparent that some appellate court decisions, relying on the appellate court's decision in this case and Jamesson, now require no testimony on "course or pattern of criminal activity" establishing (1) that a street gang was involved in two or more gang-related criminal offenses; (2) that at least one such offense was committed after January 1, 1993; (3) that both offenses were committed within five years of each other; and (4) that at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony. 740 ILCS 147/10 (West 2012). It is also clear from the legislative history that the legislature intended to hold the State to a "very, very high" burden when establishing each and every element of the offense, including the definition of "streetgang," which requires proof of "a course or pattern of criminal activity." See 96th Ill. Gen. Assem., Oct. 29, 2009, at 158 (statements of Senator Millner); 740 ILCS 147/10 (West 2012). The current trend in the appellate court of excusing proof of each element of the offense is in direct conflict with our precedents and the language of the Act. Brown, 2013 IL 114196, ¶ 52; Howery, 178 Ill.2d at 32; Mosby, 25 Ill.2d at 403; 740 ILCS 147/10 (West 2012). Therefore, it cannot be said that proof of specific crimes is not required. Accordingly, to the extent that Jamesson and Berrios stated otherwise, they are overruled.

         ¶ 43 In support of its assertion that evidence of specific crimes committed by the Latin Kings is not required, the State relies on People v. Wright, 2017 IL 119561. The State maintains that, as in Wright, it is not constrained by the statutory requirements regarding the proof necessary to establish an element of defendant's offense. We find, however, that this case does not establish an exemption from proving statutory requirements.

         ¶ 44 In Wright, the State had to prove that the defendant or someone he was accountable for was armed with a firearm as defined by statute, which defined a firearm, in pertinent part, as" 'any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas' but specifically excluding, among other items, any pneumatic gun, spring gun, paint ball gun, or BB gun." Id. ¶ 71 (quoting 430 ILCS 65/1.1 (West 2012)). The court held that the jury was entitled to believe the testimony of three lay witnesses who observed "a semiautomatic," "an 'actual firearm, '" "the handle of a gun in the waistband of his pants," and "a 9 millimeter pistol." Id. ¶ 76. The testimony was sufficient to find the codefendant was armed with a firearm during the commission of the robbery, and thus, defendant was guilty beyond a reasonable doubt. Id. ¶ 77. The State observes that, in Wright, it was not required to present evidence that the firearm used in the crime met the technical statutory definition of a firearm in all respects. The State contends that, as in Wright, it should not be required to prove its case with a particular type of evidence.

         ¶ 45 We find this argument unavailing, as Wright is clearly distinguishable. In Wright, there were three eyewitnesses testifying to characteristics of a physical object. Id. ¶ 76. By contrast, in the case at bar, a street gang as defined by the Act requires proof of each element codified in the statute, but there was no witness testimony providing evidence to prove the Latin Kings meet the statutory definition of a street gang. Accordingly, we reject the State's assertion that Wright supports the argument that it is not required to present evidence of specific crimes committed by the Latin Kings in the relevant time period.

         ¶ 46 B. Defendant's Own Crimes

         ¶ 47 The State alternatively contends that, if proof of specific crimes were required, it presented evidence of a "course or pattern of criminal activity" through defendant's own crimes. The State maintains that the jury heard evidence of two or more "gang-related" offenses occurring on the day of the murder. The State relies on defendant's convictions for first degree murder and aggravated unlawful use of a weapon, maintaining that the crimes were "gang-related" as defined by the Act. 740 ILCS 147/10 (West 2012).

         ¶ 48 The Act provides that "gang-related" means any criminal activity directed by any gang leader or authority with the intent to (1) increase the gang's size, membership, prestige, dominance, or control in any geographical area or (2) provide the gang with any advantage in a criminal market sector or (3) exact revenge ...


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