{ "id": 3607662, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ANDERSON, Defendant-Appellant", "name_abbreviation": "People v. Anderson", "decision_date": "1987-03-13", "docket_number": "No. 85\u20141818", "first_page": "542", "last_page": "550", "citations": [ { "type": "official", "cite": "153 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "354 N.E .2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491325 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0377-01" ] }, { "cite": "424 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 42", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100653 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0042-01" ] }, { "cite": "459 N.E.2d 1018", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 491", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560863 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0491-01" ] }, { "cite": "466 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 489", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633681 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0489-01" ] }, { "cite": "263 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "46 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "424 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 657", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499788 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0657-01" ] }, { "cite": "495 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1981, "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535572 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0626-01" ] }, { "cite": "463 N.E.2d 1326", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "1331" } ], "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 222", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3431095 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0222-01" ] }, { "cite": "457 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "98 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121913 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/98/0439-01" ] }, { "cite": "272 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 722", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2474043 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0722-01" ] }, { "cite": "357 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1971, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815217 ], "weight": 4, "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0043-01" ] }, { "cite": "427 N.E.2d 1328", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "1332" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080567 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "243-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0238-01" ] } ], "analysis": { "cardinality": 935, "char_count": 19522, "ocr_confidence": 0.787, "pagerank": { "raw": 1.1899373893936216e-07, "percentile": 0.5911705663148701 }, "sha256": "714e0a49cb6b38962eb0279ef216b95f63959d6c9ed725f7923dda514959c8e7", "simhash": "1:03cc34d26ba7d5e7", "word_count": 3321 }, "last_updated": "2023-07-14T16:39:45.296283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ANDERSON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was convicted of murder and sentenced to a term of 30 years. On appeal, he contends that (1) the trial court erred in (a) admitting evidence concerning gang activity and his affiliation therewith; (b) giving, over his objection, Illinois Pattern Jury Instruction, Criminal, No. 2.04 (2d ed. 1968), referring to his failure to testify; (2) he was denied a fair trial by (a) the State\u2019s use of rebuttal testimony as substantive evidence; (b) the ineffectiveness of his counsel; and (3) the trial court abused its discretion in imposing sentence.\nThe charges arose from the death of Keith Jordan on January 25, 1984, which, according to Medical Examiner Robert Stein, resulted from a skull fracture and attendant subdural hematoma caused by a trauma to the head with a blunt instrument. At trial, Juanita Toomer testified that at about 5:30 a.m. on Sunday, January 22, 1984, she was walking on the east side of Pulaski Avenue near 16th Street in Chicago when she heard someone cry out, \u201cOh, God, someone help me, please.\u201d She looked across the street and saw two men, who appeared to be about 6 feet 1 inch and 6 feet 3 inches tall, respectively, chasing a third man \u2014 later identified as Keith Jordan. When Jordan, who had been running in a slightly crouched position, stumbled and fell, the other two men began to kick and beat him. Moments later, a fourth man, who was approximately 5 feet 4 inches tall \u2014 which defense counsel agreed is defendant\u2019s approximate height \u2014 ran from the middle of the street between some parked cars and joined the taller men, one of whom repeatedly struck Jordan with an 18- to 24-inch metal pipe. At that point, she screamed, whereupon the three men stopped, looked toward her, and then ran in the opposite direction (north) on Pulaski Avenue. When she walked up to Jordan, who was lying on the ground and had blood on his face and hands, he grabbed her coat sleeve and asked her to call the police. One of the three assailants then said, \u201cLet\u2019s get her,\u201d upon which she ran to a restaurant, told a waitress what she had seen, and asked her to call the police. She remained at the restaurant until the police arrived and although she was very upset, she reported to them what had occurred and shortly thereafter accompanied them to Mt. Sinai Hospital. After identifying photographs of Jordan and the scene where the beating occurred, Toomer stated on cross-examination by defendant\u2019s attorney and by counsel for code-fendant, Larry Glaseo, that she was about 40 feet from the group of men; that the short man did not have anything in his hands when he ran across the street toward the others; that she did not notice anyone in the group carrying a stick; that she knew Glaseo for about 13 years; that he was about the same height as the taller men; and that although she saw the faces of the three assailants, she did not recognize any of them.\nChicago police officer Lynn Kennedy testified that at about 6 a.m. on January 22, 1984, she and her partner responded to a call of \u201ca man down\u201d near 16th Street and Pulaski Avenue, but when they arrived at that location, they did not see anyone. They proceeded to a nearby restaurant where they spoke with Juanita Toomer, who was visibly upset and crying. She accompanied them to the scene of the incident, where they noticed a man slumped over in a doorway. There was considerable blood on his face and the only words he spoke were, \u201cHelp me, please.\u201d On cross-examination, Officer Kennedy stated that in response to their questions at the hospital, Toomer \u2014 who was still extremely agitated \u2014 said that only two men were involved in the offense and that neither had kicked Jordan but, rather, had beaten him with what appeared to be some type of pipe.\nJoseph Anderson, who is not related to defendant, testified that after leaving his job at a suburban restaurant at about 2 a.m. on the night in question, he went to a friend\u2019s house near 14th Street and Avers Avenue, where he remained until 5:30 or 6 o\u2019clock. As he approached Harding Avenue on his way home, he heard voices from a porch on the southwest side of the street shouting \u201cOutlaw Soul Brothers,\u201d and \u201cfolks popping, people dropping,\u201d which he knew to mean that the Outlaw Soul Brothers street-gang members were fighting with the Vice Lords, a rival street gang. Being a member of the Vice Lords, he at first presumed the gang slogans were directed toward him, but then saw Keith Jordan, a fellow member of the Vice Lords known as \u201cChip,\u201d walking northbound on Harding Avenue. There were about four men on the porch, and as Jordan approached they shouted again and gestured, by means of hand signals known among gang members, that they were Outlaw Soul Brothers and \u201cVice Lord killers.\u201d When Jordan returned a signal indicating that he was a Vice Lord, the four men came off the porch and began chasing him. Anderson recognized defendant \u2014 whom he knew only as \u201cKeno\u201d \u2014 and Glaseo as two of the pursuers and also saw that defendant was carrying what looked to be a pipe and Glaseo was holding a stick. After running only a few feet, Jordan slipped and fell, whereupon the men surrounded him and defendant and Glaseo began swinging the pipe and stick down toward the ground. Jordan managed to get up, but defendant immediately hit him in the back of the head with the pipe, causing him to fall again, following which the men encircled him and resumed swinging at him with the pipe and stick. At that point, he (Anderson) ran south toward 16th Street, where he met two strangers whose help he solicited, but by the time they returned to the scene of the incident, armed with bottles and sticks, no one was there, which led him to believe that Jordan had escaped. The following Wednesday, he heard that Jordan was hospitalized, but it was not until a few days after learning that Jordan had died that he called Chicago police officer Earl Pickett to report what he had witnessed. After a conversation with Pickett, he identified photographs of defendant and Glaseo as two of the assailants and also identified both of them a few days later in a lineup. He acknowledged that charges for possession of marijuana were pending against him, but stated that no offers of leniency in connection therewith had been made in exchange for his testimony.\nOn cross- and redirect examination, Anderson further testified that each gang controlled certain \u201cterritory\u201d into which rival gang members generally were not allowed to intrude; that the area where the beating occurred was controlled by the Outlaw Soul Brothers; that as the Vice Lord\u2019s \u201cminister of justice,\u201d he met with the other high-ranking officers once a week to discuss gang-related matters and was responsible for resolving internal gang problems and for determining appropriate punishments for violations of the gang\u2019s codes and ethics, but that he resigned from that position and moved away from the neighborhood about three months after this incident; that he did not come to Jordan\u2019s assistance because he knew that he too would be beaten, nor did he subsequently tell the other officers of the Vice Lords what he had seen because he feared retribution by them for violating the oath all members took to assist fellow members \u201cin trouble\u201d with rival gangs. He conceded that, at first, he told Pickett that the incident had occurred between 3:30 and 4 a.m., explaining that he did not want his wife to know that he had spent most of the night at his girlfriend\u2019s house after leaving work. He also acknowledged having been convicted of robbery, aggravated battery, and unlawful restraint, for which he was on probation.\nOver objection, Officer Patrick Hackett, assigned to the gang-crimes unit, testified that in a conversation with defendant following his arrest for disorderly conduct in October 1982, defendant told him that he was a member of the Black Outlaw Soul gang \u2014 another name sometimes used by the Outlaw Soul Brothers \u2014 and that his street nickname was \u201cKeno.\u201d At that time, Hackett also observed the insignia of the Outlaw Soul Brothers tattooed on defendant\u2019s arm. Officer Gerald Johnson, a gang-crimes specialist, was called to testify concerning area street-gang activities in general.\nDetective Angelo Rinchiuso testified that he and his partner arrested defendant and Glaseo on January 30, 1984, and after conversations with them, placed them in a lineup with six other men.\nIn defense, Glaseo called various friends and relatives, all of whom testified that he was at home with them on the night in question, and also took the stand in his own behalf, testifying both to his alibi and that neither he nor any of his friends were gang members. Defendant also presented several alibi witnesses who stated that he was with them at the time in question, but he did not testify in his own behalf.\nAfter both defendants had rested, Detective Rinchiuso was recalled and testified in rebuttal that in conversations following his arrest, defendant initially denied any knowledge of the murder, but later stated that although he had not been involved, he had witnessed it, explaining that he had seen Jordan \u2014 known to him only as \u201cChip\u201d\u2014 when he and several friends went to a liquor store and nearby lounge earlier Saturday evening; that much later that night he and his companions gathered on a porch and began yelling \u201cOutlaws\u201d; that they eventually left the porch and were walking down Pulaski Avenue when they encountered Jordan, who was drunk; that when Jprdan tried to run away, one of the men, known as \u201cZel,\u201d grabbed him by the sleeve and someone else in the group hit him with a stick; and that when Jordan fell, he (defendant) left the scene.\nOpinion\nWe first consider defendant\u2019s contention that the trial court committed reversible error in giving, over his counsel\u2019s explicit objection, Illinois Pattern Jury Instruction, Criminal, No. 2.04 (2d ed. 1968) (hereinafter IPI Criminal 2d), which reads:\n\u201cThe fact that a defendant did not testify should not be considered in any way in arriving at your verdict.\u201d\nThe committee note following IPI Criminal 2d No. 2.04 states:\n\u201cThis instruction should be given only at the defendant\u2019s request and then, it must be given.\u201d (Emphasis in original.)\nAs reflected in the language of the committee note, it has been recognized that while this instruction is intended to benefit a defendant by cautioning the jury not to infer guilt from his failure to testify, it might, on the other hand, have the negative effect of calling the jury\u2019s attention thereto. Courts have therefore held that the choice of whether the instruction will be used is the defendant\u2019s and that the giving of it over his objection is error. (People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328; People v. Lee (1976), 44 Ill. App. 3d 43, 357 N.E.2d 888; cf. People v. Gibson (1971), 133 Ill. App. 2d 722, 272 N.E.2d 274 (the determination as to whether IPI Criminal 2d No. 3.13 \u2014 advising that a defendant\u2019s prior convictions may be considered only insofar as they affect his credibility as a witness \u2014 is beneficial or detrimental to his defense, is the defendant\u2019s prerogative, and the giving of the instruction over his objection is error).) Because of the constitutional implications (People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31; People v. Brooks (1984), 124 Ill. App. 3d 222, 463 N.E.2d 1326), such error requires reversal unless it is determined to have been harmless beyond a reasonable doubt, i.e., that it did not contribute to the conviction. People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328; People v. Lee (1976), 44 Ill. App. 3d 43, 357 N.E.2d 888.\nFor example, in People v. Hicks the court declined to reverse the defendant\u2019s conviction, finding that because he had moved for a directed verdict at the close of the State\u2019s case, the \u201cimpact on the jury of [his] failure to present any evidence could not have been lost\u201d and that in view of the overwhelming evidence of his guilt, the giving of the instruction over his objection was harmless error. (People v. Hicks (1981), 101 Ill. App. 3d 238, 243-44, 427 N.E.2d 1328, 1332.) In People v. Brooks (1984), 124 Ill. App. 3d 222, 463 N.E.2d 1326, two defendants were tried jointly for murder and neither testified in his own behalf. At the instruction conference, a disagreement arose concerning the giving of IPI Criminal 2d No. 2.04, which was tendered by the co-defendant and objected to by defendant Brooks. On appeal, the court noted that the possible conflict between the codefendants regarding the giving of IPI Criminal 2d No. 2.04 had not been raised in the pretrial motion for severance and held that because under the holding in People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31, the trial court\u2019s refusal to give it would have constituted reversible error with respect to the codefendant who had requested it, the giving of it over defendant Brooks\u2019 objection was not error. 124 Ill. App. 3d 222, 227-28, 463 N.E.2d 1326, 1331.\nIn contrast, the error in giving IPI Criminal 2d No. 2.04 over objection was found to be reversible in People v. Lee (1976), 44 Ill. App. 3d 43, 357 N.E.2d 888. There, seven codefendants were tried jointly on charges arising from a tavern brawl. All three of the defendants who did not testify in their own behalf objected to IPI Criminal 2d No. 2.04 when it was tendered by the State. On appeal, the court held that the trial court erred in giving the instruction over their objections and, finding that the evidence was not so clear and convincing or proof of guilt so overwhelming as to render the error harmless, reversed their convictions and remanded for a new trial.\nTurning then to the instant case, we note that when the State tendered IPI Criminal 2d No. 2.04 at the instruction conference, defense counsel objected to it on his belief that it would prejudice defendant by calling attention to the fact that, unlike Glaseo, he had declined to testify in his own behalf and thereby would penalize him for exercising his fifth amendment rights. In overruling the objection, the trial court reiterated the position it took on defense counsel\u2019s earlier objection to IPI Criminal 2d No. 1.02 \u2014 which includes a clause referring to the weight to be given a defendant\u2019s testimony \u2014 commenting that where two defendants are charged with the same crime, the fact that a defendant chose not to testify does not preclude the court from submitting the instruction. From its remarks, it is apparent that the trial court based its ruling on the fact that the case involved a codefendant (Glaseo). We note, however, that unlike the codefendant in Brooks, Glaseo did take the stand in his own behalf. Therefore, the instruction was wholly inapplicable to him and could only have been taken by the jury as a reference to defendant\u2019s failure to testify. As such, the giving of it over his objection was error. Thus, the remaining question is whether that error, when viewed in the context of the trial as a whole, was harmless beyond a reasonable doubt.\nPreliminarily, we note that defendant does not contend, nor do we believe, that the evidence presented was insufficient to support his conviction. In any event, the question is not whether the evidence was sufficient to sustain the jury\u2019s verdict but, rather, whether it can be said that the error in giving the instruction could not have contributed to it. People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328; People v. Lee (1976), 44 Ill. App. 3d 43, 357 N.E.2d 888.\nUpon our careful review of the record, we are unable to state that the evidence admitted at trial was so overwhelming that the error in giving this instruction could not have contributed to the guilty verdict. For this reason, defendant\u2019s conviction for murder must be reversed and the cause remanded for a new trial.\nIn the light of this determination, we need not address those of defendant\u2019s contentions relating to the effectiveness of his counsel or the sentence imposed at the initial trial.\nDefendant also contends, however, that he was denied a fair trial by (1) the admission of irrelevant and prejudicial evidence regarding (a) the activity of local street gangs .and (b) his affiliation therewith, presented through the testimony of gang-crime Officers Johnson and Hackett, respectively, and (2) the State\u2019s use of Officer Rinchiuso\u2019s rebuttal testimony concerning his post-arrest statement as substantive evidence.\nAs with the issues mentioned above, we are of the opinion that in view of our judgment that this case should be remanded for a new trial, it is not necessary for us to decide whether the evidence challenged by defendant was properly admitted and/or used at the trial from which this appeal is taken. Furthermore, we believe that any gratuitous discussion thereabout on the basis of the record before us would be inappropriate since it is impossible to know whether or in what context the evidence at issue might be offered on retrial. Recognizing, however, that these or similar evidentiary questions may arise at a future trial, we offer the following guiding principles.\nWith respect to the officers\u2019 testimony relating to gang activity and defendant\u2019s membership in the Outlaw Soul Brothers, this court has held that the determination of whether a witness is qualified to testify as an expert on street gangs lies within the discretion of the trial court (People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207; People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671); that proof of gang membership is relevant and admissible where there is sufficient proof of a relationship between such affiliation and the crime charged, e.g., to show a motive or common purpose (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840; People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207; People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671); and that where its relevance is so established, such evidence need not be excluded merely because of its tendency to prejudice the defendant People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840; People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207; People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671.\nIn this regard, we note that an admission is any statement of fact by a party which, when taken in connection with other facts in evidence, permits an inference of guilt of the offense charged; and any admission by a defendant, even if intended to be exculpatory, is admissible as substantive evidence for the purpose of showing guilt. People v. Lippert (1984), 125 Ill. App. 3d 489, 466 N.E.2d 276; People v. McDowell (1984), 121 Ill. App. 3d 491, 459 N.E.2d 1018; People v. Burns (1981), 99 Ill. App. 3d 42, 424 N.E.2d 1298; People v. Ellis (1976), 41 Ill. App. 3d 377, 354 N.E .2d 369.\nFor the reasons stated herein, defendant\u2019s conviction is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nLORENZ and MURRAY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Steven Clark and Sue Augustus, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Christopher J. Cummings, and Michael J. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ANDERSON, Defendant-Appellant.\nFirst District (5th Division)\nNo. 85\u20141818\nOpinion filed March 13, 1987.\nSteven Clark and Sue Augustus, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Christopher J. Cummings, and Michael J. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0542-01", "first_page_order": 564, "last_page_order": 572 }