{ "id": 980687, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD ELLIS, Defendant-Appellant; BERNARD ELLIS, Petitioner-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee", "name_abbreviation": "People v. Ellis", "decision_date": "2000-08-25", "docket_number": "Nos. 1\u201496\u20140804, 1\u201499\u20140105 cons.", "first_page": "1108", "last_page": "1121", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 1108" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "488 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495401 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "40" }, { "page": "273" }, { "page": "290-91" } ], "opinion_index": 0, "case_paths": [ "/us/488/0033-01" ] }, { "cite": "647 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "164 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477048 ], "year": 1995, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0382-01" ] }, { "cite": "601 N.E.2d 1217", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75225 ], "weight": 4, "year": 1996, "pin_cites": [ { "parenthetical": "Nino" }, { "page": "1035" }, { "page": "1036" }, { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/1027-01" ] }, { "cite": "686 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. 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BERNARD ELLIS, Defendant-Appellant.\u2014BERNARD ELLIS, Petitioner-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nA jury convicted defendant Bernard Ellis of the first-degree murder of Gerard Hardy. He was given a 55-year prison sentence. His subsequently filed postconviction petition, after a hearing, was denied. Defendant\u2019s motion to consolidate his direct appeal and his appeal from the denial of the postconviction petition was allowed. Defendant appeals his conviction and sentence, the denial of his motions for a new trial, and the denial of his postconviction petition.\nDefendant raises as issues on appeal whether: (1) a juror should have been dismissed for cause; (2) he was denied his right to a fair trial and due process of law by the State\u2019s knowing use of its two eyewitnesses\u2019 allegedly perjured testimony and other prosecutorial misconduct; (3) he was denied his right to the effective assistance of trial counsel; and (4) he is entitled to a new trial based on newly discovered evidence. Only issue (2) will be addressed in this consolidated appeal in light of the reversal and remandment of the case based upon the determination of that issue.\nOn July 12, 1991, at about 2 a.m., Ramon Bickham, Tony Scales, and Gerard Hardy, the murder victim, were selling drugs at 13th and Wentworth in Chicago Heights, Illinois. Defendant emerged from the passenger side of a brown or orange Cutlass and walked toward the victim\u2019s white Cutlass, parked nearby. Both Bickham and Scales were standing on the corners across the street from the victim and defendant\u2019s parked car, about 15 to 25 feet away. Defendant, dressed in black and wearing a baseball cap, called the victim\u2019s name, the victim turned, and both Bickham and Scales saw or heard a gunshot. The victim fell to the ground. Defendant had been standing about three to four feet away from the victim with his arm extended when he shot the victim once in the head. He shot the gun in the air a few more times, jogged back to the Cutlass, which he entered, and the car left. Both Bickham and Scales later identified defendant as the assailant.\nBickham had seen defendant for several months \u201caround the hood,\u201d knew him as a rival gang member, but never met him. He did not recognize defendant immediately, but did when he walked closer to the victim. Bickham previously had been convicted of possession of a controlled substance and had a current case pending at the time of trial. He asserted that no promises had been made to him regarding his pending case in exchange for his testimony at defendant\u2019s trial. Because he was in shock and scared, Bickham did not tell the police who the shooter was until January 14, 1992, when he was at the Shawnee Correctional Center. Defendant had \u201crank\u201d or \u201cauthority\u201d in the rival gang with which they had problems.\nScales had known defendant previously for 1% years and had seen him around the \u201chood\u201d about 100 times, the first time at a Gangster Disciples or \u201cfolks\u201d meeting in May 1990. He knew defendant had \u201crank.\u201d Scales previously had been convicted of possessing a controlled substance. He testified that he had a case pending at trial time; however, the State made no promises to him in return for his testimony. Scales left the scene when the police arrived because he was scared. He did not tell the police that he knew who the shooter was prior to December 17, 1991, because defendant was still at large. Scales, who was still living in the area, did not want anything to \u201chappen\u201d to him.\nIn November 1991, Anthony Willingham, a former Vice-Lord, and Remone Butler, stood at the corner of 13th and Wentworth, the same corner where the murder took place a few months before, when defendant, whom Willingham knew from the neighborhood, got out of a dark-colored Cutlass and approached them while carrying a machine gun. He either pointed the gun or stuck the gun in Willingham\u2019s side and asked the witnesses the whereabouts of a certain drug dealer, whom Willingham and Butler both knew. Defendant told them that their friend was a \u201cdead man\u201d and that he was going to kill him. He also bragged about having killed the victim and that he had killed or would kill more \u201cniggers.\u201d\nIn court, prior to trial, the defense requested of the State information as to previous written and oral defense inquiries concerning \u201cdiscussions with any of the potential witnesses about any kind of deals regarding their cases in return for [their] testimony,\u201d to which the State responded that, \u201cwith regard to those witnesses, Judge, who have pending cases, there\u2019s been no agreements or promises of any kind with regard to the disposition of their cases.\u201d\nFollowing the instructions conference, closing argument ensued. Defense counsel attacked the credibility of all the State witnesses and argued that defendant was being framed for a murder which occurred due to gang \u201crevenge.\u201d During deliberations, the jurors sent a note stating that they were at a \u201cstandstill.\u201d After consulting with counsel from both sides, they were told by the court to continue deliberating. One and one-half hours later, the jury reached the verdict previously noted.\nDefense counsel moved for a new trial. Defendant also moved, pro se, for a new trial, in part on the ground that defense counsel failed to present evidence that would have exonerated him. The circuit court denied both motions. Following the presentation of aggravation and allocution by defendant, who claimed he was in another state at the time of the murder and that his trial counsel was ineffective in his representation, the court sentenced defendant as first noted. Defendant\u2019s sentence was to run consecutively to the 10-year sentence he had received from the same judge on a prior conviction.\nDefendant filed a notice of appeal and a petition for postconviction relief. During a hearing on the postconviction petition, defendant presented his own testimony, in addition to the testimony of certain witnesses who had provided affidavits in support of his petition, including witnesses who claimed to have been able to provide defendant with an alibi and one, Anthony West, who claimed that he saw the murder, that defendant was not the shooter, yet he was not called as a witness. Defendant also presented the testimony of juror Robert Reed, who had been called into chambers and questioned during trial. Scales testified at the postconviction hearing that his trial testimony, identifying defendant as having shot the victim, was false, induced by Chicago police detective Joe Fiaoni with a promise of probation on criminal charges pending against Scales. This evidence was never refuted by the State; Fiaoni did not testify.\nAt the hearing, the State presented the testimony of the prosecutor who tried the case, as well as the defense attorney who represented defendant at trial. The prosecutor conceded that he \u201cmight have\u201d told Scales that he would speak on Scales\u2019 behalf at his sentencing in exchange for his testimony at the Ellis trial, that he \u201cmight have\u201d said that, but did not make the statement to Bickham until after the trial, and \u201cmost likely\u201d the same was told to Scales under similar circumstances.\nFollowing the hearing, and a review of the petitions by both parties, the appendices, and all trial transcripts, the postconviction judge, who also had served as the trial judge, denied defendant\u2019s postconviction petition. This consolidated appeal followed.\nI\nDefendant contends that he was denied a fair trial and due process of law by the State\u2019s knowing use of perjured testimony and by other prosecutorial misconduct.\nDefendant claims that, at trial, eyewitnesses Bickham and Scales testified that, although they had felony charges pending against them at the time of trial, the State made no promises to them in exchange for their testimony against defendant but that, at the postconviction hearing, Scales admitted that he lied at trial and claimed that Detective Fiaoni had forced him to testify falsely and promised him leniency on pending drug charges in exchange for his testimony against defendant. In addition, defendant asserts, one of the prosecutors admitted that he \u201ccould have\u201d told Scales prior to trial that, if he testified truthfully against defendant, he would make this known to the judge presiding over their pending charges, which he did. As a consequence of the State\u2019s action, defendant alleges, Bickham and Scales received exceedingly lenient sentences, demonstrating that Bickham and Scales perjured themselves at trial and that the State knew that Bickham and Scales failed to disclose these promises under oath and concealed them.\nThe use of perjured testimony to obtain a criminal conviction violates due process of law. People v. Olinger, 176 Ill. 2d 326, 345, 680 N.E.2d 321 (1997) (Olinger). Even where the prosecution does not solicit false testimony, but allows it to go uncorrected when it appears, due process is violated. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177 (1959) (Napue). A conviction obtained by the knowing use of perjured testimony, which reasonably could have affected the jury\u2019s verdict, will be set aside. Olinger, 176 Ill. 2d at 345.\nDuring defendant\u2019s trial, Scales admitted to the jury that he had been convicted of possession of a controlled substance in 1991, 1992, and 1993 and that he had a similar charge and an unlawful use of weapon charge pending, but denied receiving anything in exchange for testifying against defendant. At Scales\u2019 own sentencing hearing, after pleading guilty, Scales reiterated that no threats, force or promises were made to him in order to plead guilty. The transcript from Scales\u2019 plea of guilty reveals that the State represented to the sentencing judge that it had not promised the witness any consideration for his testimony. At the postconviction hearing, the State acknowledged that prior to testifying Scales \u201cmight have\u201d been told that the State would inform the court if Scales had testified truthfully at defendant\u2019s murder trial. Scales was then sentenced to two years\u2019 felony probation, concurrent on both cases, with fines and costs satisfied by the time that Scales had actually served. The sentencing judge stated that \u201cthe only reason I sentenced you to *** [felony] probation *** is *** the representation of the State that you testified truthfully\u201d at defendant\u2019s trial.\nThe other State eyewitness, Bickham, stated at trial that he had been twice convicted of possession of a controlled substance, once in 1990 and in 1991, and that he had a similar case pending. He denied receiving anything in exchange for testifying against defendant. At Bickham\u2019s own sentencing hearing, after pleading guilty, he also stated that no threats, force or promises were made to him in order to plead guilty. The State in Bickham\u2019s case told the sentencing judge that there were no promises or agreements as consideration for his testimony, that Bickham had testified truthfully at defendant\u2019s murder trial, and that \u201c[a]fter the case, [it] indicated to the defendant [Bickham] that [it] would inform the Court\u201d that he testified truthfully. The judge stated that, although it was only a \u201crecommendation,\u201d he decided to \u201cgo along with\u201d the \u201crecommendation\u201d and sentenced Bickham to six months as a condition of one year\u2019s felony probation, terminated satisfactorily instanter, \u201con the recommendation of the State.\u201d The judge stated further, \u201c[n]ormally with a PCS case I give the drug program.\u201d\nAlso to be considered is Scales\u2019 testimony at the postconviction hearing that Detective Fiaoni both threatened him and then offered to help him if he fingered defendant as the shooter and that, as a result, Scales gave perjurious testimony at trial. Two other witnesses, West and Newman, testified to the same alleged improper pressure used by Fiaoni. As previously noted, Detective Fiaoni did not testify at the postconviction hearing, nor does the State argue that Detective Fiaoni made no promises. Assuming Detective Fiaoni made the promises as claimed, whether known or unknown to the prosecutor, \u201ca due process violation occurred *** [since] there was knowledge [of them] by representatives or agents of the prosecution.\u201d People v. Torres, 305 Ill. App. 3d 679, 687, 712 N.E.2d 835 (1999) (Torres); People v. Diaz, 297 Ill. App. 3d 362, 373, 696 N.E.2d 819 (1998) (Diaz); see also Olinger, 176 Ill. 2d at 348; People v. Cornille, 95 Ill. 2d 497, 513, 448 N.E.2d 857 (1983). The prosecution is charged with the knowledge of its agents, including the police. People v. Martin, 56 Ill. 2d 322, 325, 307 N.E.2d 388 (1974). Neither the facts nor the law allows the State to disassociate itself from the conduct of Detective Fiaoni in the present case, and the State is chargeable with this knowledge.\nFrom the foregoing, the State\u2019s intent fairly may be inferred as support for more lenient sentences to be imposed upon Scales and Bickham; and this is exactly what happened. Not only the leniency, but the timing of Scales\u2019 and Bickham\u2019s sentencings supports the conclusion that the State furthered its efforts to sustain its murder case against the instant defendant by assuring the cooperation of the two witnesses. Eight days after Scales and Bickham testified at defendant\u2019s trial, both Scales and Bickham pled out on the same day that the State\u2019s murder prosecutor made his appearance before the judge sentencing Bickham and made the representation previously mentioned. Scales\u2019 sentencing judge said he was accepting \u201cthe recommendation\u201d of the State and this was the reason the judge deviated from his normal sentencing. The combination of lenient sentences and the timing of the sentencing demonstrates that the State knew, or should have known, that the testimony denying any promises or agreements to benefit Scales and Bickham was false and perjurious. The State failed to fulfill its duty to correct any false assertion made by the witnesses denying their expectation of any consideration from the State in return for their testimony. People v. Pecoraro, 175 Ill. 2d 294, 677 N.E.2d 875 (1997) (Pecoraro).\nAlthough the witnesses may not have made \u201cdeals\u201d specifically requiring the State to request leniency in sentencing of their witnesses at their own trials in return for their testimony at the instant trial, the sentencing judge in each witness\u2019 case clearly so regarded the arrangements and the understanding reached was a distinct benefit to them about which the defense and jury previously should have been informed. The State\u2019s agreement with Scales and Bickham did not have to be so specific as to satisfy the requirement of a formal contract. Diaz, 297 Ill. App. 3d at 371. As the supreme court stated in People v. Jimerson, 166 Ill. 2d 211, 227, 652 N.E.2d 278 (1995) (Jimerson), \u201cdue process of law cannot hinge upon such \u2018gossamer distinctions,\u2019 \u201d quoting People v. McKinney, 31 Ill. 2d 246, 250, 201 N.E.2d 431 (1964).\nThe United States Supreme Court observed in Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 360 S. Ct. at 1777, \u201c[t]he jury\u2019s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant\u2019s life or liberty may depend.\u201d That language was quoted with approval in Olinger, 176 Ill. 2d at 345.\nIllinois courts of review have addressed the issue of the obligations imposed upon the State when its witnesses are offered testimony in exchange for some beneficial treatment from the State. In the case sub judice, Bickham and Scales both testified that they received nothing in exchange for their testimony. Yet, the State admits that Scales may have been told by the prosecutor handling the Ellis case before trial that the judge who would sentence him in his own criminal matters would be informed of his cooperation. Evidence of Detective Fiaoni\u2019s alleged conduct and promises of probation stood unrefuted. The sentencing judge in each witness\u2019 case clearly acted on the State\u2019s representations to the benefit of the witnesses.\nIn a case analogous to the case sub judice, People v. Perkins, 292 Ill. App. 3d 624, 686 N.E.2d 663 (1997), two cooperating inmates testified that they observed defendant, a Cook County jail guard, permit another inmate to enter a cell interlock, give him a guard uniform and walk him off the tier. More than a year prior to trial, both cooperating inmates pled guilty to the charges pending against them at the time of the escape. One, Kmet, was sentenced to 8V2 years in prison. Hamilton was sentenced to 12 years in prison. On direct examination, both cooperating inmates were asked, \u201c \u2018[n]ow in exchange for your testimony here today were you made any promises of leniency in order to testify not only today but before a grand jury that you\u2019ve done previously?\u2019 \u201d Both responded \u201c \u2018[n]o.\u2019 \u201d 292 Ill. App. 3d at 627. At the posttrial motion for a new trial, Kmet\u2019s attorney testified that the State had initially offered his client 20 years on his charges, but after the judge was advised of Kmet\u2019s \u201ccooperation,\u201d the judge sentenced Kmet to 8V2 years. Hamilton\u2019s attorney testified that the trial judge in his chent\u2019s case had initially offered him 17 years but after being advised of his cooperation, the judge sentenced Hamilton to 12 years. In reversing, the appellate court held: \u201c[wjhile the colloquy between the State, Kmet, and Hamilton at trial was, as in Olinger, literally true (it is true that no promises of leniency were made by the State in this case), the jury was, nevertheless, misled\u201d (emphasis omitted) citing Jimerson, 166 Ill. 2d at 227 and People v. Nino, 279 Ill. App. 3d 1027, 665 N.E.2d 847 (1996) (Nino). Perkins, 292 Ill. App. 3d at 632.\nIn Nino, a witness, Aldava, was in custody on charges of residential burglary and arson in an unrelated case where he testified for the State in a murder case, \u201c \u2018[t]hey ain\u2019t give me no deal,\u2019 \u201d he was \u201c \u2018hoping\u2019 \u201d to get a deal, \u201c \u2018[b]ut I know I\u2019m not going to get it.\u2019 \u201d (Emphasis added.) 279 Ill. App. 3d at 1035. Aldava testified that he could get anywhere from 4 to 15 years in prison on his charges. The day after the jury convicted the murder defendant, the prosecutor who tried Nino\u2019s case appeared as the prosecutor in Aldava\u2019s case, reduced the charges against Aldava to burglary and Aldava was sentenced to probation. Aldava\u2019s attorney testified at Nino\u2019s posttrial motion for new trial that he had \u201cpreliminary discussions\u201d with the prosecutor about Aldava\u2019s disposition and was told they could talk after Nino\u2019s case was concluded. The prosecutor testified that \u201c \u2018Aldava\u2019s disposition had nothing to do with his testimony in this case. The holding off of his disposition had everything to do with the fact that he couldn\u2019t be a convicted felon at the time he testified, which is another form of impeachment.\u2019 \u201d (Emphasis omitted.) 279 Ill. App. 3d at 1036. The appellate court, with one judge dissenting, reversed Nino\u2019s conviction, concluding that Aldava\u2019s attorney and the State had an unspoken agreement. Nino, 279 Ill. App. 3d at 1041.\nIn Jimerson, defendant Paula Gray had been convicted, along with defendants Rainge, Williams and Adams, of a double murder and rape. Gray was sentenced to 50 years in prison on the murder and rape counts. The conviction was reversed and Gray became a cooperating witness for the State against a newly charged defendant, Jimerson, as well as Williams and Rainge. On cross-examination by Jimerson\u2019s attorney, Gray testified that she had not been promised anything in exchange for her testimony and had not been told that she would get out of jail earlier. At the time of Gray\u2019s testimony against Jimerson, the State had filed a discovery answer to Williams\u2019 and Rainge\u2019s cases revealing that the State had agreed to drop the murder charges if she testified against Williams and Rainge. After testifying against all three defendants, Gray pled guilty to perjury and received two years\u2019 probation. The supreme court reversed Jimerson\u2019s conviction, holding that Gray\u2019s denials of a deal were false and that the failure to inform the defense and the jury of the consideration the witness was to receive violated defendant\u2019s right to due process. Jimerson, 166 Ill. 2d at 230-31.\nFollowing the reasoning of the above-cited authorities, the State\u2019s insistence that it was not required to disclose the promised benefits to Scales and Bickham cannot be sustained. When the State intends to notify a judge who is to sentence a witness with a pending case of that witness\u2019 cooperation, such notification constitutes a benefit to the witness which must be disclosed. This obligation is a continuing one and it is not fulfilled by the State couching its response by saying there is no \u201cdeal,\u201d \u201cpromise\u201d or \u201cagreement\u201d concerning the disposition of the pending charges.\nThe State contends that, under Pecoraro, it did not have to disclose to the jury the fact that the judge sentencing Bickham and Scales would be advised of their cooperation; however, when the State then informs a sentencing court of this type of cooperation from a witness who has criminal charges pending, the purpose of securing beneficial treatment for the witness is patent. The prosecution\u2019s obligation to reveal to the jury the existence of an agreement with a witness arises when the witness falsely testifies on the matter. Pecoraro, 175 Ill. 2d at 313.\nThe facts and circumstances found in this case amply illustrate a problem faced by prosecutors whenever they call as witnesses persons who are themselves charged with criminal offenses. The facts in the present case as well as those in Jimerson, Nino, Perkins, Diaz and Torres all involved instances where witnesses had criminal cases pending at some point during the time they were cooperating with the State and were receiving a benefit in one form or another from the State which was not disclosed to the defense. In none of these cases was the nature of the benefit the witness was to receive ever reduced to writing. This is not to imply that the State is endeavoring to hide the material fact of the benefit; rather, the failure to memorialize these benefits makes it much more likely that their existence would not be disclosed (whatever the motivation on the part of the prosecutors involved) and may encourage benefitting witnesses themselves later to mischaracterize what they were to receive in consideration for their testimony. The position the State finds itself in regarding these situations can be resolved in the future by the simple expedient of memorializing the benefit the witness is to receive and to reveal such circumstances with candor and alacrity.\nThe failure to inform defense counsel and the jury violated defendant\u2019s due process rights. Notwithstanding the fact that the instant trial and postconviction proceedings concluded prior to the Olinger, Perkins, Diaz and Torres decisions, which highlighted the problems presented in the case sub judice, Napue and Jimerson already were in place. The conviction and sentencing appeal in docket No. 1 \u2014 96\u20140804 must be reversed and remanded for a new trial. The denial of defendant\u2019s postconviction petition in docket No. 1 \u2014 99\u2014 0105 was manifestly erroneous, also warranting a new trial. People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063 (1998).\nII\nReversal and remandment are required for additional reasons, emanating from supreme court rule and Brady violations, which will be addressed as part of the prosecutorial approach posed by the facts and circumstances of the present case. Supreme Court Rule 412(c) (134 Ill. 2d R. 412(c)) and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) (Brady), which Rule 412(c) effectively codifies, must be construed to require the State to disclose the existence of any agreement regarding consideration promised a witness in return for his testimony.\nA defendant\u2019s due process rights are violated under Brady where the prosecution suppresses favorable information. People v. Gray, 247 Ill. App. 3d 133, 147, 617 N.E.2d 217 (1993). The defense claims that the State violated defendant\u2019s due process rights here through the knowing use of false testimony. See Olinger, 176 Ill. 2d at 351-52 (considering a Brady argument \u201cclosely tied\u201d to knowing use of false testimony). The State presented testimony that it knew, or should have known, was false. Under Brady, the court reviews the question as whether there is a reasonable likelihood that the false testimony could have affected the jury\u2019s decision. Diaz, 297 Ill. App. 3d at 370.\nIn Diaz, the State argued that the prosecutors were unaware of a plea agreement because other prosecutors had been involved. This court pointed out \u201c[t]o establish a due process violation, the trial prosecutor need not have known that the testimony was false; it is enough that there was knowledge by representatives or agents of the prosecution\u201d (Diaz, 297 Ill. App. 3d at 372), citing Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 108-09, 92 S. Ct. 763, 766 (1972), and People v. Brown, 169 Ill. 2d 94, 660 N.E.2d 964 (1995). Although Brown required an allegation of knowing use of false testimony in order to establish a constitutional violation, by its very nature, the existence of an agreement between the State and a cooperating individual as to the disposition of criminal charges must be known to some member of the State (see Olinger, for a discussion of agreements between multiple law enforcement jurisdictions). Therefore, assuming arguendo that the prosecutors trying the case could prove they were not aware of the agreement or consideration, the knowledge of another State agent nevertheless is imputed to them. This was the factual situation presented in Giglio and the same principle applies here with respect to Detective Fiaoni.\nThe Diaz opinion also cited United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349-50, 96 S. Ct. 2392, 2397 (1976), and United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 492, 105 S. Ct. 3375, 3381-82 (1985), with approval, for holding that \u201ca conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.\u201d Diaz, 297 Ill. App. 3d at 370. The Diaz case further relied upon Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), for its holding that the State has the burden of demonstrating beyond a reasonable doubt that the due process violation did not contribute to defendant\u2019s conviction, stating \u201c[t]he question is not whether admission of the evidence [regarding consideration] would have more likely than not resulted in a different verdict, but whether, in the absence of the evidence, the defendant received a fair trial, which is a trial resulting in a verdict worthy of confidence.\u201d Diaz, 297 Ill. App. 3d at 374.\nA second type of Brady violation is claimed to have occurred here also. Prior to trial, the State falsely denied the existence of deals in response to both a written and an oral request as to any promises or agreements made to or with the witnesses. In situations in which the State fails to respond to a specific request, a conviction must be reversed if the suppressed evidence was material in that it might have affected the outcome of trial. Diaz, 297 Ill. App. 3d at 370. Here, the jury was presented with potentially false testimony of two alleged eyewitnesses. Clearly, this evidence could have affected the judgment of the jury and the outcome of trial. Reversal and remandment for trial are required for these reasons as well.\nIll\nDefendant next argues that the circuit court erred when it allowed the State to introduce improper evidence and argument emphasizing defendant\u2019s alleged gang affiliation and other crimes allegedly committed by defendant, designed to inflame the prejudices of the jury, denying him a fair trial and due process of law. Because this issue may again arise at retrial, it will be considered on its merits.\nDefendant first alleges that, throughout his trial, the State introduced evidence suggesting defendant was a high level gang member with both \u201crank\u201d and \u201cauthority,\u201d as well as evidence of other crimes allegedly committed by defendant, including the testimony of Willingham and Butler that defendant boasted about killing others in addition to the victim in this case.\nDecisions involving the admissibility of evidence rest within the circuit court\u2019s sound discretion and will not be disturbed absent a clear abuse of discretion which results in manifest prejudice. People v. Lucas, 151 Ill. 2d 461, 489, 603 N.E.2d 460 (1992). Gang affiliation evidence need not be excluded if it is otherwise relevant and admissible. People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900 (1990) (Smith). Evidence indicating a defendant was a gang member or involved in gang-related activity is admissible to show common purpose or design, or to furnish a motive for an otherwise inexplicable act. Smith, 141 Ill. 2d at 58. Such evidence is admissible, however, only if sufficient proof reveals that such membership or activity is related to the crime charged. Smith, 141 Ill. 2d at 58.\nIn the instant case, the evidence demonstrates that the victim was shot to death while selling drugs on a street corner in the early morning hours. If not for the testimony of the eyewitnesses, the murder would be inexplicable. Bickham testified that, although he had never met defendant, he knew him from seeing him \u201caround the hood\u201d and from being a rival gang member. Bickham was shocked and scared, and did not tell the police defendant was the shooter until about six months after the murder, because defendant had \u201crank\u201d or \u201cauthority\u201d in the rival gang with which they had problems. Bickham had been selling drugs, as had the victim at the time of the incident. Significantly, on cross-examination, defense counsel asked Bickham if Bickham and defendant were in rival gangs and he replied affirmatively, as he did on direct examination.\nSimilarly, Scales, on cross-examination at trial, testified that he met defendant at a Gangster Disciples\u2019 or \u201cfolks\u2019 \u201d meeting and that defendant had \u201crank\u201d in the gang. Scales explained that he delayed identifying defendant as the shooter because he was at large and the witness wanted \u201cnothing to happen to [him]\u201d; he was scared. Also noteworthy is the fact that, in closing argument, defense counsel presented as defense theory that gang members with rank \u201csurround themselves with people\u201d to do the shootings for them.\nFrom the foregoing, it cannot be said that the circuit court abused its discretion in countenancing evidence of defendant\u2019s gang affiliation here, since it was relevant to the theories of both the State and the defense. Defendant\u2019s reliance upon People v. Terry, 312 Ill. App. 3d 984, 728 N.E.2d 669 (2000), is misplaced. In Terry, unlike the present case, the sole eyewitness\u2019 testimony gave no indication that the murder was gang related, and the evidence of defendant\u2019s guilt was not overwhelming.\nDefendant next claims that the prosecutor improperly and repeatedly emphasized defendant\u2019s gang affiliation during closing argument, going so far as to suggest, without supporting evidence, that defendant\u2019s motive for killing the victim was gang rivalry and drug competition and that defendant had engaged in witness intimidation.\nDefendant\u2019s claim is meritless. A prosecutor is given considerable leeway in closing and rebuttal argument and is permitted to argue the evidence, as well as reasonable inferences drawn from that evidence. People v. Gutirrez, 205 Ill. App. 3d 231, 261, 564 N.E.2d 850 (1990). The character and scope of closing argument are left largely to the circuit court\u2019s discretion and to ensure its proper exercise, every reasonable presumption must be indulged. People v. Morgan, 112 Ill. 2d 111, 131, 492 N.E.2d 1303 (1986). Evidence of gangs and gang membership aptly admitted during trial is subject to comment during closing argument. People v. Nichols, 235 Ill. App. 3d 499, 507, 601 N.E.2d 1217 (1992). Because the admission of gang affiliation was proper in this case, the prosecutor\u2019s remarks were reasonable inferences to be drawn from that evidence.\nThere was sufficient evidence for the jury to have concluded that defendant was guilty of the crimes charged beyond a reasonable doubt, the reversal here being occ\u00e1sioned by unfair trial proceedings; therefore, no double jeopardy implications arise preventing retrial of this case. People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995); Diaz, 297 Ill. App. 3d at 374. See Lockhart v. Nelson, 488 U.S. 33, 40, 102 L. Ed. 2d 265, 273, 109 S. Ct. 285, 290-91 (1988).\nAccordingly, defendant\u2019s conviction and sentence, and the circuit court\u2019s denial of his postconviction petition, are reversed and the cause is remanded for a new trial.\nReversed and remanded for a new trial.\nTHEIS, P.J., and GREIMAN, J., concur.\nBoth Bickham and Scales were repeat offenders; their guilty pleas for drug possession made them eligible to three- to six-year prison terms. See 730 ILCS 5/5 \u2014 5\u20143.2, 5 \u2014 8\u20142(a)(6) (West 1994). Scales pled guilty to unlawful use of a weapon by a felon, for which he could have been sentenced to a term of two to five years. 730 ILCS 5/5 \u2014 8\u20141(a)(6) (West 1994). Neither Scales nor Bickham was given prison time.\nFor example, Scales\u2019 two cases had been pending since September 10, 1992, and January 9, 1993. Throughout 1993, 1994, and 1995, the State made no attempt to prosecute Scales\u2019 cases; instead, the State sought or agreed to 29 continuances of Scales\u2019 unlawful use of weapon case and 27 continuances of Scales\u2019 drug possession case. Three of the continuances occurred on December 4, 5, and 8, 1995, during trial of the instant case.\nScales was sentenced to concurrent terms of probation. One was on an unlawful use of weapons charge resulting from an arrest on September 10, 1992. The other was a drug charge resulting from an arrest on January 9, 1993. Section 5 \u2014 8\u20144(h) of the Unified Code of Corrections (730 ILCS 5/5\u2014 8 \u2014 4(h) (West 1994)) requires consecutive sentences for offenses committed by a defendant while he is on bond or in custody for- another, pending, felony offense. Scales\u2019 sentences therefore violate this provision of the Unified Code of Corrections. This type of sentence for witnesses was condemned by this court in Diaz. As to Bickham, the State recommended that the court sentence him to six months in jail and one year\u2019s probation, terminated satisfactorily instanter. Scales and Bickham each had been to the penitentiary for similar offenses in the past. Based on this record, Bickham and Scales clearly received \u201cbeneficial treatment\u201d from the State in exchange for their testimony.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Jenner & Block, of Chicago (Robert L. Denby, Samuel S. Miller, Marc A. Van Allen, and John T. Ruskusky, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD ELLIS, Defendant-Appellant.\u2014BERNARD ELLIS, Petitioner-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee.\nFirst District (5th Division)\nNos. 1\u201496\u20140804, 1\u201499\u20140105 cons.\nOpinion filed August 25, 2000.\nJenner & Block, of Chicago (Robert L. Denby, Samuel S. Miller, Marc A. Van Allen, and John T. Ruskusky, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1108-01", "first_page_order": 1126, "last_page_order": 1139 }