{ "id": 1026021, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DeANGELO JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "2000-11-15", "docket_number": "No. 1-98-4680", "first_page": "666", "last_page": "677", "citations": [ { "type": "official", "cite": "317 Ill. App. 3d 666" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "726 N.E.2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415390 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/1005-01" ] }, { "cite": "316 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096574 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0272-01" ] }, { "cite": "724 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "189 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224818 ], "year": 2000, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0099-01" ] }, { "cite": "724 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 1601078 ], "year": 1968, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0100-01" ] }, { "cite": "341 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305992 ], "year": 1976, "pin_cites": [ { "page": "669-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0666-01" ] }, { "cite": "467 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596556 ], "year": 1984, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0656-01" ] }, { "cite": "653 N.E.2d 938", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291531 ], "year": 1995, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0130-01" ] }, { "cite": "645 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "163 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477949 ], "year": 1994, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0367-01" ] }, { "cite": "379 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 132", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338202 ], "year": 1978, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0132-01" ] }, { "cite": "402 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "79 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070395 ], "year": 1980, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0129-01" ] }, { "cite": "584 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "145 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596379 ], "year": 1991, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0441-01" ] }, { "cite": "692 N.E.2d 1129", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "\"evidence of other crimes is not admissible if it is relevant merely to establish the defendant's propensity to commit crime\"" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821403 ], "year": 1998, "pin_cites": [ { "page": "282", "parenthetical": "\"evidence of other crimes is not admissible if it is relevant merely to establish the defendant's propensity to commit crime\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0249-01" ] }, { "cite": "141 N.E. 710", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1923, "opinion_index": 0 }, { "cite": "310 Ill. 234", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5109122 ], "year": 1923, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill/310/0234-01" ] }, { "cite": "236 N.E.2d 650", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 Ill. App. 2d 376", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2547836 ], "year": 1967, "pin_cites": [ { "page": "380-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0376-01" ] }, { "cite": "556 N.E.2d 619", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2476151 ], "year": 1990, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0831-01" ] }, { "cite": "704 N.E.2d 816", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352908 ], "year": 1998, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0001-01" ] }, { "cite": "653 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291641 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "725" }, { "page": "725" }, { "page": "725" }, { "page": "724" }, { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0715-01" ] }, { "cite": "728 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411674 ], "year": 2000, "pin_cites": [ { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0892-01" ] }, { "cite": "705 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "184 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926982 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "492" }, { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0486-01" ] }, { "cite": "593 N.E.2d 968", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"Evidence of gang membership may be used to show motive ***\"" } ], "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5219731 ], "year": 1992, "pin_cites": [ { "page": "989", "parenthetical": "\"Evidence of gang membership may be used to show motive ***\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0981-01" ] }, { "cite": "568 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 481", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236590 ], "year": 1991, "pin_cites": [ { "page": "488-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0481-01" ] }, { "cite": "642 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477549 ], "year": 1994, "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0023-01" ] }, { "cite": "565 N.E.2d 900", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238211 ], "year": 1990, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0040-01" ] }, { "cite": "583 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "661 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 811", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172329 ], "year": 1996, "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0811-01" ] }, { "cite": "700 N.E.2d 716", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "\"The plain error rule may be invoked to protect the defendant from serious injustices and to preserve the integrity and reputation of the judicial process ***\"" } ], "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073573 ], "year": 1998, "pin_cites": [ { "page": "727", "parenthetical": "\"The plain error rule may be invoked to protect the defendant from serious injustices and to preserve the integrity and reputation of the judicial process ***\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0725-01" ] }, { "cite": "603 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "151 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291911 ], "year": 1992, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0461-01" ] }, { "cite": "193 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963666 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "222" }, { "page": "224-25", "parenthetical": "positing jury speculation about mug shots \"could have been the difference between conviction and acquittal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0216-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "660 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "year": 1995, "pin_cites": [ { "page": "9-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1209, "char_count": 25595, "ocr_confidence": 0.757, "pagerank": { "raw": 7.581643731236225e-08, "percentile": 0.44940496530878826 }, "sha256": "2896ba7ad999aea9b3e6f8b82ced5a27311ff44c309fadca45d074b7c08c0483", "simhash": "1:822534aceef731d1", "word_count": 4164 }, "last_updated": "2023-07-14T15:16:30.528913+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. DeANGELO JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe defendant claims he was the victim of prosecutorial excess during his murder trial before a jury. He was. He was inaccurately described at trial as a convicted narcotics salesman and a convicted felon. In addition, his failure to testify was argued by inference and his lawyer was referred to as \u201ca professional criminal defense lawyer.\u201d\nBecause the defendant\u2019s lawyer did not make timely objections, and because the evidence was far from overwhelming, we apply a plain error analysis to events at trial. We conclude that serious trial errors, taken in combination, were not harmless beyond a reasonable doubt. We reverse the defendant\u2019s convictions and remand this cause for a new trial.\nFACTS\nAround 4:30 p.m. on August 23, 1996, two young men wearing black sweatshirts fired gunshots into a group of people gathered near a bar on Chicago\u2019s west side. Four people were hit by bullets; three survived. Gary Thomas was killed.\nJohnson and Bernard Williams (Williams) were indicted for first degree murder, attempted first degree murder, aggravated battery with a firearm, armed violence, and aggravated battery. On November 10, 1998, a jury found Johnson guilty of first degree murder and three counts of aggravated discharge of a firearm. The trial court sentenced Johnson to 75 years\u2019 imprisonment: a 45-year sentence on the murder conviction and three consecutive 10-year sentences on the three aggravated discharge of a firearm convictions. This appeal followed.\nDECISION\nJohnson raises five issues on appeal: (1) whether evidence of his gang membership denied him a fair trial; (2) whether veiled evidence he failed a polygraph test denied him a fair trial; (3) whether evidence of his prior arrests and convictions denied him a fair trial; (4) whether the prosecution\u2019s closing argument denied him a fair trial; and (5) whether his attorney\u2019s ineffectiveness denied him a fair trial.\nJohnson\u2019s attorney failed to raise the first three issues in a post-trial motion and did not consistently object in a timely manner. Johnson now attributes these omissions to ineffective assistance of counsel. We need not address Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), because the failure to preserve these issues implicates the plain error rule.\nIllinois courts have consistently held a defendant who fails to raise an issue both at trial and in a posttrial motion forfeits the issue on appeal in the absence of plain error. People v. Keene, 169 Ill. 2d 1, 9-10, 660 N.E.2d 901 (1995); People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124 (1988). Supreme Court Rule 615(a) provides: \u201cPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a). The plain error rule bypasses normal forfeiture principles and allows reviewing court consideration when either \u201c(1) the evidence is closely balanced; or (2) an error is so fundamental and of such magnitude that the defendant was denied a fair trial.\u201d People v. Nelson, 193 Ill. 2d 216, 222 (2000); People v. Lucas, 151 Ill. 2d 461, 482, 603 N.E.2d 460 (1992); see People v. Bunning, 298 Ill. App. 3d 725, 727, 700 N.E.2d 716 (1998) (\u201cThe plain error rule may be invoked to protect the defendant from serious injustices and to preserve the integrity and reputation of the judicial process ***\u201d). But as we said in People v. Rivera, 277 Ill. App. 3d 811, 823, 661 N.E.2d 429 (1996): \u201cWe add this cautionary note: responsible advocacy would not require us to engage in a plain error analysis. Errors that are plain on review ought to be plain at trial.\u201d\nWe believe errors were committed in this case. The jury heard statements and arguments from prosecutors that it should not have heard. These errors implicate fundamental constitutional rights of an accused. But before they may be considered we have to determine whether the evidence is so closely balanced or whether the errors we identify were so fundamental and of such magnitude that the defendant was denied a fair trial. If the evidence is closely balanced, we then would consider whether we could say the errors were harmless beyond a reasonable doubt.\nAt trial, the only eyewitness testimony came from Martin Nash (Nash), a member of the shooting target\u2019s street gang and a convicted felon serving a four-year narcotics sentence at the time of the trial. None of the wounded survivors identified the shooters. Nash testified Chicago police detectives investigating the shooting showed him a group of five photos, and he insisted he identified both Johnson and Williams in this photo array. But Detective Kriston Kato testified the photo array contained only Williams\u2019 photo and agreed Nash identified only Williams.\nAdditionally, the probative value of Johnson\u2019s written inculpatory statement was contested by defense testimony from Dr. Dawna Gutz-man (Dr. Gutzman), a staff psychiatrist at Forensic Clinical Services. Dr. Gutzman asserted Johnson\u2019s low intelligence, reading impairment, and dependent personality cast doubt on his ability to understand and waive his Miranda warnings and made him more susceptible to suggestion than the average person. Cordelia Parker (Parker), Johnson\u2019s special education teacher, also testified for the defense. Parker said Johnson had a fourth-grade reading level at the end of the eighth grade.\nBecause we conclude the case was close, we examine Johnson\u2019s first three issues on their merits. Before turning to these issues, we note: \u201cThe admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court\u2019s decision may not be overturned on appeal absent a clear abuse of discretion.\u201d People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991).\n1. Gang Evidence\nOn September 12, 1996, Johnson signed an inculpatory statement, which Assistant State\u2019s Attorney Susan Ziegler read to the jury:\n\u201cDeAngelo and Bernard were in a car when they saw [Eric Smith,] Puff. When they saw Puff he was with three of his friends one was Elroy. When they saw Puff they decided to go and get guns to teach him a lesson to leave DeAngelo and Bernard alone. Puff was the leader of a gang called the Dog Pound. When DeAngelo and Bernard wouldn\u2019t sell drugs for Puff he threatened them. On Aug 21, 1996 Puff shot Bernard\u2019s house up meaning they [sic] fired 15 shots into Bernard\u2019s house. So on Aug 23, 1996 when Bernard and DeAngelo saw Puff they decided to teach Puff a lesson.\u201d\nBefore trial, the prosecution filed a motion in limine to allow evidence of Johnson\u2019s gang affiliation. The trial court provisionally indicated it would not allow this evidence, but noted it would revisit this ruling during trial if the prosecution showed gang rivalry appeared to be the sole motive for the shooting.\nAt trial, the prosecution called Nash as a witness. Nash testified he was standing in front of a bar with Eric \u201cPuff\u2019 Smith (Smith) and two other men on August 23, 1996. According to Nash, Smith, leader of a street gang called \u201cThe Dog Pound,\u201d saw two young men approaching and said, \u201cMan, look, here come those mother fucker niggers; man, mother fucker travelers.\u201d There was no objection to the hearsay. When the prosecution asked Nash what Smith meant, defense counsel did object.\nIn a sidebar conference, the defense asked for a mistrial. The prosecution explained its view of the gang motive:\n\u201cThe Dog Pound is trying to recruit a couple of Traveling Vice Lords to sell drugs for the Dog Pound. The Dog Pound is a renegade street gang comprised of many different street gangs, most of whom are Vice Lords. He [Smith] tries to recruit two people to come to his gang to sell drugs for him. There may have been a previous altercation, but the retaliation by the Traveling Vice Lords is to get Puff, the leader of the Dog Pound. It is clear it is a gang motive. It is a gang retaliation.\u201d\nThe court overruled the objection: \u201cI will allow the State to continue this line of inquire [sic] on the basis that the statement apparently indicates the reason for their going after Puff. And that being so, if Puff is a member of a different gang as related by this person who knows Puff, I would allow it.\u201d When the trial resumed, Nash said he understood Smith meant members of the Traveling Vice Lords street gang were approaching. Nash testified he later told the police Smith \u201cmight know who they is [sic] because he [Smith] said they was [sic] Traveling Vice Lords.\u201d There was no objection to the hearsay testimony. Smith did not testify at the trial.\nThe prosecution also called Detective Kato as a witness. Detective Kato testified Johnson admitted he was a Traveling Vice Lord during questioning. According to Detective Kato, Johnson said his conflict with Smith began when Smith demanded Johnson and Williams sell drugs for the Dog Pound and they refused: \u201cthat\u2019s why the reason why Puff and the Dog Pound were mad at him and that\u2019s why the Dog Pound had shot at him previously.\u201d\n\u201c[E]vidence of gang affiliation need not be excluded if it is otherwise relevant and admissible. [Citations.] It is generally held that evidence indicating the defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design, or to provide such a motive for an otherwise inexplicable act. [Citations.] Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.\u201d People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900 (1990).\nAccord People v. Colon, 162 Ill. 2d 23, 29-30, 642 N.E.2d 118 (1994); People v. Gonzalez, 142 Ill. 2d 481, 488-89, 568 N.E.2d 864 (1991); see People v. Williams, 228 Ill. App. 3d 981, 989, 593 N.E.2d 968 (1992) (\u201cEvidence of gang membership may be used to show motive ***\u201d).\nIt\u2019s a close call. This case involved personal revenge more than it did gang rivalry, but the prosecution showed gang affiliation may have played a part in the shooting. We cannot say allowing evidence of Johnson\u2019s gang affiliation was an abuse of discretion.\n2. Polygraph Test Evidence\nAt trial, Detective Kato testified Johnson initially denied involvement in the shooting. After Nash identified Johnson and Williams in a lineup, Detective Kato spoke with Williams, who offered an alibi. Detective Kato discussed this alibi with Johnson, and Johnson \u201cstated he was telling the truth and that he requested to be interviewed by another investigator and he suggested that Bernard Williams also be interviewed by another investigator.\u201d Detective Kato scheduled interviews for Johnson and Williams at Chicago police headquarters, but Williams declined the other interview. Detective Kato\u2019s partner took Johnson to his interview, and after Johnson returned to Area 4 police headquarters, the police confronted him with \u201cthe results of his interview downtown.\u201d According to Detective Kato, Johnson immediately agreed to tell the truth and made an inculpatory statement. Defense counsel never objected to this testimony.\nDuring closing arguments, the prosecution discussed Detective Kato\u2019s testimony:\n\u201c[Johnson] knows they are on to him. He knows they are \u2014 it\u2019s starting to stack up against him. One last chance. Let me go downtown. I\u2019ll show you. When he bombs that and he comes back in, he\u2019s confronted vith the results of his interview downtown, he knows it\u2019s over.\u201d\nDefense counsel never objected to this argument.\n\u201c[T]he general rule in Illinois is to preclude introduction of evidence regarding polygraph examinations and the results of those tests.\u201d People v. Jefferson, 184 Ill. 2d 486, 492, 705 N.E.2d 56 (1998); People v. Finley, 312 Ill. App. 3d 892, 895, 728 N.E.2d 101 (2000).\nRecently, our supreme court found a veiled reference to a polygraph examiner was not a trial error: \u201cThe reference to an unspecified technician was sufficiently vague, and it would not have led jurors to any improper speculation.\u201d Jefferson, 184 Ill. 2d at 497. But the court did not preclude finding more extensive veiled references to polygraph testing can deny the defendant a fair trial.\nIn People v. Mason, 274 Ill. App. 3d 715, 725, 653 N.E.2d 1371 (1995), the prosecution told the jury the defendant spoke with a \u201ctechnician\u201d or an \u201cexaminer\u201d at Chicago police headquarters and altered his version of events when he received \u201cthe results of those conversations.\u201d Mason, 274 Ill. App. 3d at 725. In closing arguments, the prosecutor said, \u201cThey [police] take him down to 11th and State and he talks to a technician and lo and behold, he changed his story.\u201d Mason, 274 Ill. App. 3d at 725.\nWe reversed on other grounds, but in dicta, we concluded the prosecution violated the spirit, if not the letter, of an in limine order barring polygraph evidence. Mason, 274 Ill. App. 3d at 724. We noted:\n\u201cEven though the prosecutor and witnesses never said the words \u2018polygraph\u2019 and \u2018lie detector,\u2019 the State successfully signalled to the juiy that the defendant had failed a polygraph examination. As the defendant has argued, jurors are sufficiently knowledgeable through their exposure to crime dramas and to news sources that police sometimes use polygraph examinations to assist them in their investigations.\u201d Mason, 274 Ill. App. 3d at 725.\nBut the prohibition against polygraph evidence is not absolute: \u201cPolygraph evidence may be considered as a factor in determining whether the defendant gave a statement voluntarily.\u201d People v. Montgomery, 302 Ill. App. 3d 1, 11, 704 N.E.2d 816 (1998); see People v. Jackson, 198 Ill. App. 3d 831, 845, 556 N.E.2d 619 (1990). Although the defendant, in calling Dr. Gutzman, seemed to focus on Johnson\u2019s alleged inability to read and understand Miranda warnings and his susceptibility to suggestion, his defense actually hinged on whether his confession was coerced.\nThe defense against the statements is contained in the evidence of Johnson\u2019s reading ability and suggestibility. Defense counsel in closing arguments:\n\u201cYou know what the force of interrogations are like. You have seen it in this courtroom. Who can stand the pressure? They wanted to get a statement out of him, whether he is retarded or whatever. That\u2019s what Miranda is about. Psychological coercion.\u201d\nDetective Kato\u2019s testimony about an interview with another investigator and the results of Johnson\u2019s downtown interview, when coupled with the prosecution\u2019s closing argument that Johnson \u201cbombed\u201d that interview, left a clear inference that Johnson had taken and failed a polygraph test. But this inference was proper where Johnson contended his inculpatory statement was involuntary. The trial court did not abuse its discretion in allowing this evidence.\n3. Prior Conviction Evidence\nBefore trial, the defense filed a motion in limine to bar evidence of Johnson\u2019s prior convictions. In a hearing on this motion, the defense expanded this motion to include evidence of Johnson\u2019s prior arrests.\nAt trial, Dr. Gutzman testified Johnson was unable to understand and waive his Miranda rights because of his low intelligence and his dependent personality. Dr. Gutzman acknowledged, \u201cif an individual had previously been arrested, I would certainly take that into consideration in determining whether they were capable of waiving their rights.\u201d Dr. Gutzman knew Johnson previously had been arrested and assumed he previously had received Miranda warnings, but she could not draw any assumptions from Johnson\u2019s prior experience with the criminal justice system: \u201cThat information certainly is relevant. But is it very significant? No.\u201d There was no evidence Johnson in fact received Miranda warnings during his'prior arrests.\nOn cross-examination, the prosecution asked Dr. Gutzman if she knew Johnson was twice arrested in 1994; she said yes. The prosecution asked Dr. Gutzman if she knew Johnson was twice convicted. The court sustained a defense objection. The prosecution then asked Dr. Gutzman if she would \u201cconsider it relevant if the defendant had previously spent time before the September 1996 arrest in the Department of Corrections.\u201d The court overruled a defense objection, and Dr. Gutzman answered: \u201cWell, it\u2019s relevant but I wouldn\u2019t know what to make of it.\u201d\nOn further cross-examination, the prosecution asked Dr. Gutz-man:\n\u201cQ. He [Johnson] was arrested in 1994 on two separate occasions for selling narcotics?\nA. Okay.\nQ. He was convicted on both of those charges?\nA. Okay.\nQ. Before being convicted on any of those charges, he was sent to court and had a lawyer appointed for him?\nA. All right.\nQ. He had a lawyer represent him throughout the first charge of selling narcotics?\u201d\nBefore Dr. Gutzman could answer, defense counsel objected. The court said, \u201cI don\u2019t know if the witness will be able to answer that. It would be hearsay.\u201d The prosecution continued: \u201cYou are aware that the defendant spent time in custody on those crimes?\u201d The court sustained a defense relevance objection to this line of questioning.\nThe defense opened the evidentiary door to questions about whether Johnson received Miranda warnings during prior arrests. Dr. Gutzman said she knew about Johnson\u2019s prior arrests, assumed he received Miranda warnings, and denied this evidence changed her opinion. The defense, however, did not open the door to questions about Johnson\u2019s 1994 and 1995 delinquency findings in the juvenile court.\n\u201c \u2018There is no question more damaging to a defendant with a jury than one that suggests or intimates that he is a criminal or has been charged with a criminal offense.\u2019 \u201d People v. Harges, 87 Ill. App. 2d 376, 380-81, 236 N.E.2d 650 (1967), quoting People v. Decker, 310 Ill. 234, 243, 141 N.E. 710 (1923); accord People v. Cortes, 181 Ill. 2d 249, 282, 692 N.E.2d 1129 (1998) (\u201cevidence of other crimes is not admissible if it is relevant merely to establish the defendant\u2019s propensity to commit crime\u201d); People v. Thingvold, 145 Ill. 2d 441, 452, 584 N.E.2d 89 (1991); People v. Lindgren, 79 Ill. 2d 129, 137, 402 N.E.2d 238 (1980); People v. Butter, 63 Ill. App. 3d 132, 139, 379 N.E.2d 703 (1978); cf. Nelson, 193 Ill. 2d at 224-25 (positing jury speculation about mug shots \u201ccould have been the difference between conviction and acquittal\u201d). The prosecution failed to show how evidence of Johnson\u2019s \u201cconvictions\u201d related to his ability to understand Miranda warnings. We see no connection. The questions about \u201cconvictions\u201d were unnecessary and unfairly prejudicial.\nAdditionally, the prosecution\u2019s references to \u201cselling narcotics\u201d in its questions and Johnson\u2019s \u201cnarcotics salesman job\u201d during final argument are troublesome. The jury certainly heard no testimony Johnson ever sold \u201cnarcotics\u201d as defined in the Illinois Controlled Substances Act (see 720 ILCS 570/102(aa) (West 1998)), and the record contains no evidence to that effect.\nIn the hearing on Johnson\u2019s motion to suppress his statements, Chicago police officer James Butler testified he arrested Johnson in 1995 for \u201cdelivery of cannabis,\u201d and Chicago police officer Adrian Garcia testified he arrested Johnson in 1994 for \u201cdelivery of controlled substance.\u201d\nThe adult probation department report on Johnson showed a July 25, 1994, finding of delinquency for delivery of a controlled substance and possession of a controlled substance, for which he received one year probation and mandatory counseling, and a March 23, 1995, finding of delinquency for delivery of a controlled substance and violation of probation, for which he received one year probation. Nothing in the record tells us what the \u201ccontrolled substance\u201d was. It was a gross distortion to say Johnson was twice arrested and convicted in 1994 for \u201cselling narcotics.\u201d\nThe Chicago police department criminal history for Johnson, alias Donald Ware, showed March 26 and April 25, 1995, arrests for \u201cManu/ Del Cann.\u201d These cannabis cases were dismissed. The prosecutor, in final argument, referred to Johnson as a \u201cconvicted felon.\u201d Johnson was not a convicted felon. He was a delinquent. See 705 ILCS 405/5\u2014 3(1), 5 \u2014 20 (West 1996).\nAllowing these statements by the prosecution was an abuse of discretion.\n4. Closing Argument\nIn its closing argument, the prosecution said:\n\u201cThere is absolutely no evidence before you to attack the validity of [Johnson\u2019s inculpatory] statement. Nothing. It is uncontested. An attorney can stand before you and argue all he wants about what he wishes the statement to say or what it doesn\u2019t say. But you know what? There is no evidence to contradict the validity of the statement. None.\u201d\nLater, referring to Johnson, the prosecution added:\n\u201cYou know, how dare this guy complain about his rights? What about the rights of Mr. Thomas? Never mentioned anything about those rights. Unfortunately for Gary Thomas, this guy [Johnson] and his partner over here, Bernard Williams, were his judge, his jury, and his executioner. Now this guy [Johnson], without presenting any evidence, wants to complain through his lawyer standing at a podium about his rights.\u201d\nThe defense attorney objected, and the court instructed the jury, \u201cThe Defendant does not have to take the stand in his own defense.\u201d But the judge did not rule on the defense objection. Nor did he instruct the jury to disregard the statement. Undeterred, the prosecution pressed on: \u201cYou know, it never ends. They have no defense.\u201d\nGenerally, the prosecution has wide latitude in fashioning its closing argument, and reversal is unwarranted unless the prosecution\u2019s comments substantially prejudice the defendant. People v. Enis, 163 Ill. 2d 367, 407, 645 N.E.2d 856 (1994); People v. Strong, 274 Ill. App. 3d 130, 139, 653 N.E.2d 938 (1995). Comments implying the jury should penalize the defendant for exercising his constitutional right not to testify (see People v. Ray, 126 Ill. App. 3d 656, 661, 467 N.E.2d 1078 (1984); People v. Johnson, 35 Ill. App. 3d 666, 669-70, 341 N.E.2d 443 (1976); People v. Chellew, 104 Ill. App. 2d 100, 107, 243 N.E.2d 49 (1968)) and comments asking the jury to vindicate the victim\u2019s rights (see People v. Beringer, 151 Ill. App. 3d 558, 563, 503 N.E.2d 778 (1987)) are prejudicial.\nHere, the prosecution improperly commented on both Johnson\u2019s silence and the victim\u2019s rights. The prosecution also commented on Johnson\u2019s defense attorney:\n\u201c[D]o you think that was easy for Martin Nash to be pulled up here from the Department of Corrections and be asked questions by a bunch of lawyers only to have a professional criminal defense lawyer hired to represent one of the two people who almost killed you get up there and ridicule you and belittle you and then stand before a jury and call him a buffoon and a clown. Then we wonder why people don\u2019t come forward.\u201d\nThis court has held references to defense counsel as a \u201cpaid advocate\u201d (People v. Hawkins, 284 Ill. App. 3d 1011, 1016, 675 N.E.2d 642 (1996)) warrant reversal where the evidence is closely balanced. The prosecution\u2019s pejorative reference to defense counsel \u201cdenigrate[d] the assistance of counsel to which the accused is constitutionally entitled.\u201d Hawkins, 284 Ill. App. 3d at 1016.\nThese comments, taken together, ask the jury to penalize Johnson for exercising both his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel. But were these comments, as well as the State\u2019s references to Johnson\u2019s \u201cconvictions\u201d for \u201cselling narcotics,\u201d harmless errors?\nFor the harmless error doctrine to apply, a reviewing court must find, beyond a reasonable doubt, the error or errors did not contribute to the defendant\u2019s conviction. See People v. St. Pierre, 122 Ill. 2d 95, 113-14 (1988), citing Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827 (1967). Errors may be harmless if they did not contribute to the defendant\u2019s conviction or overwhelming evidence supported the defendant\u2019s conviction. See People v. Averhart, 311 Ill. App. 3d 492, 507, 724 N.E.2d 154 (1999).\nEach of the errors we have discussed casts doubt on the fairness of Johnson\u2019s trial. We need not decide whether any one error would result in reversal. \u201cCumulatively, we find that the errors created a pervasive pattern of unfair prejudice to defendant\u2019s case.\u201d People v. Blue, 189 Ill. 2d 99, 139, 724 N.E.2d 920 (2000). Because these errors, taken together, may have contributed to Johnson\u2019s conviction and because evidence of Johnson\u2019s guilt was not overwhelming, we cannot say these errors were harmless beyond a reasonable doubt. See People v. Derr, 316 Ill. App. 3d 272 (2000); People v. Morgason, 311 Ill. App. 3d 1005, 726 N.E.2d 749 (2000).\nFinally, in supplemental briefs, the parties discuss the application of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), to Johnson\u2019s consecutive sentences. Because of our disposition of this case, we do not address the sentencing issue.\nCONCLUSION\nFor these reasons, we reverse the defendant\u2019s conviction. Because we believe this record contains enough admissible evidence to support a conviction on retrial, we remand for further proceedings.\nReversed and remanded.\nHALL, EJ., and BURKE, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, Alan J. Spellberg, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DeANGELO JOHNSON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1-98-4680\nOpinion filed November 15, 2000.\nRita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, Alan J. Spellberg, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0666-01", "first_page_order": 686, "last_page_order": 697 }