Expert Testimony Related to Possession of Firearm by Street Gang Member Insufficient to Meet Statutory Definition of “Street Gang Member”
In People v. Murray, 2019 IL 123289, ¶¶3, 53, the Illinois Supreme Court held that a gang expert’s testimony regarding whether a defendant was a gang member was insufficient because the testimony failed to establish the statutory definition of a street gang member. The defendant was charged with unlawful possession of a weapon by a street gang member (and other crimes that were not the subject of the opinion). The trial revolved around a deadly confrontation at a Belvidere (Boone Co.) gas station between members of the Latin Kings and the Sureno 13 street gangs. 2019 IL 123289 at ¶3.
The state called Belvidere Police Detective Dammon as an expert witness on Belvidere street gangs. Detective Dammon explained his experiences in the gang unit, specialized training and courses that he had taken on street gangs, and training with street gangs in Chicago, Rockford, and Belvidere. Detective Dammon testified that he had been involved in over 400 gang crime investigations and had over a thousand contacts with gang members in Belvidere. 2019 IL 123289 at ¶7.
Detective Dammon also explained how street gangs operate, their hierarchy, and their use of guns for protection. Detective Dammon said that the Latin Kings and Sureno 13’s were the major gangs in Belvidere and that the gangs were rivals. Detective Dammon said that he had contact with the defendant in other gang investigations. 2019 IL 123289 at ¶8.
After being qualified as an expert, Detective Dammon testified that a street gang was defined by Illinois law and had to have one of three things, namely that it is comprised of “two or more people with a recognized hierarchy and leader and their activities are criminal or at least a threat to society.” Id.
Detective Dammon testified that was one type of evidence that gang experts rely on to identify a person as gang member. Detective Dammon also testified that experts also rely on the Law Enforcement Automated Data System (LEADS), Illinois Department of Correction (IDOC) Information System, narcotics cases, notes from interviews, and, in his cases, sheets from the Belvidere Police’s gang databases. Detective Dammon opined that the Latin Kings were a street gang under §10 of the Illinois Street Gang Terrorism Omnibus Prevention Act, 40 ILCS 147/1, et seq. 2019 IL 123289 at ¶26.
At trial, the defendant testified that he was a Latin King member when he was 13 – 21 years old but was no longer a member. The defendant was found guilty of unlawful possession of a firearm by a street gang member. 2019 IL 123289 at ¶¶11 – 12.
The defendant argued on appeal that the state did not prove that the Latin Kings were a street gang under the definition of a street gang in the Act. The unlawful possession of a weapon by a street gang member specifically incorporates this definition (see 720 ILCS 5/24-1.8(a)(1)). 2019 IL 123289 at ¶13.
The Supreme Court noted that the Act defined a “street gang” as “any combination . . . of 3 or more persons with an established hierarchy that, through its membership or the agency of any member engages in a course or pattern of criminal activity.” 740 ILCS 147/10.
After analyzing the Act and the unlawful possession of a firearm by a street gang member statute, the court concluded that in addition to proving that the defendant possessed a gun and was a gang member, the state must also prove evidence of a “course or pattern of criminal activity,” namely, that (1) the Latin Kings (or another gang) were involved with two or more gang-related offenses, (2) that at least one such offense was committed after January 1, 1993, (3) that both offenses were committed within five years of each other, and (4) that at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any felony or forcible felony. 2019 IL 123289 at ¶24.
The Supreme Court found that Detective Dammon’s expert testimony failed to establish that the Latin Kings were a street gang as defined under the Act. 2019 IL 123289 at ¶34. Specifically, the court found that the foundation for Detective Dammon’s opinion — namely, the Belvidere Police Department’s gang database, LEADS, IDOC records, and prior investigations — were insufficient to establish that the Latin Kings were a street gang because he never explained why that information supported his opinion. 2019 IL 123289 at ¶¶26, 31.
Crucial to the court’s opinion was the conclusion that the state did not satisfy the requirements of Illinois Rule of Evidence 705, “Disclosure of Facts or Data — Underlying Expert Opinion,” which provides: The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. The court said that Detective Dammon only broadly described the types of information and facts on which his opinion was based but never explained his reasons as to why that information supported his opinion (i.e., why that information led to his conclusion that the Latin Kings were a street gang). The court went on to say: “Admittedly, Dammon was not obligated to bring forth the underlying facts and data upon which his opinion was premised, but merely identifying the source of those facts and data, without explaining the reasons for his opinion, fails to prove the elements of the offense of unlawful possession of a firearm by a street gang member.” [Emphasis added.] 2019 IL 123289 at ¶31.
The court concluded that Detective Dammon never established the “nexus” between his sources of information that led to his conclusion that the Latin Kings were a street gang engaged in a course or pattern of criminal activity. The court criticized Detective Dammon’s testimony for not connecting his reasons to the defendant to prove that the defendant was a street gang member. 2019 IL 123289 at ¶34.
The court also pointed out that the state never presented evidence regarding the statute’s requirements of two specific crimes committed by the Latin Kings within the relevant time period. 2019 IL 123289 at ¶¶34, 36. The court also ruled that the state cannot use the pending charges against a defendant to establish the “two specific crimes” requirement. 2019 IL 123289 at ¶49.
Justice Kilbride concurred in the judgement but wrote separately to explain that he did not join the majority’s opinion that Ill.R.Evid. 705 required Detective Dammon to articulate the reasons for his opinion. 2019 IL 123289 at ¶57. In Justice Kilbride’s view, the majority’s opinion created tension between Rule of Evidence 705 and the court’s precedent from Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec. 308 (1981) (holding that, in adopting Federal Rules of Evidence 703 and 705, expert can give opinion without disclosing facts underlying that opinion and that burden is on adverse party to elicit those facts on cross-examination). Justice Kilbride noted that neither side mentioned Ill.R.Evid. 705 or Wilson in their briefs and therefore the majority’s discussion about Ill.R.Evid. 705 was unnecessary. 2019 IL 123289 at ¶60. Ultimately, Justice Kilbride wrote that Detective Dammon’s testimony did not establish the specific facts necessary for the state’s prima facie requirements. 2019 IL 123289 at ¶¶62, 64.
Justices Garman, Thomas, and Theis dissented. The dissent stated that Detective Dammon’s testimony was sufficient to establish that the Latin Kings were a street gang 2019 IL 123289 at ¶71 (Garman, J., dissenting). Justice Garman also noted that the majority’s reasoning about Detective Dammon’s lack of testimony about the specific facts showing that the Latin Kings were engaged in a “course or pattern of criminal activity” was in conflict with the court’s precedent in Wilson and Ill.R.Evid. 703 and 705. 2019 IL 123289 at ¶¶73 – 74. The dissent warned that the majority’s opinion could require the introduction of “potentially grossly prejudicial evidence” that invites the trier of fact to determine guilt by association. 2019 IL 123289 at ¶89. The dissent said that once Detective Dammon provided his expert opinion on the street gang element, the burden shifted to the defense to cross-examine Detective Dammon on the facts underlying his opinion under Ill.R.Evid. 705. 2019 IL 123289 at ¶87.
In conclusion, the Murray decision will require more effort by the prosecution to prove that a defendant is a gang member. The prosecution will be required to bring in proof of specific criminal activity by the street gang involved in the case. As the dissent points out, this could be very prejudicial to the defendant, especially if he or she was not involved in the other crimes committed by the alleged street gang. The Murray decision will also make it harder to establish that juvenile gangs and split-off sects of established gangs are in fact “street gangs” if those groups do not have an established record of committing crimes.
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