FIRST DIVISION	

							December 26, 2000		 					

No. 1-98-3648

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellee,			)	Cook County

								)

	v.							)	96 CR 2212

								)

ROY FLUKER,						)	Honorable

								)	James Schreier,

		Defendant-Appellant.		)	Judge Presiding

	PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

	Once again we must decide whether a prosecutor's closing

argument requires reversal of a murder conviction.  We find that

the argument here improperly directed the jury's attention away

from the issues.  Because we find the evidence closely balanced,

we cannot consider the error harmless.  Thus, we reverse and

remand for a new trial.

	Around 10 p.m. on November 15, 1995, Charinida Willford sat

on the steps of a house near her home, talking with Tasha Stinson

and some other friends from the neighborhood.  A bullet from

across the street passed close by Stinson's head, and a shotgun

blast killed Willford.  Stinson told police she saw two black men

dressed in black in a gangway across the street.  She did not

further describe the men.  Police found spent cartridges in the

gangway, but not outside the gangway.

	About a month later Detective Richard Curley interviewed Tyrone Baldwin concerning an unrelated matter.  Following that

interview, Curley went to see Stinson.  She told him she saw the

two shooters come out of the gangway before they began shooting. 

She had seen one of the men several times in the neighborhood. 

When Curley showed her an array of photographs, she chose a

picture of defendant Roy Fluker.  Later, she identified defendant

in a lineup as the person she saw shooting a handgun on November

15, 1995.  Police then charged defendant with the first-degree

murder of Willford and the attempted murder of Stinson.

	In discovery defense counsel learned that, before Curley

went to interview Stinson, Baldwin had identified defendant as

the shooter.  Some months later Baldwin went to the office of the

public defender, where he wrote out a statement concerning his

conversation with Curley.  He denied making any identification of

the shooter, saying that he did not see who shot the guns.  He

said Curley asked him if he knew that defendant had shot

Willford, and Baldwin told Curley he did not know that.

	At trial Stinson testified that she, Baldwin and Willford

were talking with Donald and Derrick Acker and two other persons

outside on November 15, 1995.  When she saw a red beam land on

her she immediately got down to the floor of the porch, just as

the shooting began.  She said she did not look to see where the

beam came from.  But later during the questioning she said that,

before she got down, she looked up and saw two men dressed in

black, one holding a handgun, in the gangway across the street.  She admitted that she told Curley she had seen defendant

shooting.

	Stinson testified that after the shooting she and Baldwin

saw a white Oldsmobile less than a block away.  She had

previously seen defendant driving that car.  At first she said

that she never told police the man she had seen in the car was

the same as the man she saw shooting, but later she contradicted

that testimony.  She said she did tell police the man she had

seen in the car was the same as the man she saw shooting.

	The prosecuting attorney, Laura Morask, asked Stinson

whether she had refused to come to court at an earlier stage of

the proceedings.  Stinson admitted that she had not come, because

her "life could be in danger."  Some people she saw on the street

asked her if she was going to testify against defendant.  She

told them she would not.  She testified that she told the truth

in her written statement to police; in that statement she said

she saw defendant shoot at her group.

	At the conclusion of cross-examination, the court asked for

clarification:

		"Q.	To be clear, is it your testimony today that you saw or did not see the defendant Roy Fluker at or

in the gangway where the shooting came from?

		A.	Did not see.

		Q.	Did not see.  Secondly, is it your testimony today that you saw or did not see the defendant Roy Fluker at or in the white Oldsmobile on the night of

the shooting?

		A.	I did not see him in the white Oldsmobile, true, or did not shoot."

But on further examination by the prosecutor, Stinson reiterated

that she told Curley the truth.  She said she saw defendant

outside on the night of the shooting, but she did not remember

where.  The prosecutor reminded her of what she told Curley. 

Stinson answered that she could not say whether she saw defendant

shooting.  The court asked her why.  She said, "I have kids that

live there."

	An assistant State's Attorney testified that he spoke with

Stinson before trial.  She said she told Curley the truth, but

she said that she would not identify defendant at trial as the

shooter because, in the assistant State's Attorney's words, "she

has three children; two of the children from three separate

fathers, and two of the fathers have been killed already from

gang violence and there is no way that she was going to

jeopardize the life of her other children to identify [defendant]

in court."  The assistant State's Attorney clarified that Stinson

said she "was afraid of Roy Fluker or the people that he knows

and associates with directly coming to her family and putting

harm to her family."

	A police officer testified that in November 1995 the Unknown

Vice Lords were rivals of the Four Corner Hustlers in a struggle for control of areas for sales of narcotics.

	Baldwin testified that he and the Acker brothers belonged to

the Unknown Vice Lords, rivals of the Four Corner Hustlers.  He

saw the red beam coming from the gangway, then he saw two men in

the gangway.  One man looked like defendant, but Baldwin said

that the man was "just a look alike."  He saw the man come out of

the gangway holding a handgun, along with another man holding a

shotgun.  Baldwin ran, looking back, as the men started shooting. 

On cross-examination Baldwin agreed that the man he saw holding a

handgun "looked like Roy but wasn't Roy."

	On direct examination Baldwin swore that about a half hour

after the shooting he and Stinson saw a white Oldsmobile parked

in the area.  Defendant and another man approached the car.  The

other man broke the window, then defendant got in the car and

drove off.  Baldwin had never seen defendant drive that car

before.

	Baldwin admitted that he spoke to Curley about a month after

the murder.  After Curley finished interviewing him about another

matter, Baldwin volunteered that he witnessed Willford's murder. 

Baldwin picked defendant's picture from a photo array, and later

he identified defendant in a lineup, as the person he saw shooting

a handgun on November 15, 1995.

	The prosecutor asked Baldwin about the statement he wrote

out for the public defender.  Baldwin said he went to the

defender's office in response to a subpoena, and he stayed in the office for two hours because the attorneys would not let him

leave.  They treated him as though he were on trial.  He wrote

what the attorney wanted so he could leave.  Baldwin admitted

that he did not have the subpoena.  His mother received it and

told him about it.

	Towards the end of his testimony he reiterated that he did

not know who shot at him, but the man looked like defendant.  He

admitted that he told police he saw defendant shooting the

handgun on November 15, 1995.

	Curley corroborated most of Baldwin's trial testimony

concerning their discussion in the police station.  Curley added

that Baldwin told him he knew defendant was a member of the Four

Corner Hustlers, and Baldwin recognized the white Oldsmobile as

defendant's car.

	Curley also recounted his interview with Stinson.  She told

Curley she recognized one of the shooters as a member of the Four

Corner Hustlers.  When Curley showed her the photo array she

immediately selected defendant's photograph, and she identified

him in the lineup as the shooter she saw.  She also told Curley

she saw defendant by the white Oldsmobile about a half hour after

the shooting.

	Following the lineup, Curley asked defendant if he had any

tattoos. Defendant showed him a tattoo of the number 4.  Curley

testified that the symbol indicated membership in the Four Corner

Hustlers.

	Donald and Derrick Acker both testified that they ran once

the shooting began.  They both looked back towards the source of

the gunfire but saw no one – the shots came from inside the gangway.  They were both members of the Unknown Vice Lords, and

Donald admitted that the Four Corner Hustlers sometimes counted

as their rivals.

	An attorney working for the public defender testified that

office records showed the office sent Baldwin no subpoena.  The

attorney spoke with Baldwin at length when he came to the office. 

Baldwin did not ask to leave, no one told Baldwin he could not

leave, and all doors remained unlocked.  Baldwin told the

attorney that the police report misrepresented his conversation

with Curley.  In particular, Baldwin never said he could

recognize either shooter, and he never said he saw defendant

shooting.

	In closing argument defense counsel suggested that Baldwin

may have decided to lead police to suspect defendant, a member of

a rival gang, as a shooter here both to hurt the rival gang and

to curry favor with police.  Baldwin then needed only to persuade

Stinson to help him with the plan.  Stinson feared not only

defendant's gang, but Baldwin's gang, too.  Baldwin recanted at

trial because his conscience bothered him.

	The prosecutor argued in rebuttal:

	"The only issue in this case is not is this a mistaken

identity; do we have the right guy?  That is not the issue.  The only issue is who do you want to control

our criminal justice system?"

The court overruled defense counsel's objection.  The prosecutor

continued:

		"Who do you want to control our society?  Who do

you want to make the laws and to order us to follow the

laws and live in an orderly society?  Do you want the

Judge and you jurors to control our criminal justice

system or do you want Roy Fluker to control the

criminal justice system?  Do you want the people who

pay their taxes, write out their real estate tax bills,

and all of the good citizens who are able to live a

law-abiding life to control society or do you want his

friends; the Four Corner Hustlers to control our

society?"

	Again the court overruled defendant's objection.  So

encouraged, the prosecutor argued:

	"Do you want a society that is ruled by fear and

intimidation; by people that make a mockery of what

should be your job to determine justice and to live in

a law-abiding society? *** [L]etting this guy go

because he was able to instill fear into Tasha Stinson;

letting this guy go because he was able to finagle the

shenanigans with these subpoenas and these mysterious

people popping up here; popping up there; if he's able to finagle all of this, let him go.  Let him walk out

that door and make a mockery of you; a mockery of the

Judge."

To this, the judge sustained an objection and reminded the jurors

that "there has been no direct testimony that Mr. Fluker engaged

in intimidation."

	The prosecutor hypothesized that Baldwin's conscience

bothered him after he saw Willford shot:

	"Not all gangbangers have absolutely no conscience. ***

When gangbangers creep out there under cover of dark

they're not suppose[d] to hit children and innocent

targets.  That even violates their own code."

The court overruled an objection based on the lack of evidence. 

The prosecutor suggested that Baldwin must have been afraid of

testifying, but "he can't show that fear.  A gangbanger doesn't

show fear certainly not in front of rival gangbangers, but it's

also the unwritten code of gang conduct."  Again, the court

overruled an objection.

	The prosecutor continued:

	"[E]ven if you're a rival, you're still violating a

gang rule if you point out a gang member in court."

The court sustained an objection and pointed out that the

prosecutor presented no evidence of any gang rules.

	The prosecutor then discussed the testimony in court of the

Stinson and Baldwin, and the inconsistencies with the out-of- court statements.  She said:

	"What is the defense here?  There is no defense.  Is it

mistaken identity?  Did anybody come on that stand and

say that man didn't do it?"

The judge overruled the objection, but he also reminded the jury

that the burden of proof does not shift to the defense.  The

prosecutor said, "Did you hear Tasha and Tyrone say that is not

the guy?"  After another overruled objection, she said, "They

didn't say that is not the guy at all."

	The prosecutor soon returned to her original theme:

	"The bottom line is who runs this courtroom?

		[Defense counsel]: Objection.

		THE COURT: Overruled.

		MS. MORASK: Do you run it or do they run it?  Do

you want to let him go; let him walk out that door? 

You may as well give him a robe.  You may as well give

him a robe and a gavel and make him a Judge –

		[Defense counsel]: Objection.

		MS. MORASK:  – because he's the arbiter of who's guilty and who's not."

	Although the court sustained the objection, the prosecutor

went on:

		"Well, you know that the Four Corner Hustlers will

control the City as well as all the other gangs if you

allow them to make a mockery of the justice system. *** You can't let them make a mockery of you."

The court again sustained an objection.  The prosecutor concluded

that Willford's mother had to "live each and every day with the

knowledge that her little girl; her twenty-one year old baby,

walked out that door merely to go across the street and ended up

about an hour and a half later lying in an alley riddled with

buckshot wounds *** and said [']I'm not ready to die[']."

	Over defendant's objection, the court instructed the jury:

		"A person who is legally responsible for the

conduct of another may be convicted for the offense

committed by the other person even though the other

person, who it is claimed committed the offense, has

not been prosecuted."

	The jury found defendant guilty of the first -degree murder

of Willford and the attempted murder of Stinson.  After denying

the motion for a new trial, the court sentenced defendant to

concurrent terms of 37 years for the murder and 30 years for the

attempt.

	On appeal defendant first contends that Stinson's statements

to Curley cannot be considered as substantive evidence, and thus

the admissible evidence failed to prove the identity of the

shooter.  Section 115-10.1 of the Code of Criminal Procedure of

1963 (725 ILCS 5/115-10.1 (West 1994)) permits the use of prior

inconsistent statements as substantive evidence if "the witness

is subject to cross-examination concerning the statement, and ***  the statement *** narrates, describes, or explains an event ***

of which the witness had personal knowledge, and *** the witness

acknowledged under oath the making of the statement."

	Here, defense counsel ably cross-examined Stinson concerning

her out-of-court identification of defendant as the shooter.  The

statement described the shooting Stinson witnessed.  And, under

oath, she acknowledged that she told Curley the truth about the

shooting.  She even acknowledged that she told Curley she saw

defendant shoot.  Although she equivocated on much of her

testimony, we find sufficient support for the trial court's

decision to permit use of the statements as substantive evidence

that Stinson saw defendant shooting.  See People v. Hastings, 161 Ill. App. 3d 714, 720, 515 N.E.2d 260 (1987).

	When a defendant challenges the sufficiency of the evidence,

this court must defer to the findings of the trier of fact, who

saw and heard the witnesses.  People v. Jefferson, 24 Ill. 2d 398, 402, 182 N.E.2d 1 (1962).  But if the evidence is so

unsatisfactory as to leave a reasonable doubt of the defendant's

guilt, we must reverse the conviction.  People v. Schott, 145 Ill. 2d 188, 206-07, 582 N.E.2d 690 (1991).  For example, the

appellate court reversed the conviction in People v. Ephraim, 133 Ill. App. 2d 310, 273 N.E.2d 225 (1971), because of substantial

inconsistencies in the testimonies of prosecution witnesses, and

because the testimony showed the witnesses had, at best, a

minimal opportunity to view the offender at the crime scene.  There, a key witness testified that he recognized defendant at

the scene, and he knew defendant from the neighborhood.  But the

defense showed that the witness told police at the scene that he

recognized only one of the offenders, and he named someone other

than the defendant.

	Similarly, Stinson here told police at the scene she saw two

black men dressed in black; she gave no further description. 

Other witnesses at the scene, like the other witnesses in

Ephraim, said they had no opportunity to see the offenders.  The location of the cartridges supports their testimony that the

gunmen never stepped forward out of the gangway.  Baldwin at

trial testified that he saw the shooters step forward from the

gangway as they began to shoot.  One looked like defendant, but

Baldwin was not sure who it was.  On a direct question from

defense counsel, Baldwin said defendant was not the shooter.  But

he admitted he told police he saw defendant shoot.

	While this case presents a very close question concerning

the sufficiency of the evidence, we hold that the jury could find

the out-of-court statements of Stinson and Baldwin more credible

than their testimony at trial.  See People v. McBounds, 182 Ill. App. 3d 1002, 1014-15, 536 N.E.2d 1225 (1989).  Out-of-court

identifications alone may establish guilt, even if recanted at

trial.  People v. Bailey, 265 Ill. App. 3d 262, 276-77, 638 N.E.2d 192 (1994).  Stinson and Baldwin looked towards the gangway

at a different angle from that at which the Ackers saw the shooting, and the Ackers had to look backward as they ran away

from the gunfire to see the offenders.  The streetlight could

have given Stinson and Baldwin a brief, but sufficient,

opportunity to see the offenders even if the offenders remained

at the mouth of the gangway.  Accordingly, we hold that the

prosecution presented evidence which could support the

convictions.

	We reverse and remand for a new trial due to the pervasive

misconduct of the prosecutor in rebuttal argument.  While courts

permit prosecutors wide latitude in closing argument, "it is

improper for the prosecutor to do or say anything in argument the

only effect of which will be to inflame the passion or arouse the

prejudice of the jury against the defendant, without throwing any

light on the question for decision."  People v. Smith, 141 Ill. 2d 40, 60, 565 N.E.2d 900 (1990).  Under general ethical

principles,:

	"The prosecutor should refrain from argument which

would divert the jury from its duty to decide the case

on the evidence, by injecting issues broader than the

guilt or innocence of the accused under the controlling

law, or by making predictions of the consequences of

the jury's verdict."  People v. Martin, 29 Ill. App. 3d 825, 829, 331 N.E.2d 311 (1975).

	Here, with the opening thrust of rebuttal argument, the

prosecutor not only failed to throw light on the issues in the case, she actively distracted the jurors from the issues.  The

jury needed to decide, first and foremost, whether Baldwin and

Stinson had an adequate opportunity to see the offender, and, if

so, whether to believe their out-of-court statements naming

defendant as one of the shooters.  But the prosecutor turned the

jury's attention away from the issues in an effort to turn the

case into a referendum on attitudes towards gangs.  She

misinformed the jury:

	"The only issue in this case is not is this a mistaken

identity ***.  The only issue is who do you want to

control our criminal justice system? ***

	* * *

		*** Do you want *** the Four Corner Hustlers to

control our society?"

	The trial court exacerbated the error by overruling

defendant's prompt, appropriate objections.  People v. Kidd, 147 Ill. 2d 510, 544, 591 N.E.2d 431 (1992).  The court's action

reinforced the direction of the jury's attention away from the

identification of the shooter to disapproval of the power of

gangs.

	Similar comments later in the argument, about giving

defendant a robe and permitting him to make a mockery of the

justice system, further misdirected the jury from determination

of the issues.  See People v. Fletcher, 156 Ill. App. 3d 405, 411-12, 509 N.E.2d 625 (1987).  By persisting in the comments even when the court sustained objections, the prosecutor undercut

the salutary effect of those rulings.  Fletcher, 156 Ill. App. 3d at 411.  Also, the evidence provided no support for the

prosecutor's speculation concerning gang rules.  See Martin, 29 Ill. App. 3d at 829.

	The prosecution argues that defendant invited the improper

remarks by suggesting that Baldwin might have decided to name a

plausible member of the rival gang as the shooter, and Baldwin

could have persuaded Stinson to support the identification.  We

do not see how the defense theory of a motive for

misidentification invited the prosecution to direct the jury's

attention away from the issue of identification of the shooter,

and to turn the trial into a referendum on gangs.  The defense

theory concerning the issues in the case did not invite a purely

inflammatory response directing the jury to ignore the issues. 

See People v. Ray, 126 Ill. App. 3d 656, 660, 467 N.E.2d 1078 (1984).

	Defendant also objected to the prosecutor's question, "Did

anybody come on that stand and say that man didn't do it?"  The

judge attempted to clarify that the prosecutor could discuss the

testimony of prosecution witnesses.  But the judge, by overruling

the objection, allowed the prosecution to give the jurors the

impression that defendant should have brought in a witness to say

he was not the shooter, especially because the prosecutor

repeated the comment in various forms after the court overruled the objection.  See People v. Adams, 281 Ill. App. 3d 339, 346, 666 N.E.2d 769 (1996).  The remarks improperly shifted the burden

of proof to defendant.  See Adams, 281 Ill. App. 3d at 346.  Moreover, the prosecutor misstated the evidence when she said the

witnesses never testified that defendant was not the shooter.  In

fact, Baldwin at one point testified that the shooter looked like

defendant, but he was not defendant.  See People v. Linscott, 142 Ill. 2d 22, 38, 566 N.E.2d 1355 (1991).

	The case presented a very close question concerning the

credibility of the out-of-court identifications of defendant as

the shooter.  Considering the cumulative effects of the improper

comments in this close case (see People v. Roach, 213 Ill. App. 3d 119, 125, 571 N.E.2d 515 (1991)), we find that the jury may

have reached a different result without the remarks, so the

improper remarks constituted a material factor in the conviction. 

See People v. Montefolka, 287 Ill. App. 3d 199, 212, 678 N.E.2d 1049 (1997).  Accordingly, we reverse the convictions and remand

for a new trial.

	Defendant raises two further issues whichthat may arise on

retrial.  First, he contends that the prejudicial effect of

evidence of gang affiliation far outweighs its probative value. 

Evidence of gang activity is admissible to provide a motive for

an otherwise inexplicable act, or if it is relevant to any other

issue in dispute, as long as its prejudicial effect does not

substantially outweigh its probative value.  People v. Matthews, 299 Ill. App. 3d 914, 922, 702 N.E.2d 291 (1998).

	Here, three witnesses in the group fired upon admitted that

they belonged to the Unknown Vice Lords, and two of them admitted

the gang had a rivalry with the Four Corner Hustlers.  A police

officer testified that the two gangs competed for control of

narcotics trafficking areas.  Curley identified defendant's

tattoo as an insignia of membership in the Four Corner Hustlers. 

We find the evidence related to the motive for an otherwise

inexplicable act.  It also helped explain Stinson's apparent fear

of testifying.  While the evidence of gang affiliation has

substantial prejudicial effect, it also has substantial probative

value.  The trial court did not abuse its discretion by

permitting the jury to hear the testimony pertaining to gangs. 

See People v. Carson, 238 Ill. App. 3d 457, 465, 606 N.E.2d 363 (1992).

	Finally, defendant contends that the court erred by

instructing the jury that defendant could be legally accountable

for the actions of another person, even if that person "has not

been prosecuted."  On remand the prosecution should present

evidence concerning the status of the investigation into the

identity of the man with the shotgun.  If the evidence shows that

the prosecution has not brought anyone to trial on the charge of

shooting the shotgun blast which killed Willford, the trial court

should repeat the instruction it gave here.  See People v. Spain, 285 Ill. App. 3d 228, 238, 673 N.E.2d 414 (1996).

	The court properly allowed the jury to consider Stinson's

out-of-court statements as substantive evidence that she

identified defendant as the man she saw shooting a handgun when a

shotgun blast killed Willford.  The out-of-court statements

sufficed to support a verdict finding defendant guilty of

attempted murder and as an accomplice to murder.  The trial court

properly admitted evidence of defendant's gang affiliation and

the gang affiliations of persons in the group with Willford,

along with evidence of the rivalry between the two gangs.  But

the prosecutor's extensive improper remarks directing the jury's

attention away from the issues in the case require reversal.

	Reversed and remanded. 

	McNULTY, P.J., with FROSSARD and COHEN, JJ., concur.