Illinois Cases September 30, 2021: People v. Noble

Case Description

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 14 CR 16516 Honorable Thomas J. Byrne, Judge, Presiding.

JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court. Presiding Justice Daniel Pierce and Justice Sheldon Harris concurred in the judgment.

ORDER

SHARON ODEN JOHNSON, JUSTICE

¶ 1 Held: The trial court did not err in allowing a gang expert to testify because a proper foundation was laid for his opinion on street gangs and where defendant was not charged with an offense under the Illinois Streetgang Terrorism Omnibus Prevention Act (Act). Defendant's counsel did not provide ineffective assistance for failing to raise a meritless objection and where defendant did not request review for ineffective assistance of counsel regarding his remaining issues on appeal that were forfeited for failure to preserve them at trial.

¶ 2 Defendant Deonta Noble was convicted of the first degree murder of William Allen (decedent) and aggravated battery of Dejanae Coleman (Coleman) and was sentenced to 31 years in the Illinois Department of Corrections. Defendant was tried alongside codefendant David Radford (codefendant) in simultaneous yet separate jury trials.

¶ 3 On appeal, defendant contends that: (1) the State failed to lay the necessary foundation for Officer Luna's expert opinion about street gangs, and (2) he was denied a fair trial when the State introduced evidence of a music video that defendant appeared in but was unconnected to the shooting in this case. For the following reasons, we affirm.

¶ 4 BACKGROUND

¶ 5 A. Pretrial

¶ 6 On March 24, 2016, defendant filed a motion to bar gang evidence and to bar the State from introducing a music video from YouTube entitled "Crack." In the motion, defendant argued that he believed the State wished to introduce evidence that the offense was gang related, which was tenuous at best and that the proposed expert witness would simply tailor his opinion to the facts of the case. Defendant argued that the only evidence related to gangs was the proposed eyewitness testimony that immediately before the shooting, the shooters allegedly asked the decedent if he was affiliated with a gang. He contends that there was no additional evidence of involvement by defendant, Coleman, or the decedent. Further, there was no evidence from gang members that there was a war going on between rival gangs or that the shooting was retaliatory. Defendant argued that because of the prejudicial nature of gang evidence, the State must demonstrate that gang involvement was related to the crime charged. Thus, defendant sought the exclusion of the evidence, including the expert, because the prejudicial effects outweighed any potential probative value.

¶ 7 Defendant also argued that the introduction of the video wherein he was rapping and making hand signals alongside his codefendant, who was seen with a handgun, was not relevant and too prejudicial. Defendant pointed out that the video had nothing to do with the victims and they were not mentioned or displayed in any way. The video was to further his music career and was not a documentary or commentary related to the instant case. Defendant contended that there was no good faith basis for the State to introduce the video other than to show defendant in a negative light, with a propensity to commit crimes, and therefore should not be admissible.

¶ 8 The State filed a response in opposition to defendant's motion to bar the introduction of the video into evidence. The State argued that the video contained evidence of other crimes, as the video participants rapped about selling crack cocaine and killing people. The State requested leave to admit the video because it was relevant to show the association between the defendant and codefendant, corroborated the eyewitness identification of Coleman, and provided a gang affiliated motive. According to the State, the video also demonstrated an association with the area where the shooting took place because the video was filmed near 81st Street and Exchange Avenue, which was only two blocks away. Additionally, the evidence should not have been excluded because it was relevant and admissible with regard to evidence of other crimes. Hence, the State maintained that the video should be admitted because the prejudicial effect of the video, under an other-crimes analysis, would not substantially outweigh its probative value.

¶ 9 On March 24, 2016, a hearing was held on the motion to bar gang evidence and the State's reciprocal motion to call the gang expert as a witness. Defendant argued against allowing the gang expert because any reference to gangs was prejudicial for a jury and the term "Mafia," which the expert would be testifying about, was ambiguous. Defendant explained that the video that he appeared in was simply performative, and his use of "Mafia" was commonplace. Further, defendant suggested that the State should have provided a reason as to why this was relevant evidence.

¶ 10 However, the State argued that they were seeking to introduce the evidence based on motive and identity. The State insisted that dialogue regarding whether or not the decedent was "Mafia" needed to be explained to the jury by someone who had more knowledge than the average juror. The State acknowledged that they had not filed a proper response to defendant's motion to bar gang evidence or a proper motion to call a gang expert. Consequently, the trial court did not rule on either of the motions and instead continued the proceedings to a later date.

¶ 11 On April 26, 2016, the State filed a motion to call a gang expert at trial. The State argued that the expert, Chicago police officer Mark Reno, would testify regarding how the shootings were gang-related; the meaning and significance of the question "are you Mafia," that was posed to the decedent; the significance of the location of the crime; and the motive of defendants. Additionally, the State maintained that Officer Reno could explain certain specific aspects of the video that corroborated gang association including defendant and codefendant's association with the gang The 3B's , their association with each other, the location of the video, and the motive of defendant and codefendant's conduct. The State also noted that this was the first time they sought to have Officer Reno declared as a gang expert in any case.

¶ 12 On July 26, 2016, the trial court heard additional arguments from the parties. The State argued that the gang expert should be allowed because the jury needed context to the evidence that they would be given, specifically, in reference to what the word "Mafia" meant. The State reasoned that Officer Reno was familiar with the area, the involvement of the gangs, and the petty disputes between the gangs on a block to block basis. Defendant, however, contended that the "Mafia" language did not pass the materiality and reliability test because the word "Mafia" was not exclusively used by gang members. Defendant argued that the expert witness should not be allowed because an officer's authoritative influence is prejudicial. Additionally, the evidence Officer Reno would testify to was not included in any of the police reports.

¶ 13 Ultimately, the trial court determined that the gang evidence was relevant as to motive because the dialogue in question centered around whether or not decedent was "Mafia." The trial court found that Coleman would most likely testify to the use of the word "Mafia" in order to recount the events of the night in question and therefore it would be appropriate for the State to explain what that reference meant. The trial court opined that an expert would be allowed to testify regarding the significance of that specific location and the specific interactions of Mafia and other gangs, based on his knowledge of gang symbols, gestures, territories, and the nature of the disputes between those particular gangs gathered from his experience working as a Chicago police officer and through investigations, field interviews, confidential informants, jail interviews, long-term investigations, or citizens from the area. Thus, if the State laid a proper foundation, the trial court would proceed with voir dire of the proposed expert.

¶ 14 The next issue was whether the video should be admitted. Defendant argued that the admission of the video would essentially make him guilty by association because he lived near the area where they shot the video. Defendant resigned that his speech in the video, was merely bragging in order to get "street-cred" from his audience. Defendant maintained that there was no connection between the video and the crime. The State, on the other hand, argued that the video was necessary to establish the identity of defendant and codefendant, the association of defendant and codefendant, the location near the crime scene which was the 3B's gang territory, and motive.

¶ 15 The trial court agreed with the State that the video was relevant to show the association between the defendant and codefendant, their identity, the gangs that they associated with, and the video being filmed near the scene of the murder and in a disputed gang area. Therefore, trial court ruled that, except for the scene where codefendant had a gun, the State could use the remainder of the video as the State saw fit.

¶ 16 On August 16, 2018, the State filed a motion to substitute the gang expert at trial. The motion indicated that Officer Reno would be unavailable for trial and sought to substitute him with Officer Jamie Luna. The State argued that Officer Luna's knowledge was just as extensive as Officer Reno's. Specifically, the State noted that Officer Luna was qualified because he: was on at least one other occasion qualified as a gang expert involving the Latin Kings ; was a member of the Chicago Police Department for 18 years; was assigned to the 4th District Gang Team from 2006 to 2008; and was assigned to Gang Investigations for ten years, which was on special assignment to the FBI Gangs Task Force. The State indicated that Officer Luna had investigated the gangs in the area of the murder which included the 3B's, Mafia Insane Vice Lords, Latin Kings, Latin Dragons and Gangster Disciples. The State argued that Officer Luna would be able to testify to the same matters that Officer Reno would have testified to.

¶ 17 On August 16, 2018, the trial court granted the State's motion to substitute the gang expert witness finding that the officers had practically identical backgrounds and the issues to be testified to would not change its ruling. This ruling was made over defendant's objections that the officer's background should have been scrutinized more to determine prejudice and whether he was in fact qualified.

¶ 18 On September 5, 2018, the State filed an amended motion to substitute the gang expert at trial, which was heard instanter. The motion was substantially similar to the original, except it clarified that this would be the first time Officer Luna would be qualified as an expert at trial. The State also argued that Officer Luna had previous interactions with Damian Pedroso , a leader of the 3B's, who was in the video. The State clarified, however, contrary to their earlier representations, that Officer Luna had no previous interactions with defendant or codefendant and did not work on the murder investigation of decedent.

¶ 19 In response, defendant argued that the motion should be denied because Officer Luna had no prior experience as an expert witness and his testimony with regard to Pedroso was unknown and could only consist of hearsay testimony. Nevertheless, the trial court determined that if Officer Luna had a basis to know that Pedroso was a leader of the 3B's, it would not be hearsay. Additionally, the trial court stated that it would not preclude the State from introducing Officer Luna simply because he had not been qualified as an expert in the past.

¶ 20 B. Trial

¶ 21 At trial, Dejanae Coleman, testified that she currently lived in Dolton, Illinois, but grew up on the east side of Chicago. Coleman testified that on July 6, 2014, she was with decedent who was a friend she knew from the neighborhood where she grew up. Prior to meeting up with decedent, Coleman was with friends on 81st Street and Commercial Avenue, in Chicago. After receiving a phone call from decedent, Coleman left her friends' house to meet him. She and decedent then went to a nearby abandoned house where they talked and listened to music. Coleman testified that two men walked by; she recognized one of the men as "Doomz" but did not know the name of the other one at the time. Coleman noticed that Doomz had a gun in his hand. As they walked past, decedent asked if they were okay. The men walked back toward them and asked decedent if he was okay. Decedent responded by saying "yeah, I'm cool." Coleman testified that the men then asked decedent if he was "Mafia" to which decedent responded that he did not know what they were talking about. The men stated, "yes, you are," and started to shoot at them. Coleman could not recall if both men were shooting, but she testified that both drew their guns, at which point decedent pushed her off the porch and she began to run. Coleman clarified that she froze at first until decedent pushed her and screamed her name. Coleman testified that she was not sure, but she believed decedent was trying to run as well. Coleman testified that she ran to an empty viaduct next to her friends' residence and subsequently realized that she was shot in the leg.

¶ 22 Coleman testified that she saw the men who pointed guns at her and decedent in court. When asked to identify where they were sitting and what they were wearing, Coleman stated, "I'm really kind of blind. Is it okay if I step up. [sic] " The trial court permitted Coleman to step off of the witness stand to get closer, at which point Coleman positively identified codefendant as Doomz, and indicated that he was wearing a black suit and a striped tie. When asked if she could recognize anyone else who was pointing a gun that night, Coleman positively identified defendant, and indicated that he was at the end of the table and wearing a black suit with a red tie. Coleman testified that she recognized codefendant from the neighborhood, and she recognized defendant from social media.

¶ 23 Coleman testified that she was treated at Christ Hospital for her injuries. On July 8, 2014, after she was released and went home, she was subsequently visited by detectives. She showed the detectives photos of the two shooters on Facebook. Coleman testified that because she did not have a printer, she gave the detectives her credentials to access her Facebook page. On July 12, 2014, Coleman went to Area 2 at 111th Street, and met with Detective Allen, and viewed a photo array. She identified the men in the photos as the shooters, who were Doomz and Little Lord , the latter of which she identified in court as defendant. Coleman testified that she learned of Little Lord's name on Facebook. Coleman identified State's exhibit 4B as the lineup photo that she marked to identify defendant and State's exhibit 4C as the lineup photo that she marked to identify codefendant at the station.

¶ 24 Coleman testified that she was asked to come back to the station on July 29, 2014, when she identified defendant in a lineup. Coleman also recalled that she testified in front of the grand jury, where she again positively identified photographs of both defendant and codefendant. Coleman testified that on that day of the trial, she met with the State and viewed the video, and identified both defendant and codefendant. Coleman identified State's exhibit 7 as a photo of codefendant from Facebook that was shown to the grand jury; he appeared the same as he did on the night of the shooting, but she was unsure if he had the same jacket on. Coleman identified State's exhibit 8 as a photo of defendant from Facebook that was shown to the grand jury; he appeared the same as he did on the night of the shooting, except that he wore a hoodie that night. Coleman testified to an additional photo of defendant, in State's exhibit 9.

¶ 25 The State moved to enter the video into evidence and to play it for identification purposes; defendant objected. The trial court, nonetheless, allowed the State to admit the video and to publish it at will.

¶ 26 On cross examination, Coleman testified that she was unsure if she had known the decedent for exactly two years as of the date of the shooting. In addition to the conversations, she mentioned on direct, Coleman also talked to detectives at the hospital but only gave them codefendant's nickname. Coleman testified that she described the other offender as being about five-feet, four- inches tall; however, defense counsel informed Coleman that defendant was actually about an inch shy of being six-feet tall. Despite the discrepancies regarding defendant's height, she was sure that she got a good look at his face. Coleman denied seeing defendant's face on Facebook prior to the shooting; instead, she recalled seeing him once within the week before the shooting. She saw him on Exchange Street with a group of people who were playing dice and arguing. Coleman testified that she did not know anything about the video or that defendant and codefendant were rappers until she decided to look Doomz up on Facebook to help assist the detectives. Coleman stated that she recognized the hand signals in the video as belonging to the Vice Lords, GDK, and one gang of unknown origin. Coleman testified that she had knowledge of this because she had family members who were Vice Lords. When asked to clarify where exactly she and decedent were located on the porch of the abandoned building, Coleman marked the State's exhibit and testified that she was on the third step while decedent was probably on the fifth or sixth step. Coleman testified that the defendant and codefendant were approximately six feet from her and decedent when the dialogue began. Although it was approximately 11:30 p.m., the streetlights were operating. When the men started shooting, decedent pushed her towards them and out of the way. Coleman testified that to her knowledge, the Mafia Insane Vice Lords were not aligned with any larger gang, while the 3B's were aligned with "No Limit." At the time of the shooting, the Mafia Insane Vice Lords and the 3B's were at war, however, to her knowledge, no gang ran that neighborhood. When questioned about how women are used in gangs, Coleman testified that she did not know for sure because she was not in a gang, and she was free to associate within whomever she wanted and go wherever she wanted. When Coleman saw defendant in the neighborhood, he ended up arguing with the Vice Lords, the gang that some of her family members belonged to. Coleman state that she had never seen the video that was played in court until the Monday prior to trial. Coleman testified that the video had nothing to do with the shooting and that she was never threatened or notified by the police that she was in danger.

¶ 27 After Coleman's testimony, defendant asked the court to declare a mistrial. Prior to trial the court had denied defendant's motion to bar the video as irrelevant and prejudicial based on certain representations made by the State. Specifically, defendant argued that the State promised their civilian witness would be able to identify the defendant in the video. However, Coleman testified that she had not seen the video until the Monday prior to trial, which was after the State made its argument, on which the court based its ruling authorizing the State's use of the video.

¶ 28 The State maintained the same arguments that it presented in its previous motion emphasizing that the video could also be admitted as evidence of other crimes. The State argued that it complied with the court order, which only required it to blur out the gun codefendant was holding. The State acknowledged telling counsel previously that it would have a civilian witness identify defendant and codefendant in the video, but they were only obligated to comply with the court order.

¶ 29 In rebuttal, defendant argued that the State indeed represented that the video would explain how defendant was arrested and the feud in the area. Defendant argued that the civilian witness was supposed to be someone who knew the neighborhood and could explain the significance of the video in relation to it. Instead, the jury only viewed defendant with "dope" and money. Defendant argued that to show this video with just the expert, was previously determined to be to remote.

¶ 30 The trial court stood by its previous ruling permitting the State to use the video to demonstrate identification, defendant and codefendant's relationship to one another, defendant and codefendant's relationship to the 3B's, motive, and knowledge. As such, the trial court denied defendant's motion for a new trial.

¶ 31 Sergeant Christopher Maraffino, from the Chicago police department, testified that on July 27, 2014, he was assigned to the fugitive apprehension section of the department. On that day, he and his partner Sergeant Sherod Dent were assigned to apprehend defendant and codefendant based on investigative alerts. They obtained photos and known addresses of defendant and codefendant. Sergeant Maraffino identified defendant in court as the person he and his partner detained on July 28, 2014, near 82nd Street and Muskegon. Sergeant Maraffino testified that he viewed the State's video evidence and stills of photos from the video and made an in-court identification of both defendants. Specifically, Sergeant Maraffino identified defendant as the person wearing a light grey hoodie in the video. On cross examination, Sergeant Maraffino testified that he did not view the video until the Monday prior to trial and he was not involved in the investigation of this case.

¶ 32 Detective Keith Allen testified that he was a homicide detective and on July 10, 2014, he was assigned to work on the death investigation of decedent. Detective Allen was not originally assigned to the case but was later asked to join the investigation because of his schedule. Detective Allen testified that on July 12, 2014, he met with Coleman when she came to the station and showed her two photo arrays. Detective Allen testified that Coleman positively identified defendant and codefendant in the photo array. Detective Allen testified that this was the extent of his involvement in this case.

¶ 33 Detective Thomas Doherty testified that on July 6, 2014, he was assigned to the shooting that occurred at 3002 East 81st Street, with Detective Golab. Detective Doherty testified that once decedent was taken off of life support, the investigation went from an aggravated battery with a firearm to a homicide, and he continued to work on the case. Detective Doherty testified that when he arrived at the scene, the area already had yellow and red tape outlining the perimeter and that the street was artificially lit from the streetlights in that area. After talking to the first responders on the scene, Detective Doherty went to Northwestern Memorial Hospital, where decedent was taken, however he was unable to talk to him. Detective Golab went to Christ Hospital, where Coleman was located, however, Coleman had been released before he arrived.

¶ 34 Detective Doherty testified that in the morning of July 7, 2014, he went back to the scene and helped locate shell casings that were moved by the storm. At approximately 11:15 a.m., Detectives Doherty and Golab went to Coleman's house in Dolton, Illinois. Detective Doherty testified that Coleman recounted the events and described the shooters. He said that Coleman showed them photos of the shooters from Facebook and identified them as having the nicknames Doomz and Little Lord; they were unable to determine the suspects' real names at that time. Detective Doherty testified that they were able to access Coleman's Facebook from the police station, where he printed the photos of the suspects. Detective Doherty testified that at approximately 2:30 p.m., they were notified that decedent died. After talking to multiple civilians and officers, Detective Doherty ascertained the names of defendant and codefendant on or before July 9, 2014; Doomz was identified as codefendant and Little Lord as defendant.

¶ 35 Detective Doherty assembled the photo arrays and gave them to Detective Allen, who showed Coleman and relayed the results to Detective Doherty. Based on Coleman's identifications, Detective Doherty issued investigative alerts for defendant and codefendant. Detective Doherty identified defendant in court as the individual who was apprehended based on the investigative alert. Detective Doherty testified that on July 29, 2021, he was present with Coleman when she identified defendant in a lineup as being one of the shooters.

¶ 36 On cross examination, Detective Doherty testified that although Detective Golab was unable to talk to Coleman in the hospital, other officers arrived before she was released and took her statement: she identified Doomz. He viewed codefendants' video on YouTube the day after he visited Coleman at her home and then generated the photos in the photo array himself. Detective Doherty testified that the physical evidence consisted of shell castings and the victims cell phone. Detective Doherty testified that he although he did not know if Coleman was in a gang and did not investigate that fact, he nevertheless believed that the shooting was gang-related in nature. He knew that several gangs existed in the area near the shooting and to his knowledge the 3B's were involved in this shooting. However, he had no knowledge of an ongoing gang war in the area at that time, did not know what particular hand gestures were used for gang signs, and Coleman never mentioned that decedent pushed her from the porch and screamed her name.

¶ 37 Steven Ajaye testified that he and defendant were friends and he positively identified him in court. Ajaye testified that he and defendant were in a photo, State's exhibit 3B, where they had made hand gestures that he described as non-gang related; he was just "throwing up something." Ajaye testified that defendant made a hand gesture as well, but it was different, and he did not know what it meant. When asked about a visit from the State's Attorney Office in March of 2016, Ajaye stated that he remembered being told about how he would be in trouble for following through on any threat. When the State asked Ajaye about other criminal acts that the defendant was involved in, defendant moved for a mistrial based on prosecutorial misconduct. However, the trial court denied the motion and instead admonished the jury that evidence of other criminal conduct that defendant was not charged with, could be used for identification purposes only. The State again asked Ajaye if, during the March 2016 meeting, he was asked whether defendant was involved in any criminal acts which involved hurting someone, and Ajaye responded that he did not know. Ajaye added that while he did not feel threatened by the State's visit, he did feel that the State was trying to get something out of him.

¶ 38 On cross examination, Ajaye testified that he told the State that defendant never asked him to do anything illegal. On redirect examination, he reiterated that he thought the State was trying to get answers from him that he did not have during the visit.

¶ 39 Officer Paul Presnell, a forensic investigator with the Chicago police department, testified that on July 7, 2014, he was assigned to investigate the scene at 3002 East 81st Street. He detailed the process used for collecting evidence from the scene. Officer Presnell identified photos in which he could see the firearm evidence in them as well as photos of operable and inoperable streetlights in the area. Officer Presnell identified a photo of the area in front of 3002 East 81st Street, where he described blood and firearm evidence present on the sidewalk, as well as a photo showing clothing and a cell phone. Officer Presnell testified that he recovered cartridge cases from the street, curb, and sidewalk. He believed that here were two guns used; a .380 automatic and a 9 millimeter.

¶ 40 Prior to the State's introduction of Officer Luna to the jury, the trial court admonished the members of the jury, that the evidence the State would show involved conduct by defendant other than what was charged in the indictment. That evidence would be received on the issues of defendant's identification, his association with codefendant, motive, and knowledge; the jury was to consider that evidence for those limited purposes. Lastly, the trial court noted that it was up to the jury to determine if defendant was involved in that conduct, and if they concluded he was, they were to determine what weight should be given to that evidence on the issues described.

¶ 41 The State conducted a voir dire, examination of Officer Jamie Luna was heard outside the presence of the jury. During voir dire, Officer Luna testified that he worked for the Chicago police department for 18 years. He started out patrolling in other districts which involved responding to crimes that involved gang violence or activity. Ultimately, he was transferred to the 4th District; where he grew up and also the location of the shooting. Officer Luna testified that he started out patrolling in the 4th District and then moved to the gang team as a gang officer. A gang officer's objective was to develop informants, gain intelligence regarding gang activating, and suppress some of the violence in the district. Officer Luna left the unit in 2008 and went to gang investigations which was located at Homan and Fillmore, in Homan Square. In this position he served both the 4 district and the south side of Chicago. Officer Luna testified that in addition to gang investigations, he was also assigned to a specialized unit with the FBI task force at the time of trial. He started working on the FBI task force in 2015. Officer Luna testified that his work on the FBI task force was similar to his work in gang investigations except it extended to all of the city and into the suburbs. In the FBI task force Officer Luna worked alongside FBI agents, and specifically worked with Hispanic gangs. He nevertheless still kept up with the gang activity in the 4th District which had gangs that were Hispanic, black, and white. Officer Luna has assisted in more than 50 homicide investigations and developed about 20 confidential informants. Officer Luna testified that he received training on gangs from the Chicago police department, but other than the initial training, he could not specifically recall additional formal training; he received most of his training from the street.

¶ 42 Officer Luna testified that for his various roles he was required to gather knowledge involving gang intelligence, gang territory, gang membership, gang affiliation, association, hierarchies of gangs, rivalries of gangs, and trending violence by gangs which could be brought on by illegal activity such as drug trafficking/dealing. According to Officer Luna, gangs would use colors, signs, and graffiti to show what gang they were in. Officer Luna testified that the information he was sharing was received from gang members, community members, school officers and confidential informants. Most of the gangs are divided into peoples and folks; depending on which gang a person identifies with, they were affiliated with others under that same umbrella. The peoples are associated with a five-point star, whereas the folks are identified with the six-point star. In order to identify as folks, a gang member would roll up their pants on the right side. To identify as peoples, a gang member would roll up their left side. If a person is in a subfraction of a gang, they would identify with the larger section of the gang for protection if they became incarcerated. Officer Luna testified that social media has exacerbated gang activity where members are known to get into arguments or "taunting" online and within an hour or two, an incident such as a shooting would occur.

¶ 43 Officer Luna testified that the Vice Lords had separate factions, some of which were: Conservative, Traveling, Cicero Unknown, Imperial, and Mafia Insane. Officer Luna informed the court that a renegade gang would go under the umbrella of a larger gang, but they will not obey the leadership of the gang, and the 3B's, who existed in the 4th District, were considered a renegade gang. Their boundaries went north to 80th Street, south 83rdd Street, from Exchange all the way to Marquette. Officer Luna testified that the Mafia Insane Vice Lords' territory was to the east of the 3B's territory. The sign the 3B's made looked like an okay sign. He only became aware of the 3B's in 2004; in the 14 years since then, he had investigated crimes they were involved in and was able to talk to some of the members. Officer Luna determined that the 3B's have no leader or structure.

¶ 44 On cross examination, Officer Luna testified that he first became involved in this case two weeks prior to his testimony and had never testified as a gang expert before. Officer Luna admitted that it had been years since he testified as an investigating officer in any case involving the 3B's. Officer Luna agreed that a person did not have to be a gang member to rap in a video. He was familiar with the Chicago Crime Commissions Gang Book (gang book), but he did not contribute to it or read it and did not know who provided the information or the intelligence in that book. Officer Luna testified to the existence of a database of gang members and multiple books generated by officers that identify gangs. However, Officer Luna also testified that if a person was not found in the database, it did not mean that they were not in the gang.

¶ 45 The trial court found that Officer Luna was qualified to testify as an expert in gangs in the 4th District based on his training and work with both the FBI and the Chicago police department.

¶ 46 On direct examination, Officer Luna testified that there were no rules or regulations in a renegade gang like the 3B's because they have no leader. Officer Luna testified that the territory that he previously described as being the territory of the 3B's was used to sell narcotics, specifically, crack cocaine on Burnham Avenue. Officer Luna testified that the 3B's battled with other gangs for control of that territory; specifically, there had been a conflict with the Mafia Insane Vice Lords since 2004.

¶ 47 While Officer Luna had previous interactions with Pedroso, he had never interacted with defendant and codefendant. He testified that he reviewed the investigation and was familiar with the location of 3002 East 81st Street; he knew it to be controlled by the Mafia Insane Vice Lords. Officer Luna opined that based on what defendant and codefendant stated and the location of where this incident occurred, defendant and codefendant were asking decedent if he belonged to the Mafia Insane Vice Lords: a question they already knew the answer to. Defendant objected based on foundation which the trial court overruled.

¶ 48 Officer Luna testified that at the State's request, he viewed the video several times and recognized Pedroso. Officer Luna stated that a gang member would show disrespect in a music video through the lyrics. In his expert opinion, the title of the song in the video was "Crack" because they were talking about the narcotics sales in the area. In his opinion, this video was consistent with the behavior of the 3B's: the video was filmed in front of a liquor store on 82nd and Exchange, in Black P Stone territory in order to disrespect them. Officer Luna testified that the video was made to demonstrate that those in it were Vice Lords as evidenced by gang signs in the video that belonged to both the Vice Lords and the 3B's. Officer Luna testified that the following gang signs were in the video to show disrespect to specific gangs: a Latin King crown being thrown down, a Latin Dragons symbol being thrown down, and multiple pitchfork symbols being thrown down. Officer Luna informed the court that a gang sign demonstrating a pitchfork being thrown down, symbolized disrespect to the gangs that followed the six-point star. The 3B's came from so many different gangs that he would not be able to ascertain if they came from either a five-point star or a six-point star. Officer Luna testified that the Vice Lords used the colors gold, red, and black.

¶ 49 On cross examination, Officer Luna reiterated that he was unfamiliar with the gang book and those who contributed to it. Officer Luna acknowledged that he recognized some law enforcement officials who wrote letters that were included in the book noting their support and contributions. Officer Luna also acknowledged that the book discussed the 4th District and the 3B's were not mentioned. He then stated that the gang book was a great reference for information regarding Chicago gangs, however, it was not completely accurate and needed to be updated. When he arrived at the 4th District in 2004, he was made aware of the 3B's existence. When he arrested individuals who were in the 3B's, they were self-identifying, and he never had an informant from the 3B's. Officer Luna testified that in his expert opinion, the video did not depict any disrespect toward the Mafia Insane Vice Lords, and he did not see any connection between that video and this case.

¶ 50 At that point, defendant motioned again for a mistrial on the basis that the State made side comments during his cross examination and throughout the proceedings. The trial court found that the comments the State made throughout the proceedings were civil in nature therefore denied defendant's motion.

¶ 51 Defendant next moved the trial court to strike the testimony of Officer Luna and instruct the jury to disregard the video because it was his expert opinion that there was no connection between the video and the murder. Further, defendant argued that the State's earlier motion to call the gang expert as a witness did not reflect what was actually presented. The State however argued that the defendant's motion should be denied because it was a legal conclusion that Officer Luna should not have been even asked about, regarding whether there was a connection.

¶ 52 After hearing arguments, the trial court recounted that the video was merely one piece of evidence, and that Officer Luna was specifically asked to provide a legal conclusion. The purpose of the video was to establish a connection between defendant and codefendant whereas the gang expert was there to specifically identify gang features and locations in the video, which included detailing the ongoing battle between the 3B's and the Mafia Insane Vice Lords within the 4th District. Coleman, however, was used to identify the suspects in the video, and to confirm the dialogue that occurred regarding whether the decedent was "Mafia," which correlated to the testimony of the Officer Luna, the gang expert. For those reasons, the trial court denied the motion to strike the testimony of Officer Luna and the video.

¶ 53 Erin Vasilopoulo, an investigator for the Cook County State's Attorney Office, testified that she was assigned to interview Ajaye on March 3, 2016. She met with Ajaye at his home where he told her that he had known defendant since the third grade and was still in communication with him. Vasilopoulo testified that she asked Ajaye if defendant had attempted to involve him in any criminal activity, and he responded that defendant was not going to commit a crime because he was in jail. Vasilopoulo testified that she told Ajaye if defendant tried to get him to commit a crime, he should report it to the police or he would be charged with that crime; Ajaye indicated that he understood. On cross examination, Vasilopoulo testified that if she knew of a witness being threatened, she would report it to the victim witness unit immediately. She added that she did not ask any follow up questions after Ajaye mentioned defendant was not going to do anything.

¶ 54 Defendant then moved for a directed verdict. In denying defendant's motion, the trial court determined that based on the evidence, any rational trier of fact could have found the essential elements of the crime of first degree murder as charged beyond a reasonable doubt.

¶ 55 Eyo Simone Green, defendant's mother testified that in 2014 defendant lived with her near 75th Street and Phillips. She testified that defendant was a high school graduate who learned to cook and would often cook for the family. She recalled the date of July 6, 2014, because on that date her family had a barbeque in a park located at 67th and Stoney Island. Defendant was with her at the park from approximately 11:30 a.m. until the park closed at about 9 p.m. when she and defendant went back to their home. Green recalled that the family went to bed early at about 10:30 or 11 p.m. because they had planned another family event for the next day to celebrate her grandchild's first birthday. She said that she knew that defendant never left the home that night because he would have had to pass her room to exit. Green admitted that she knew defendant was an aspiring rapper, but she never saw any of his videos. Green indicated that she learned defendant's arrest on July 28, 2014, but did know defendant or Ajaye to be gang members.

¶ 56 On cross examination, Green testified that she could not remember the exact date she told defendant's attorney that he was with her on the night of the shooting but recalled that it was when he got his current counsel. On redirect examination, Green stated that she did not think that the police would listen to her if she came forward.

¶ 57 The parties stipulated that on August 14, 2014, Coleman testified in front of the grand jury, that she had known decedent for two years. Further, the parties stipulated that Coleman did not state that decedent pushed her from the steps and called her name. Lastly, the parties stipulated that Coleman was not specifically asked if decedent pushed her off the steps and called her name.

¶ 58 Defendant entered a page from the gang book as well as other exhibits into evidence and rested his case. The jury subsequently found defendant guilty of first degree murder and aggravated battery.

¶ 59 On October 18, 2018, defendant filed a motion for a new trial. Defendant argued that: (1) the State failed to prove him guilty of the charges beyond a reasonable doubt; (2) the finding was against the weight of the evidence; (3) the State failed to prove every material allegation of the offenses beyond a reasonable doubt; (4) he was denied due process of law; (5) he was denied equal protection of the law; (6) he did not receive a fair and impartial trial; (7) the trial court erred in allowing proof of other crimes evidence; (8) the nature and amount of evidence of other crimes admitted was excessive and overly prejudicial and denied his right to a fair trial; (9) the trial court erred in granting the State's motion to allow gang expert testimony; (10) the trial court erred in finding the witness, Officer Luna, qualified as an expert in gangs; (11) the trial court erred in denying his motion for a directed verdict at the close of the State's case; (12) the trial court erred in denying his motions for mistrial, and; (13) the verdict of guilty was based upon evidentiary facts which did not exclude every reasonable hypothesis consistent with his innocence.

¶ 60 On November 28, 2018, defendant filed an amended motion for a new trial. In addition to his previous motion, defendant argued: (1) the trial court erred in allowing the State to play a video that was inconsistent with what they represented, during arguments on the pretrial motions, that the video would show; (2) the trial court erred in refusing argument when defense counsel made an objection to the inconsistent video being played; (3) the prosecution withheld information that Dr. White was not in constant employment with the medical examiner's office; (4) the trial court erred in allowing a letter allegedly sent from jail by the defendant to be presented to the jury over his objection and without proper foundation; (5) the trial court erred in admitting evidence of other crimes; (6) the court permitted an unwarranted amount of prejudice to occur with the admission of the letter; (7) the trial court erred by allowing the sheriff's testimony when the prosecution withheld evidence of a report from the sheriff's department, and should have granted a mistrial based thereon; (8) the trial court erred when it allowed Officer Luna to testify without requiring the prosecution to offer an adequate foundation for his conclusions, and; (9) the trial court erred in denying his motion requesting a report from Officer Luna.

¶ 61 On December 15, 2018, defendant filed a second amended motion for a new trial arguing that in addition to the previously filed motions, the comments made by the prosecutor were meant to arouse the prejudices of the jury.

¶ 62 On December 18, 2018, the State filed a response to defendant's motion for a new trial. The State argued that: (1) the video adhered to the trial court's ruling and was admitted for purposes of identifying defendant and codefendant and their gang association; (2) Dr. White was forthcoming about his employment with the Medical Examiner's Office; (3) the letter written by defendant was properly admitted as proof of bad acts or other crimes; (4) there was no error regarding the admissibility of testimony from Officer Luna; (5) the trial court did not err when it did not allow additional sidebars, and; (6) the statements made by the prosecutor were in response to the personal attacks of defense counsel.

¶ 63 At the hearing on the motion for a new trial, defendant argued that the State sought the introduction of the video to demonstrate direct evidence of his knowledge of the area. He argued that the video was used to demonstrate that because he was in a rap video, that he was violent and therefore guilty of the charges, which was an attack on his character. Further the video was used by the gang expert, who did not accept the common knowledge that was accepted by the law enforcement community. Defendant argued that when an opinion is not accepted or aligned with the experts in the field, the expert's testimony should be stricken from the record.

¶ 64 The State argued that it was limited by the court order as to what it could elicit from the evidence, which was: the identity of the individuals in the video, the gang association of the members in the video, and the location where that video was recorded. This evidence was allowed to come in through the witnesses at trial. Additionally, Officer Luna was qualified as an expert because of his experience which demonstrated that he knew more than the average lay person. The State argued that it laid the proper foundation for Officer Luna through his testimony that demonstrated he was trained as a gang officer and was familiar with that area because of his personal ties to it. The State argued that it did not commit a discovery violation that warranted a reversal.

¶ 65 In response, defendant claimed that it was not enough to simply have a greater knowledge than others to be qualified as an expert. Defendant argued that what was required was a pattern that was accepted in the law enforcement community and cited to Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), as support. Under Frye, defendant argued, one could not be admitted as an expert and not accept the larger community's theories.

¶ 66 Upon reviewing its notes, evidence, and pleadings, the trial court found that the rulings were proper and based in the law. The trial court made the following findings: 1) there was no doubt that this was a gang case; 2) the video was admitted for the purposes of demonstrating the connection between the defendant and codefendant; 5) the location was relevant to the case; 3) the State complied with the court's order in introducing other conduct; 4) the video was not unduly prejudicial to the defendant; 5) Officer Luna was properly admitted as the expert, outside the presence of the jury, and it was proper to allow him to testify about that area and his knowledge of gangs, even where it conflicted with other law enforcement officials; and, 6) defendant had wide latitude to cross examine him about his expertise and the basis of his opinion. The trial court noted that it ran the proceedings with a complete absence of bias and remained impartial throughout. Accordingly, the trial court denied defendant's motion for a new trial, and the matter moved to sentencing.

¶ 67 At the sentencing hearing, the State presented evidence in aggravation including a victim impact statement written by decedent's mother. The State argued for a substantial sentence in light of the fact that the victims were simply sitting on a porch when they were attacked, and that decedent left behind a family and children.

¶ 68 Defendant presented no evidence in mitigation but argued that according to the presentence investigation report (PSI), he had only one juvenile probation in his background, no adult convictions, a family, at the age of 20 he was still young when this occurred and was a good candidate for rehabilitation. Accordingly, defendant argued that a minimum sentence was proper. When asked if he had anything to say to the court, defendant stated," [i]nnocent. I'm innocent."

¶ 69 The trial court noted that the victim impact statement was heartbreaking and found the shooting to be senseless. The trial court considered the age of defendant, PSI, his familial support, his lack of a criminal background, the facts of the case, and the arguments made by the parties. The trial court merged the aggravated battery conviction into the first degree murder conviction and sentenced defendant to 31 years in the Illinois Department of Corrections with three years mandatory supervised release. This timely appeal followed.

¶ 70 ANALYSIS

¶ 71 On appeal, defendant contends that: (1) the State failed to lay the necessary foundation for Officer Luna's expert opinion about street gangs, and (2) he was denied a fair trial when the State introduced evidence of a music video.

¶ 72 A. Expert Opinion

¶ 73 1. Statutory Requirements Under the Act

¶ 74 Defendant contends that Officer Luna did not establish that the Mafia Insane Vice Lords or the 3B's met the statutory definition of a "streetgang" under Illinois law. Consequently, defendant asserts that Officer Luna should not have been allowed to offer his opinion. Defendant specifically points out that Officer Luna failed to provide proof of crimes committed by these gangs on specific dates establishing a "course or pattern of criminal activity" as required to establish that these groups met the definition of a street gang pursuant to the Illinois Streetgang Terrorism Omnibus Prevention Act (Act). 740 ILCS 147/10 (West 2018) Additionally, defendant refers to Officer Luna's testimony that the 3B's did not have a hierarchical structure which should explicitly exclude it from the statutory definition, citing People v. Murray, 2019 IL 123289, ¶¶ 31- 34, as support. According to defendant, Murray requires that the expert witness explain why they have formulated a particular opinion. Defendant contends that although Officer Luna described the 3Bs' territory, rivals, symbols, colors, and customs, he did not describe the reasons for his opinion. Further, defendant acknowledges that while Officer Luna testified to the group's sale of crack cocaine, Officer Luna failed to demonstrate a "course or pattern of criminal activity." Hence, defendant concludes that as a result of the lack of the requisite foundation, Officer Luna's expert testimony should have been stricken.

¶ 75 Defendant further contends that if this court were to determine that defendant's general objection to Officer Luna's expert testimony was not sufficient to preserve the issue on review, then we should find trial counsel ineffective for failing to raise that specific objection. Defendant contends that it was unreasonable for defense counsel to not to have made the specific objection that Officer Luna failed to establish that the groups did not meet the statutory definition of streetgang.

¶ 76 In response, the State argues that this issue is waived because defense counsel's specific objection made with regard to prejudice and relevancy; not on the grounds that it lacked the foundational requirements as outlined in the Act. The State further argues that Murray is inapplicable here because, unlike in Murray, defendant was not charged with any offense under the Act. The gang evidence in this case was ancillary to the charges as opposed to a substantive element as in Murray. In the case at bar, Officer Luna was not required to adhere to the Act because defendant was not being charged with violating it. Thus, the State maintains that it was only required to prove that Officer Luna possessed the necessary qualifications, that his testimony was relevant, and that the testimony's probative value was not outweighed by its prejudice.

¶ 77 Defendant acknowledges that the issue of whether Officer Luna's testimony met any of the statutory requirements under the Act was not raised at trial. The failure to object to an alleged error at trial and preserve it in a posttrial motion, results in forfeiture of the issue on appeal. People v. Holmes, 2016 IL App. (1st) 132357, ¶ 45. Defendant did not raise this objection during trial or in his posttrial motion; therefore, the issue is deemed forfeited. Id. Nevertheless, in the alternative, defendant asks this court to review his claim for ineffective assistance of counsel, which we have set forth below.

¶ 78 Claims of ineffective assistance of counsel are reviewed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, (1984). People v. Evans, 209 Ill.2d 195, 219 (2004). Under Strickland, a defendant must demonstrate that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense because absent counsel's deficient performance there is a reasonable probability that the result of the proceeding would have been different. Id. at 219-220. "A reasonable probability of a different result is not merely a possibility of a different result," but a probability that is sufficient to undermine the confidence in the outcome." Id. A defendant must satisfy both the performance and prejudice prongs of Strickland, in order to prevail on this claim. Id.

¶ 79 We will now examine the merits of defendant's allegation that counsel was ineffective for not objecting to Officer Luna's failure to establish the statutory requirements of a streetgang under the Act. Defendant suggests that we should find Murray persuasive. 2019 IL 123289. We disagree.

¶ 80 The defendant in Murray was specifically charged with unlawful possession of a firearm by a street gang member pursuant to the Act. 720 ILCS 5/24-1.8(a) (1) (West 2012). Id. at ¶ 1. The court in Murray noted that the Act required proof that defendant was a part of a street gang as specifically defined under the Act and evidence that established a "course or pattern of criminal activity." Id. at ¶ 24. However, to the contrary, the defendant here was not charged with any offense pursuant to the Act. Defendant was charged with first degree murder and aggravated battery pursuant to 720 ILCS 5/9-1(a)(1) (West 2014) and 720 ILCS 5/12-3.05(e)(1) (West 2014) of the Criminal Code of 2012 (Code), respectively. Defendant has not presented any case law, and this court has been unable to identify any case law, that demonstrates that compliance with the Act is required when charged with first degree murder under the Code. As such, we find that this court's prior decision in Murray is not applicable to the case at bar and accordingly compliance with the Act was not required. Consequently, an objection by defense counsel regarding the statutory requirements of the Act would have been meritless. Thus, we cannot find that counsel's performance was deficient for failing to make a meritless objection. People v. Edwards, 195 Ill.2d 142, 165 (2001).

¶ 81 As we have found that counsel's performance was not deficient, we do not need to address whether his actions resulted in prejudice to the defendant as required by the second prong of Strictland. Therefore, we find that trial counsel was not ineffective when he did not object to the state's failure to satisfy the statutory requirements of the Illinois Streetgang Terrorism Omnibus Prevention Act. In regard to defendant's underlying contention that Officer Luna should not have been considered an expert, we fully address this issue below.

¶ 82 2. Officer Luna's Testimony

¶ 83 First, defendant contends that the State failed to establish that there was any acceptance within the relevant law enforcement community of Officer Luna's opinion regarding the 3B's classification as a streetgang. Defendant asserts that his contention is supported by the fact that the 3B's were not included in the gang handbook's listings of gangs or maps of the 4th District.

¶ 84 Next, defendant contends that the admission of evidence demonstrating that the 3B's and the Mafia Insane Vice Lords were warring was prejudicial because it was heavily relied upon by the State and created a motive that connected defendant to the shooting. Defendant maintains that the State cannot substantiate their claim that the expert's opinion had no effect when the sole eyewitness, Coleman, admitted that she was "blind" and had issues identifying defendant and codefendant at trial.

¶ 85 The State remains steadfast that it laid a proper foundation for Officer Luna's testimony when he testified to his background: i.e., employment with the Chicago police department for 18 years, assignment in gang investigations unit as a member of the FBI task force and assigned to the 4th District where he grew up. The State asserts that Officer Luna developed intelligence for gang-related investigations, and at the time of trial, he still followed developments in gang activity in the 4th District. In sum, the State contends that Officer Luna's testimony established that he was "familiar with numerous gangs, their structures and hierarchies, their signs and symbols, their territories, their modes of income, and their rivalries." He was also familiar with members of other gangs and worked with both gang members and community informants to obtain pertinent information about the groups.

¶ 86 We review foundational challenges to expert testimony under an abuse of discretion standard. People v. Simmons, 2016 IL App (1st) 131300, ¶ 108. A witness may be qualified to testify as an expert through knowledge, skill, experience, training, or education. Id. at ¶ 115. The expert's credentials must be established, and the admission of the expert testimony requires an adequate foundation establishing that the information on which the expert bases their opinion is reliable. Id. In order to determine whether that information is reliable, the court must ask whether it is the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Id. When a proper foundation has been laid, the expert's testimony is admissible, but the jury is to determine its weight. Id.

¶ 87 Defendant's contention that Officer Luna's testimony was not sufficient because it was not in total agreement with the opinions contained in the gang book is unpersuasive. Here, Officer Luna testified to having worked for the Chicago police department for 18 years, he had an additional assignment in gang investigations as a member of the FBI task force, he was assigned to the 4th district where he grew up, and he developed intelligence for gang-related investigations including the 4th District. Additionally, Officer Luna testified that, as of the date of trial, his colleagues often sought his knowledge in regard to the 4th District. Officer Luna's disagreement with the gang book, demonstrated his specialized knowledge even further. While the gang book failed to identify the 3B's, Officer Luna not only knew of their existence but testified to interacting with at least one of the members; Damian Pedroso. Officer Luna testified to knowing about the territories of the 3B's, their lack of a hierarchy, their gang related activities, who they align themselves with, and that they were warring with the Mafia Insane Vice Lords. The State demonstrated that Officer Luna had the knowledge and experience required for an expert witness. Simmons, 2016 IL App (1stt) 131300, ¶ 115. Additionally, the State demonstrated Officer Luna's reliability when his testimony was corroborated by the testimony of Coleman who described the dialogue prior to the shooting as being related to whether the defendant and codefendant associated decedent with the Mafia Insane Vice Lords. Id. Therefore we find that the trial court's ruling regarding the expert was supported by the officer's sufficient experience and qualifications and the trial court did not abuse its discretion in allowing Officer Luna to testify as an expert witness.

¶ 88 B. Music Video Evidence

¶ 89 Defendant asserts that because the State only had one eyewitness, it sought to bolster its case with the introduction of the music video entitled "Crack." Defendant points to Officer Luna's testimony that nothing connected the video to this case. Defendant contends that the State relied on Officer Luna's testimony that the hand signals made by the participants in the video, including defendant, indicated that they were asserting their own gang affiliation or disrespecting other gangs; this was inadmissible hearsay not falling within any exception. Defendant argues that the probative nature of the video was minimal where it was created and placed on the internet at some unknown time before the shooting, directed by an unknown individual, and it was devoid of any mention of the Mafia Insane Vice Lords. Defendant contends that because the State failed to add any temporal context for the video, its probative value was minimal, citing People v. Lampkin, 98 Ill.2d 418, 419-24 (1983). According to defendant, the State also relied on demonstrative statements within the video as evidence of an ongoing gang war between the Mafia Insane Vice Lords and the 3B's. The video's representations of other crimes such as narcotics sales, general gang activity unrelated to the charged offense, and prejudicial rap lyrics outweigh any probative value of its admission.

¶ 90 Defendant further asserts that the hand signals that Officer Luna testified to were inadmissible demonstrative hearsay that did not qualify as an admission or any other hearsay exception. Defendant contends that Officer Luna's testimony regarding the hand signals was meant for their truth: that the 3B's were warring with other street gangs in the area and were disrespecting those gangs on their turf. Accordingly, defendant maintains that the video should not have been played to the jury because it contained inadmissible hearsay and its probative value was outweighed by prejudice.

¶ 91 In response, the State contends that the trial court properly exercised its discretion in allowing the video to be introduced. Further, at trial, defendant raised the objection to the video on grounds that the video was prejudicial and irrelevant, not based on hearsay. Defendant raises the hearsay objection for the first time on appeal and accordingly the State argues that he has forfeited this claim. Absent forfeiture, the State reminds the court that the State described the relevance of the video prior to trial. Specifically, the video (1) would show an association between defendant and codefendant which would corroborate the testimony of Coleman that they were "joint shooters", and (2) contained indicia of gang membership and was filmed in disputed gang territory, which would corroborate the State's theory that the shooting was gang-motivated. The State contends that this was echoed by the findings of the trial court when it determined that the prejudicial effect was not substantially outweighed by its probative value.

¶ 92 Next, the State contends that the verbal and non-verbal assertions made by the codefendant in the video did not contain inadmissible hearsay because they were statements by a party opponent, an exception to the hearsay rule. The narration of Officer Luna explaining the statements were not introduced for the truth of the matter asserted but instead for the limited purpose of establishing defendant's identification, his association with the codefendant, and his potential motive for and knowledge about the shooting. The State contends that the trial court specifically instructed the jury on this limited purpose. The State maintains that even if the testimony of Officer Luna went to the ultimate issue of the case, he was allowed to testify regarding these statements. The State contends that defendant's argument regarding when the video was made was not relevant to the reasons for which the State sought its admission, and the lack of "any temporal context" did not diminish its probative value.

¶ 93 In defendant's reply brief, he contends that because the statements made by the participants in the video are so general and impersonal, it cannot be characterized as being directed at one person and therefore the prejudicial effect of that gang-related evidence outweighed any probative value.

¶ 94 As the state points out, defendant objected to the introduction of the video at trial based on relevancy and prejudice; not hearsay as he raises in this appeal. The failure to object to an alleged error at trial and preserve it in a posttrial motion, results in forfeiture of the issue on appeal. Holmes, 2016 IL App. (1st) 132357, ¶ 45. Defendant did not raise the hearsay objection, nor was the issue raised in a posttrial motion; thus, the issue is deemed forfeited. Unlike defendant's previous issue, he did not ask this court for review in the context of ineffective assistance; therefore, we decline to extend that analysis to this forfeited claim.

¶ 95 CONCLUSION

¶ 96 For the foregoing reasons, we affirm the judgment of the trial court.

¶ 97 Affirmed.

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Notes:

There are many variations on how to identify this gang such as BBB's, triple B's, Big Black Brothers, or Big Block Brother's however, we will use this spelling for purposes of this appeal.

This was later corrected in the Amended motion of September 5, 2018, to indicated that Officer Luna had never previously been qualified as a gang expert.

Also known as "Damo."

Coleman did not know the exact address to this location.

Also known as Laud and Lawd.

Earlier in the proceedings the State proclaimed that it was not on trial for murder when the defendant was questioning Coleman. Defendant included this reasoning in his motion for retrial as well.

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