PEOPLE STATE ILLINOIS v. CLIFTON (2003)

Modified Opinion Pursuant to Supervisory Order of the Illinois Supreme Court

In these two consolidated cases, co-defendants Melvin Clifton and Vincent Galloway appeal from the contemporaneous respective judgments of the trial court convicting them each of first degree murder, attempted first degree murder and aggravated battery with a firearm.   Galloway argues on appeal that portions of the gang-related testimony presented at trial were hearsay;  both he and Clifton argue that such testimony was irrelevant and prejudicial and was offered solely to inflame the jury.   Clifton argues that because the name of one of the witnesses providing that testimony was submitted on the eve of trial, the State thereby committed a discovery violation.   Clifton also argues that he was not tried within 120 days as required by the speedy trial statute (725 ILCS 5/103-5 (West 1998)), and therefore his counsel's failure to move for dismissal for lack of a speedy trial denied him effective assistance of counsel.   Finally, Clifton argues that there was insufficient evidence to prove him guilty beyond a reasonable doubt either as a principal or on an accountability theory.   For the reasons set forth below, we affirm the convictions of each defendant and remand for clarification with respect to the sentence of codefendant Galloway.

BACKGROUND

Following simultaneous but severed jury trials, Galloway and Clifton were found guilty of the first degree murder of Leon Holton (also known as Milkman) and of attempted first degree murder and aggravated battery with a firearm in the shooting of Eddie Brown.   Galloway was sentenced to extended prison terms of 80 years for first degree murder and 40 years for attempted first degree murder, to be served consecutively.   Clifton received sentences of 55 years for first degree murder and 25 years for attempted first degree murder, also to be served consecutively.

Prior to trial, defendants, who were members of the Gangster Disciples street gang, moved in limine to bar the State from introducing evidence of their gang affiliation on the ground that it would be more prejudicial than probative.   The State had sought to introduce testimony by Tom Richardson, a Chicago police department gang crimes specialist, to help establish what the State asserted was the gang-related motive for the crime.   According to the State, because of an alleged leadership vacuum in the Gangster Disciples resulting from the federal indictment of 39 gang members on August 31, 1995, there was jockeying among remaining gang members for leadership positions.   As a result, a gang leader named Chuck Dorsey was killed in January 1996, and Holton was suspected of having killed him.   The State's theory was that Gangster Disciples leader Larry Hoover was angry that Dorsey had been killed, and Galloway and Clifton, who held subordinate leadership positions in the gang, killed Holton in retaliation.

On February 5, 1998, the court heard argument and granted defendants' motion in limine, stating that there would be no mention of gang affiliation.   On February 19, the date that jury selection was scheduled to begin, the State submitted a motion to allow gang-related evidence as motive, including the testimony of gang crimes specialist Richardson and of Philander Jenkins, a cooperating witness in a concurrent federal investigation of the Gangster Disciples.   The State also filed a supplemental answer to discovery adding Jenkins' name to its list of potential witnesses.   The case was continued on that date and on subsequent dates thereafter, with jury selection ultimately commencing on March 10, 1998.   Jenkins testified at a pre-trial hearing on March 3, 1998, and on March 6, the trial court granted the State's motion as to Jenkins, concluding that his testimony was sufficiently relevant to be presented to the jury, and that there was no discovery violation even though Jenkins was not listed as a potential witness until February 19.   The court subsequently stated on March 11 that Richardson could testify as to the leadership structure of the Gangster Disciples and as to which of its leaders were in federal custody, but he could not state the reason for the shootings.

The following evidence was adduced at trial.   Eddie Brown testified for the State that on March 10, 1996, he and the murder victim, Leon Holton, were driving around in Brown's car when Holton called someone on his cell phone and then said he had to go and meet someone.   Brown drove Holton to 78th Street where Holton saw a maroon Oldsmobile with the person he was to meet inside.   Brown honked at the car, and the two cars pulled to the side of the road, with Brown's car behind the Oldsmobile.   Brown said the two men in the Olds got out of their car and approached his car.   He identified (in court) the man who got out on the passenger side as Galloway, whom he knew at the time as Legs Diamond, a member of the Gangster Disciples.   The man who got out on the driver's side was hopping on a crutch and had a cast on his leg.   Brown said that man entered Brown's car and sat behind Brown in the back seat, and Galloway entered and sat in the back seat on the passenger side behind Holton. Galloway told Brown the other man's name was Melvin, and Brown identified him in court as Clifton.   Brown said once the two men were in the car, he and Galloway talked about the Chicago Bulls basketball game that day.   Holton then asked Clifton what was up, and Clifton said he had paged someone and was waiting for a call back on his cell phone.

Brown testified further that as he was about to turn around and say something, he noticed out of the corner of his right eye what looked like a silver tube extension behind him, and then heard a “poof sound” like a gun with a silencer, and felt a pain in his neck and knew he had been shot.   Brown then grabbed the door handle, and as he was trying to get out of the car he felt a sharp pain in his right hip and another in his back on the right side.   Brown got out of the car and tried to run but fell because he had been shot in the hip.   As he was lying in front of his car, Brown said he saw Galloway get out of the car on the passenger side, walk toward him and stand directly over him, pointing a gun at his head.   Galloway then and there shot Brown in the forehead and the upper right chest, and thereupon turned to Clifton, who had exited the car and was standing nearby, and told him he was out of bullets.   Galloway and Clifton then ran to the maroon Olds, with Clifton hopping on his crutch, and the car took off.

Brown stated that he next called his sister on his cell phone, and his niece, Asunta Saddler, answered.   Brown told her who had shot him and where he was, and subsequently the police and an ambulance arrived.   Brown talked to a police officer while he was in the ambulance, and told him who shot him.   Brown was then taken to a hospital.

The next afternoon, March 11, 1996, Brown said he talked to two detectives, a male and a female, while he was in the hospital.   They showed him four or five photos, from which he identified Galloway.   About two weeks later, on April 4, 1996, Brown went to the police station and viewed a series of photos from which he identified Clifton, whom he also identified in court.   On May 1, 1996, Brown went back to the police station and viewed a lineup from which he identified Galloway.   Three days later he viewed another lineup and identified Clifton.

On cross-examination by Clifton's counsel, Brown conceded that he had not seen Clifton with a gun.   Brown also said he learned when he was in the hospital that Holton had been shot but that he did not know which of them was shot first.   According to Brown, when he talked to his niece on his cell phone after the shooting he told her that Galloway had shot him, but he conceded that he did not remember “saying another guy.”   On March 12, 1996, two days after the shooting, Brown spoke in the hospital to an assistant State's Attorney (ASA) and a Chicago homicide detective, and gave them an eight-page statement.   Brown told them it was Galloway who shot him, but admitted in his testimony that although he told the ASA there was a second person, he did not remember telling them the second person's name was Melvin.   The parties stipulated that in Brown's eight-page statement he did not mention the name Mel or Melvin as being the second person who was with Galloway.

On redirect, Brown stated that the first time he met Clifton was on March 10, 1996, and that if he did not mention Clifton's name when he talked to the ASA and the police detective two days later, it was probably because he had forgotten it.   Brown also testified that on April 4, 1996, after he identified Clifton's photo in a photo array, he asked the police detective what the person's name was and the detective told him.   Brown then told the detective that he remembered that the person who was with Galloway was named Melvin. In addition, Brown said he told a grand jury on April 12, 1996, that when he talked to his niece on the night of the shooting, he told her that “Legs Diamond and Melvin” shot him.

Brown's niece, Asunta Saddler, testified for the State that Brown called her at about 8:45 p.m. on March 10, 1996, saying he had been shot and needed help.   She asked him who had done it, and he told her “Melvin and Legs Diamond.”   On cross-examination by Clifton's counsel, Saddler said that is what she told the police when she subsequently spoke to them on the telephone:  that “Legs Diamond and Melvin” had done this.

The State's next witness, Chicago police sergeant James Jackson, testified that when he arrived at the scene of the shooting on the night of March 10, 1996, he went to the ambulance and talked to Brown, who told him that Legs Diamond had shot him and that there was another person with him but he did not know his name.   Jackson also said he saw a black male with a fatal gunshot wound at the back of his head seated in the front passenger seat of a car parked on the south side of the street.   Jackson later learned that the man was Holton.   On cross-examination by Clifton's counsel, Jackson conceded that during the conversation in the ambulance Brown told him that Galloway “pulled a handgun” and shot Holton in the head, and that Galloway shot Brown several times when he tried to flee from the car.

Chicago police detective Linda Drozdek stated that she and her partner, Detective George Carl, went to Christ Hospital the night of March 10, 1996, to check on Brown's condition.   While they were there, hospital personnel gave Detective Carl a bullet that had been recovered from Brown's clothes.   The next day (March 11), Drozdek and Carl went back to the hospital and showed Brown a series of five photographs from which he identified Galloway as Legs Diamond.   Brown told them that (unlike the photo) Galloway at present had no hair.

Delilah Hunt next testified for the State.   She stated that in March 1996 Holton was her boyfriend.   She testified that on the morning of March 10, she and Holton drove to a restaurant and parked next to a car in which Galloway was sitting in the driver's seat.   She said Holton got out of their car and got into the front seat of Galloway's car, and the two men talked for 10 to 15 minutes.   Hunt said she and Holton then returned to their house, and at some point later, he left.   Hunt subsequently learned what had happened to Holton.   The next morning, March 11, she met with Chicago police detective John Hamilton, who showed her a series of photographs from which she identified Galloway.   Hunt said she noticed that (unlike the photo) Galloway was “bald headed” when she had seen him (the day before) in the restaurant parking lot.   About four days after the shooting, Hunt saw Galloway and Clifton sitting together in a car.   She said as she rode past, Clifton looked up and pointed at her, but she kept going and went home.   About three hours later, Galloway came to her house and asked if Holton or Holton's son, Del, lived there, to which she answered “no.”   A week or so later, Clifton came to Hunt's house and asked her if someone new had moved onto the block.   About three days after that, Galloway returned to Hunt's house and also asked if someone new had moved onto the block.   Hunt said because she was “scared,” she called the detectives who were in charge of the case “sometime after that.”   On April 12, 1996, while testifying before a grand jury, Hunt viewed a series of photos and identified Clifton.

The State also called Philander Jenkins, who testified that he had been a member of the Gangster Disciples.   Jenkins stated that he was arrested by federal authorities on November 6, 1997, after having sold $4,500 worth of cocaine to a federal informant.   Because he was facing a possible penalty of up to life in prison without possibility of parole, Jenkins said he began cooperating with federal authorities.   Jenkins also stated that the first time he said anything about the instant case was in mid-February 1998 when he talked to ASA Brian Sexton about it.   According to Jenkins, though he spoke to federal authorities several times following his arrest in November 1997, they did not ask him about this case.

Jenkins testified further that he was a Gangster Disciple on August 31, 1995, when 39 members of the gang were indicted in federal court.  (Neither Jenkins nor any of the principals in this case was among those indicted.)   Jenkins named three of the 39 who he said were board members, which is the rank just below Larry Hoover, the head of the Gangster Disciples.   In addition, Jenkins named another of the 39 who he said was a governor, which is the next rank below a board member.   Following the August 31 indictments, Jenkins became a regent, which is below a governor.   Jenkins identified Clifton in court and said Clifton was his governor.

Jenkins also averred that around September 1995, a man named Chuck was running the Gangster Disciples for the entire city.   In January 1996, Chuck was murdered, and Jenkins said he subsequently learned that there had been friction between Chuck and Holton, who held the rank of board member.   According to Jenkins, Holton “felt that he should have had the city and not Chuck.”

About two months later, in March 1996, Jenkins saw Clifton with a man he subsequently learned was Galloway.   A couple of days after that, about four days before Holton's murder, Jenkins attended a Gangster Disciples meeting which he said was called to reassure the members that, despite the previous indictments, “the gang was still going strong.”   Both Clifton and Galloway were at the meeting.   Galloway introduced himself as a (Gangster Disciples) board member, and Clifton, who Jenkins said had a cast and was using crutches, introduced himself as a governor.   According to Jenkins, at one point Clifton asked those present if they would kill a board member or governor if they were required to, and they answered yes.

A couple of days later (about two days before Holton's murder), Jenkins said he met with Clifton in response to a page from a gang member named Onion, and Clifton told Jenkins he was “having a problem” and “needed a couple of units,” meaning guns.   Jenkins obtained a .380 automatic and a Tech 9, and gave them to Clifton.   About two weeks after Holton's murder, Jenkins said he gave $500 to a board member named “Godfather,” and gave as his reason:  “so Melvin [Clifton] could leave town.”

Prior to cross-examination by Clifton's counsel, the parties stipulated that Jenkins was debriefed by federal law enforcement officials five times between November 6, 1997, and February 9, 1998.   On cross-examination, Jenkins reasserted that during those debriefings, he never told federal authorities that he had any information about Holton's murder.   On redirect, Jenkins stated that no one ever identified for him the kind of weapon that was used in Holton's murder.

The State also called Dr. Thamrong Chira, a Cook County medical examiner who performed an autopsy on Holton on March 11, 1996.   Dr. Chira testified that Holton had a single gunshot wound entering at the back of his neck on the left side.   There was no evidence of close-range firing, which meant that the muzzle of the gun had to be more than 18 inches from the entry wound.   Dr. Chira also said the bullet traveled from left to right and from back to front and was found on the right side of Holton's neck.   Given those two factors, Dr. Chira said it was more likely that the shooter was in the back seat behind the driver (Clifton's position) rather than on the passenger side.   On cross-examination by Clifton's counsel, Dr. Chira conceded that if the person on the passenger side had leaned forward and shot the driver first and then turned and shot Holton on an angle from where the driver was located, it was possible that Holton could have been shot by someone in the rear passenger seat.   Dr. Chira said the shot had to have come from a little to the left and behind the victim.

The parties stipulated that if Robert Smith, a Chicago police department firearms examiner, were called, he would testify that in his opinion the fired bullet recovered from Christ Hospital (from Brown's clothes) had the same class characteristics as having been fired from a .380 automatic pistol.   Smith would testify that in his opinion the same was true of a fired bullet recovered from Holton's body, and of five cartridge casings recovered from the scene of the shootings.

The State next called Thomas Richardson, a detective in the Chicago police department's gang crimes unit who also was detailed to an ongoing federal investigation of the Gangster Disciples.   Richardson's testimony corroborated that of Philander Jenkins as to the gang's leadership hierarchy and the August 31, 1995, federal indictments of 39 Gangster Disciples.   Richardson also stated that Holton, the murder victim, had been a board member for two to three years prior to the August 31 indictments and that he was elevated to that position because he was “a very prosperous narcotics dealer on the South Side” and had “a lot of money” and “a lot of power.”   According to Richardson, after the 39 were indicted, Chuck Dorsey “was given the OK” by Gangster Disciples leader Larry Hoover to take control of the city for the gang.   On January 4, 1996, Dorsey was shot and killed.

The State's next witness, Chicago police detective John Hamilton, testified that on April 26, 1996, the Federal Bureau of Investigation (FBI) notified him that Clifton had been taken into custody in Fort Wayne, Indiana.   Hamilton and his partner, Detective Timothy Bagdon, went to Fort Wayne and talked to Clifton that evening in an office in the Allen County jail.   Upon being asked if he knew where Galloway was, Clifton said he had not seen Galloway since “that date,” which he explained was the day Holton was killed.

Galloway was arrested in Chicago on April 30, 1996, and Hamilton said he and Bagdon spoke with him that day.   After being advised of his rights, Galloway told them he was a board member with the Gangster Disciples and that he had known Clifton for several years and they were friends.   Galloway also said he knew Holton (the murder victim) but that he and Holton were “not close.”   According to Galloway, Holton had not earned his way up through the ranks as others in the gang had but instead was given his position as a board member “because of his money.”   Galloway said Holton was not well liked for that reason and “because he threw his weight around.”   Galloway also denied any knowledge of or involvement in Holton's murder.

Hamilton testified further that he and Bagdon returned to Fort Wayne, Indiana, on May 3, 1996, to bring Clifton back to Cook County. During the drive back to Chicago, Clifton asked Hamilton what was up with his case, and Bagdon advised Clifton of his rights.   Hamilton said Clifton then had a conversation with them, stating that he was a governor in the Gangster Disciples and that he knew Galloway and had known him for several years.   Clifton also said he knew Holton and knew that he was a board member in the gang.   Clifton also denied any knowledge of or participation in Holton's murder.

On cross-examination by Clifton's counsel, Hamilton conceded that when he showed Eddie Brown a photo array that included Clifton's photo, Brown never told him that he saw Clifton with a gun.

The juries found each defendant guilty of the first degree murder of Holton and of attempted first degree murder and aggravated battery with a firearm in the shooting of Brown.   As noted previously, Galloway was sentenced to a total of 120 years in prison, and Clifton received sentences totaling 80 years.   These two consolidated appeals followed.

ANALYSIS

Hearsay

Galloway argues on appeal that portions of the testimony given by Philander Jenkins and Detective Thomas Richardson were hearsay and that the trial court abused its discretion by admitting that testimony.   We agree in part with Galloway that portions of the testimony to which he objected were hearsay, but we conclude that as to those portions, any error in admitting them was harmless.

A. Philander Jenkins' Testimony

According to Galloway, the following portions of testimony given by Jenkins over objection constituted inadmissible hearsay:  (1) that after Chuck Dorsey's murder, Jenkins learned from talking to other Gangster Disciples that there had been tension between Holton and Dorsey and that Holton felt he should have been running the gang's Chicago operation instead of Dorsey;  (2) that during a Gangster Disciples meeting that Jenkins attended shortly before the shootings, Clifton asked those present if they would kill a board member or governor;  and (3) that Clifton told Jenkins two days before the shootings that he needed “units,” meaning guns.

 The first of the foregoing statements is clearly based on inadmissible hearsay.   Jenkins testified that he did not know Holton personally and that he learned of the conflict between Holton and Dorsey from talking to other gang members.   Thus Jenkins described a conflict of which he had no personal knowledge and about which he learned from others who were not subject to cross-examination at trial.   This meets the definition of rank hearsay.   See People v. Rogers, 81 Ill.2d 571, 577, 44 Ill.Dec. 254, 411 N.E.2d 223, 226 (1980) (hearsay defined as “testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter”).   The mere fact that the sources of his information refer to more than one person does not change the character of this testimony as rank hearsay.   Cf. Galindo v. Riddell, Inc., 107 Ill.App.3d 139, 145, 62 Ill.Dec. 849, 437 N.E.2d 376, 381 (1982) (testimony about results of survey held to be inadmissible hearsay where survey not shown to have used methods generally accepted in scientific community to produce statistically accurate results).   Furthermore, there can be no question that the statement was offered for the truth of the matter asserted:  namely, that Holton was in a power conflict with Dorsey as a basis upon which Clifton and Galloway presumed Holton to be Dorsey's killer.   See Rogers, 81 Ill.2d at 577, 44 Ill.Dec. 254, 411 N.E.2d at 226.   As the trial court noted in a conference out of the presence of the juries, that testimony was “classic hearsay.”

 The second of the foregoing statements, namely, Clifton's question about killing a board member or a governor, is also inadmissible hearsay with respect to Galloway.   The State argues that the question is admissible because it was offered not for the truth of the matter asserted but “for the purpose of showing that defendant Galloway was on notice and had knowledge of certain events that took place before the crime.”   See People v. Sanchez, 189 Ill.App.3d 1011, 1016, 137 Ill.Dec. 514, 546 N.E.2d 268, 271 (1989).   We disagree.   If the question were offered to show that Galloway was hatching a plot or attempting to recruit gang members to participate in the killing of a gang official, it clearly would be inadmissible in that it was being offered for the truth of its content.   If on the other hand it is offered, as the State contends, to show that Galloway was put on notice that some sort of recruitment was being mounted, such notice on Galloway's part is insufficiently relevant even as part of the chain of evidence necessary to establish Galloway's culpability.   Since it was established by direct testimonial evidence at trial that Galloway was present when the crime took place and that he shot Eddie Brown, the only question as to Galloway upon which there was merely circumstantial evidence was whether it was Galloway or Clifton who shot Holton.   Thus the only apparent purpose as to Galloway for the State to offer Clifton's question would be toward establishing the accountability of Galloway for Holton's murder even if the actual shooting were done by Clifton.   As shall be discussed later, accountability can be shown by a number of factors including the defendant's presence during the planning of the crime.   See People v. Walker, 230 Ill.App.3d 377, 388, 171 Ill.Dec. 732, 594 N.E.2d 1252, 1259 (1992).   However, establishing that Galloway had notice of Clifton's possible recruitment of fellow gang members to kill a gang official is too remote to help establish Galloway's involvement in that killing, even in conjunction with other evidence.   See People v. Floyd, 117 Ill.App.3d 168, 173, 72 Ill.Dec. 725, 453 N.E.2d 30, 33 (1983) (state-of-mind exception to hearsay rule applies only where declarant's state of mind is relevant to a material issue in the case).

 The third statement, Clifton's telling Jenkins that he needed guns, is on its face rank hearsay being introduced for the truth of its content.   The State presents no argument to suggest that this statement is admissible under any exception to the hearsay rule or that it can be viewed as a verbal act.   We do not mean to imply, however, that Jenkins' testimony that he gave two guns to Clifton was hearsay.   That statement was clearly based on Jenkins' personal knowledge, and no statement by an out-of-court declarant was involved.

B. Detective Richardson's Testimony

 According to Galloway, the following testimony by Detective Richardson was hearsay:  (1) that Galloway was a board member in the Gangster Disciples in late 1995 or early 1996;  (2) testimony as to the internal organization of the Gangster Disciples:  that Larry Hoover was the leader, and that below him, in rank order, were the board members, governors, regents, coordinators, and soldiers;  (3) that 39 members of the Gangster Disciples were indicted on August 31, 1995, including some board members and governors;  (4) that the murder victim, Holton, was a board member, a position he held for two or three years prior to August 31, 1995, and that he became a board member because he was a “very prosperous narcotics dealer on the South Side” and thus had “a lot of money” and “a lot of power”;  and (5) that after the 39 were indicted in August 1995, Hoover gave “the OK” for Chuck Dorsey to take control of the city of Chicago for the gang and that Dorsey was murdered on January 4, 1996.

 Police testimony regarding gang activity is admissible if (1) it qualifies as expert opinion, (2) it is relevant, and (3) its prejudicial effect does not outweigh its probative value.  People v. Cruzado, 299 Ill.App.3d 131, 141, 233 Ill.Dec. 179, 700 N.E.2d 707, 714-15 (1998);  People v. Davenport, 301 Ill.App.3d 143, 150, 234 Ill.Dec. 169, 702 N.E.2d 335, 341 (1998).   Regarding the first prong of this test, a witness qualifies as an expert if, “because of his skill, training, or experience, he is better able to form a more accurate opinion as to the matter under consideration than is an ordinary person.”  People v. Ayala, 208 Ill.App.3d 586, 593, 153 Ill.Dec. 492, 567 N.E.2d 450, 455 (1990).   Specialized formal training is unnecessary, and experience alone can qualify a witness as an expert.  Ayala, 208 Ill.App.3d at 593, 153 Ill.Dec. 492, 567 N.E.2d at 455.   So long as the testimony is based upon information “of a type reasonably relied upon by experts in the field,” it is proper “even though the information may not be admissible in evidence.”  People v. Jackson, 145 Ill.App.3d 626, 634, 99 Ill.Dec. 472, 495 N.E.2d 1207, 1214 (1986).

Detective Richardson clearly qualifies as an expert.   He testified at trial that he had been a Chicago police officer for 27 years and a gang specialist for 18.   His main function as a gang specialist was to monitor and obtain information about street gangs, including the Gangster Disciples.   Further, since 1992 he had been detailed to an investigation with federal authorities into the Gangster Disciples.   See Ayala, 208 Ill.App.3d at 590, 593-94, 153 Ill.Dec. 492, 567 N.E.2d at 453, 455 (holding qualified as expert a gang crimes specialist with two years' experience in neighborhood where crime occurred);  Jackson, 145 Ill.App.3d at 634, 99 Ill.Dec. 472, 495 N.E.2d at 1214 (gang specialist with five years' experience in investigation of gangs in the area held qualified as expert).

However, it still must be determined whether the testimony that Richardson gave at trial qualified as expert opinion.   For purposes of our analysis, Richardson's testimony can be divided roughly into two categories:  (1) that dealing with the internal hierarchy and structure of the Gangster Disciples, and (2) testimony dealing with more specific matters such as that Holton acquired his board-member position because of his money and power, or that Chuck Dorsey “was given the OK by Larry Hoover” to take control of the city for the gang.   As to the first category, there is little question that it qualifies as expert opinion.   In People v. Cruzado, 299 Ill.App.3d 131, 233 Ill.Dec. 179, 700 N.E.2d 707 (1998), a gang crimes specialist's testimony as to matters such as gang structure was held to qualify as expert opinion where there was “no showing that the average layperson has any understanding of the inner workings of gangs * * * or of the jury's common knowledge of them.”   Cruzado, 299 Ill.App.3d at 141, 233 Ill.Dec. 179, 700 N.E.2d at 715.   There was no such showing in the instant case.   See also People v. Davenport, 301 Ill.App.3d 143, 150, 234 Ill.Dec. 169, 702 N.E.2d 335, 341 (1998) (holding that it was reasonable to conclude that a “layperson does not have the same opportunity to observe and learn about the detailed hierarchy and activities of street gangs as did [gang specialist who testified]”).

Richardson's more detailed testimony also qualifies as expert opinion.   Similar testimony has been held by other courts to be admissible.   In Jackson, for example, a gang specialist not only explained the “organizational structure of the ‘Black Disciples' around 4410 South State [in Chicago],” he also “identified Ricky Knight as the leader of the unit at 4410 South State, defendant as second in command, and Fields, known as ‘Stokes' or ‘Boo Boo,’ as the number three man in the unit.”  Jackson, 145 Ill.App.3d at 630-31, 99 Ill.Dec. 472, 495 N.E.2d at 1212.   That testimony was held admissible, with the court emphasizing that it was based “on many different sources, including personal observation and gang infiltration, and [the gang specialist's] testimony that he verified and investigated information learned from others.”  Jackson, 145 Ill.App.3d at 634, 99 Ill.Dec. 472, 495 N.E.2d at 1214;  cf.  People v. Washington, 127 Ill.App.3d 365, 386-87, 82 Ill.Dec. 505, 468 N.E.2d 1285, 1300-01 (1984) (investigator's testimony regarding defendant's gang membership held inadmissible where based solely on information from one unnamed informant).   The court in Jackson concluded that the gang specialist's testimony “appear[ed] to be based on facts or data reasonably relied upon by experts in the field of street gangs” (Jackson, 145 Ill.App.3d at 634, 99 Ill.Dec. 472, 495 N.E.2d at 1214), explaining:

“As a matter of practicality, the method of information gathering used by [the gang specialist] is probably the only way a non gang member can accumulate details of gang activity and membership rank.   Furthermore, [the gang specialist's] testimony is based on more data than are available to an average layperson” (Jackson, 145 Ill.App.3d at 634, 99 Ill.Dec. 472, 495 N.E.2d at 1214-15).

Thus the Jackson court stressed the pragmatic necessity for accessing a number of different sources, as well as the gang specialist's superior capability (compared to that of the layperson) in accessing those sources.

Similarly, in People v. Mendez, 221 Ill.App.3d 868, 871, 164 Ill.Dec. 321, 582 N.E.2d 1265, 1267 (1991), a Chicago police gang crimes specialist testified that two rival gangs existed in the area where a shooting took place and that the petitioner was a member of one of them.   The court held that the testimony was properly admitted.  Mendez, 221 Ill.App.3d at 874, 164 Ill.Dec. 321, 582 N.E.2d at 1270.

Likewise, the California decision in People v. Gamez, 235 Cal.App.3d 957, 286 Cal.Rptr. 894 (1991), is instructive.   In that case, which involved a drive-by shooting arising from a dispute between the rival Southside and Highland Street gangs, one gang expert “opined [that] the shooting was a ‘pay-back’ for a prior shooting by Highland Street against Southside.”  Gamez, 235 Cal.App.3d at 964, 286 Cal.Rptr. at 896.   Another expert “opined [that] defendant was a member of Southside.”  Gamez, 235 Cal.App.3d at 964, 286 Cal.Rptr. at 896.   The defendant argued that such testimony was nothing more than hearsay, but the court disagreed, explaining:

“We fail to see how the officers could proffer an opinion about gangs, and in particular about gangs in the area, without reference to conversations with gang members.  * * * To know about the gangs involved, the officers had to speak with members and their rivals.   Furthermore, the officers did not simply regurgitate that which they had been told.   Rather, they combined what they had been told with other information, including their observations, in establishing a foundation for their opinions.”  Gamez, 235 Cal.App.3d at 968, 286 Cal.Rptr. at 899-900.

The method described by the Gamez court is essentially the same as the one approved in Jackson:  talking to gang members and their rivals and combining that information with information from other sources in arriving at the expert's testimony.   See generally Note, The Limitations of Daubert and its Misapplication to Quasi-Scientific Experts, 35 Washburn L.J. 134, 140-47 (1995) (discussing the inappropriateness of applying the Daubert factors to nonscientific testimony such as that of a police gang crimes expert).

In the instant case, Richardson's testimony also was drawn from a variety of sources.   Early in his testimony, he described the various ways in which he was able to monitor the Gangster Disciples:

“The best way is to get out on the street and you get in with the gang, the gang members.   You talk to them.   You talk to rival gang members.   We go to different penitentiaries.   You talk to members that are incarcerated.   We work with C/Is, that's confidential informants, concerned citizens.   We deal with the Board of Education, the CAPS program.   We deal with outside agencies.   Like I said before, the federal government, DEA, FBI, Secret Service, Immigration.   We deal with all the suburban police departments.   I have contacts in New York, L[os] A[ngeles], Florida, and Texas.   We keep in contact with all the gang agencies throughout the United States.”

Unlike the investigator in Washington, Richardson drew on a variety of sources including conversations on the street with Gangster Disciples and rival gang members, talks with incarcerated gang members, information gleaned from confidential informants, and contacts with outside agencies such as the FBI and suburban police departments.   Because of his role as a gang crimes specialist, he was able to access those sources using a method which, as the Jackson court noted, “is probably the only way a nongang member can accumulate details of gang activity and membership rank.”  Jackson, 145 Ill.App.3d at 634, 99 Ill.Dec. 472, 495 N.E.2d at 1215.   Accordingly, consistent with established precedent, we believe that Richardson's evidence qualified as expert testimony.

 As to the second prong of the admissibility test, Richardson's testimony is relevant to the State's gang-related motive.  “Relevant evidence is that which has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable than it would be without the evidence.”  Davenport, 301 Ill.App.3d at 150-51, 234 Ill.Dec. 169, 702 N.E.2d at 341-42.   Further, though courts acknowledge that there may be strong prejudice against street gangs, particularly in metropolitan areas, it is nevertheless well established that “[g]ang-related evidence is admissible to show common purpose or design or to provide a motive for an otherwise inexplicable act.”  Davenport, 301 Ill.App.3d at 151, 234 Ill.Dec. 169, 702 N.E.2d at 342;  Cruzado, 299 Ill.App.3d at 142, 233 Ill.Dec. 179, 700 N.E.2d at 715.  “However, such evidence must relate to the crime charged.”   Davenport, 301 Ill.App.3d at 151, 234 Ill.Dec. 169, 702 N.E.2d at 342.

Here, as noted, Richardson's testimony is relevant to the State's gang-related motive, and it is thereby related to the crime charged.   His testimony about the indictment of the 39 Gangster Disciples (including some high-ranking members) helped support the State's claim that there was a leadership vacuum in the gang.   Richardson also testified that Hoover had named Dorsey to his city-wide leadership post and that Dorsey was subsequently killed, that Holton attained his board member position primarily because of his money and power (and, by implication, not because of merit), and that Galloway and Clifton held leadership positions in the gang below Hoover.   If Hoover named Dorsey to his post, it is not unlikely that he would be angry that Dorsey was killed, nor is it unlikely that Galloway and Clifton, as gang leaders below Hoover, might be motivated to kill Holton in retaliation.   Thus Richardson's testimony tended to show that defendants had a motive for killing Holton and shooting Brown, and his testimony thus is relevant because it rendered it more likely that they did commit those crimes. See People v. Smith, 141 Ill.2d 40, 56, 152 Ill.Dec. 218, 565 N.E.2d 900, 906 (1990).   The same reasoning applies to the testimony of Jenkins, which also was clearly relevant.

It is also manifestly apparent that Richardson's testimony is more probative than prejudicial, thus satisfying the third prong of the test.   As noted, gang-related evidence, even though it might be prejudicial, is admissible “to provide a motive for an otherwise inexplicable act.”  Davenport, 301 Ill.App.3d at 151, 234 Ill.Dec. 169, 702 N.E.2d at 342.   Here, were it not for the gang-related evidence, the killing of Holton and the shooting of Brown would be inexplicable.   According to the competent evidence presented at trial, the shootings occurred shortly after Galloway and Clifton entered Brown's car.   Sitting in the back seat, Galloway talked briefly with Brown, the driver, about the Chicago Bulls game earlier that day.   Then, in response to a question from Holton, Clifton said he was waiting for a call on his cell phone.   Shortly thereafter, Holton was killed and Brown was shot five times and apparently left for dead.   There was no evidence suggesting that this was a drug deal gone sour or indeed suggesting any other motive at all for the shootings.   Richardson's gang-related evidence helped establish a motive for these otherwise inexplicable acts and therefore was not more prejudicial than probative.   See Cruzado, 299 Ill.App.3d at 142, 233 Ill.Dec. 179, 700 N.E.2d at 715;  Davenport, 301 Ill.App.3d at 151, 234 Ill.Dec. 169, 702 N.E.2d at 342.   The same is true of Jenkins' testimony, and we therefore reject the argument that it was more prejudicial than probative, and offered solely to inflame the jury.

 Even if Richardson's testimony were inadmissible hearsay, it would not necessitate reversal.   As previously noted, any error in admitting hearsay testimony was harmless in view of the overwhelming, non-hearsay evidence against Galloway.   See People v. Grant, 69 Ill.App.3d 940, 944, 26 Ill.Dec. 257, 387 N.E.2d 1087, 1091 (1979) (trial error deemed harmless where evidence supporting defendant's conviction is so overwhelming that the conviction would result even if the error was eliminated);  Davenport, 301 Ill.App.3d at 153, 234 Ill.Dec. 169, 702 N.E.2d at 343 (error deemed harmless where court is satisfied beyond reasonable doubt that it did not contribute to defendant's conviction).

Here, Eddie Brown, the surviving victim, identified Galloway as the man who shot him five times, three of them while Brown was still in the car where Holton was killed.   Brown also identified Clifton as the man accompanying Galloway.   Thus Galloway was placed by competent testimony with Clifton in the car where (and when) the murder and attempted murder took place, and holding (and firing) a gun of the same caliber as one of the guns that Philander Jenkins testified he gave Clifton a couple of days earlier.   As to the gang-related testimony of Jenkins and Richardson, Galloway himself admitted to Detective Hamilton that he was a board member in the Gangster Disciples;  that he had known Clifton for several years;  and that he knew Holton, who Galloway said had gotten his position as a board member because of his money instead of earning his way up through the ranks.   Hence, even if any error in admitting hearsay testimony were eliminated, the evidence remaining against Galloway would still have been overwhelming.   Thus Galloway suffered no manifest prejudice (see People v. Lucas, 151 Ill.2d 461, 489, 177 Ill.Dec. 390, 603 N.E.2d 460, 473 (1992)), and it would be reasonable to conclude that any error in admitting hearsay would not have contributed to his conviction (see Davenport, 301 Ill.App.3d at 153, 234 Ill.Dec. 169, 702 N.E.2d at 343).¹

[Editors' Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following material is non-publishable under Supreme Court Rule 23.]

II. Discovery violation 2

Clifton also argues that the State committed a discovery violation when it added Philander Jenkins' name to its witness list on February 19, 1998, the day jury selection was scheduled to begin.   Clifton thus contends that the trial court abused its discretion by allowing Jenkins' named to be added and by allowing his testimony.   We disagree.

“The standard of review for a discovery violation is whether the trial court abused its discretion.”  People v. Matthews, 299 Ill.App.3d 914, 918, 234 Ill.Dec. 125, 702 N.E.2d 291, 294 (1998).   An abuse of such discretion exists where the defendant is prejudiced by the discovery violation and the trial court fails to eliminate the prejudice.  Matthews, 299 Ill.App.3d at 918, 702 N.E.2d at 294.

As previously noted, on February 5, 1998, the trial court granted defendants' motion in limine to bar Detective Richardson from testifying at trial about a gang-related motive for the shootings.   Two weeks later, on February 19, the State moved to allow gang-related evidence as motive, including the testimony of Detective Richardson and of Philander Jenkins, who ASA Brian Sexton said he recently learned was a Gangster Disciple who was cooperating with federal authorities in their investigation of the gang.   The State also filed a supplemental answer to discovery adding Jenkins' name to its list of potential witnesses.   Clifton's counsel voiced concern that Jenkins' name was added as a new witness “at the very last moment.”

On March 3, 1998, Jenkins appeared at a pretrial hearing to determine whether his testimony about gang-related activity was relevant, and whether the State's addition of Jenkins' name on the eve of trial was a discovery violation.   Regarding the alleged discovery violation, ASA Sexton told the court that he had not talked to Jenkins until February 17, 1998 (two days before Jenkins' name was added to the witness list).3  Sexton said he talked to Jenkins after having learned that there was a federal investigation of the Gangster Disciples, and after being told that “there were certain witnesses that may have some information.”

Jenkins' testimony at the hearing was essentially the same as his testimony at trial.   As to the alleged discovery violation, Jenkins testified that the first time he spoke to ASA Sexton was in February 1998 (February 12) and that the meeting lasted only a few minutes.   A second meeting occurred on February 17, 1998, during which Jenkins told Sexton what he knew about Holton's murder.   According to Jenkins, that was the first time he had told anyone what he knew about the case.   On cross-examination, Jenkins stated that Sexton was the only law enforcement official with whom he had discussed his knowledge of Holton's murder.   He testified that from November 6, 1997, when he was first debriefed by federal officials, until he met with Sexton in February 1998, he never volunteered during any debriefing session that he knew anything about Holton's murder.   Jenkins added that he was never asked during any of his debriefing sessions if he had knowledge of any murders committed by Gangster Disciples.   Jenkins was cross-examined by both defendants not only as to the alleged discovery violation but also as to his gang-related testimony.

Following Jenkins' testimony, Clifton's counsel expressed doubt that Jenkins had not been questioned about any Gangster Disciples murders (including Holton's) prior to his speaking with Sexton.   In that same vein, the trial court told Sexton that it “defies common sense that on the eve of trial, when a motion concerning gang activity offered by a police officer [Richardson] is denied, now you have a gang member who is suddenly discovered.”   The court entered an order notifying the U.S. attorney that the court wished to examine in camera any notes or memoranda concerning the debriefings of Jenkins from the date of his initial cooperation (November 6, 1997) to February 17, 1998.   On March 6, 1998, the State tendered to the court the requested documents consisting of 22 pages and comprising seven reports.4  The court examined them and stated that they included “[n]ot one reference to a homicide of any sort,” adding that they “pertain to an investigation totally unrelated to anything that's been discussed in these proceedings.”   The court noted that during the March 3 hearing, defendants cross-examined Jenkins “on the questions going directly to the possibility of * * * discovery violation.”   The court concluded that it could find no discovery violation, and granted the State's motion to introduce evidence of gang-related activity through Jenkins.

The trial court's conclusion that there was no discovery violation was not an abuse of discretion.   According to testimony presented at both the pre-trial hearing and at trial, the State did not learn of the existence of Jenkins as a witness until shortly before February 19, 1998, the date when Jenkins' name was added to its witness list.   See People v. Shiflet, 125 Ill.App.3d 161, 180, 80 Ill.Dec. 596, 465 N.E.2d 942, 955 (1984) (the State need not inform a defendant of a witness' name until it forms the intent to call him, even if during trial).   Further, any prejudice that defendants might have suffered was eliminated when the trial court made Jenkins available to defendants' counsel prior to trial.   As noted, at that hearing counsel heard Jenkins' testimony and cross-examined him not only as to his gang-related testimony but also as to the alleged discovery violation.   See Shiflet, 125 Ill.App.3d at 179-80, 80 Ill.Dec. 596, 465 N.E.2d at 954-55 (where witness was undisclosed, any prejudice or surprise to defendant was blunted by defendant's interview of witness prior to his testimony and by defendant's opportunity to cross-examine).

III. Clifton's speedy trial claim

Clifton next argues that he was not tried within 120 days as required by the speedy trial statute (725 ILCS 5/103-5 (West Supp.2000)), and therefore his counsel's failure to move for dismissal for lack of a speedy trial denied him effective assistance of counsel.   We disagree.

The speedy trial statute states in pertinent part:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *.”  725 ILCS 5/103-5(a) (West Supp.2000).

The statute's 120-day period begins to run automatically when a defendant is taken into custody.  People v. Sojak, 273 Ill.App.3d 579, 582, 210 Ill.Dec. 85, 652 N.E.2d 1061, 1064 (1995).  “A delay is attributable to the defendant when his act in fact causes or contributes to the delay.”  People v. Plair, 292 Ill.App.3d 396, 398, 226 Ill.Dec. 679, 686 N.E.2d 28, 31 (1997).  “Agreed continuances, made on the record, for example, constitute affirmative acts of delay attributable to the defendant and will suspend the speedy trial period.”  Plair, 292 Ill.App.3d at 398, 226 Ill.Dec. 679, 686 N.E.2d at 31.  “The decision as to accountability for delay is within the discretion of the trial court and should not be disturbed absent a clear abuse of discretion.”  People v. Andrade, 279 Ill.App.3d 292, 296, 215 Ill.Dec. 859, 664 N.E.2d 256, 260 (1996).

In Clifton's case, the speedy trial period began to run on May 3, 1996, when he was arrested by Chicago police.   The indictment was filed with the clerk of the circuit court on May 29, 1996, and Clifton was arraigned on June 4, 1996.   At that point both sides agree that 32 days had elapsed on the speedy trial clock, leaving the State 88 days in which to bring Clifton to trial.   Clifton concedes that the statute was tolled between June 4, 1996, and July 14, 1997, “by either defense motions or agreed continuances.”

The first disputed period is the six days between August 6 and August 12, 1997.   On July 14, 1997, ASA Brian Sexton and counsel for defendant Galloway appeared before the trial court for a status hearing.   Counsel for Clifton was not present.   Galloway's counsel asked that the next status hearing be set for August 6, but the judge stated that he would be on vacation and would not be available on that date.   Galloway's counsel then suggested August 12 or 13, and the trial court set it for August 12, 1997.   Clifton argues that the six-day delay between the first suggested date of August 6 and the August 12 date set by the trial court was caused by the court's schedule and therefore is not attributable to defendant.   We disagree. First, Clifton's counsel was not present at the hearing.  “A delay is properly charged to a defendant if his counsel was engaged elsewhere.”  People v. Sojak, 273 Ill.App.3d 579, 584, 210 Ill.Dec. 85, 652 N.E.2d 1061, 1066 (1995).   Second, this is not a situation such as that discussed in People v. Beyah, 67 Ill.2d 423, 10 Ill.Dec. 568, 367 N.E.2d 1334 (1977), a case relied upon by Clifton, where the trial court in essence took the affirmative step of setting a trial date that was later than the date requested by the defendant.  Beyah, 67 Ill.2d at 428, 10 Ill.Dec. 568, 367 N.E.2d at 1336.   Here, it was defendants who affirmatively requested what amounted to a continuance to a specific date, August 6, 1997, and the trial court merely stated that it could not accommodate them on that date.   To hold that such a delay is attributable to the court's schedule would be tantamount to saying that requests for continuance must be granted on the date requested.   Moreover, according to the memoranda of orders, or “half-sheets,” included in the common law record, the continuance from July 14, 1997, to August 12, 1997, was by agreement.   Thus the six-day delay from August 6 to August 12, 1997, is attributable to Clifton, and the statute therefore was tolled from July 14 to August 12.

Clifton concedes that between August 12, 1997, and December 1, 1997, the statute was tolled by agreed continuances.   On December 1, 1997, Clifton's counsel answered ready and demanded trial, but ASA Sexton indicated that he was not ready because he was engaged in another trial.   The case was continued to January 26, 1998, on motion by the State.   On January 26, the case was continued to February 5, again on motion by the State.   At that point, 98 days had elapsed on the speedy trial clock, leaving the State 22 days in which to bring Clifton to trial.

The next disputed period is the 14 days between February 5 and February 19, 1998.   On February 5, the State asked that the case be continued to February 19 because one of its main witnesses, Detective John Hamilton, was in Arizona and would not be back until February 18.   The State indicated that “otherwise” it was ready for trial.   According to the record, that continuance was granted on motion by the State as to Clifton.   However, before granting the continuance, the trial court heard argument on defendants' motion in limine to bar testimony concerning gang activity.   The motion was granted as to the testimony of gang crimes specialist Richardson but not as to portions of Clifton's own gang-related statements to the police.   Sexton then asked if he could “follow up with a written response to the motion in limine,” and the court granted the request.

The State argues that even though the case was continued to February 19 on motion by the State, that continuance is also attributable to the defense.   According to the State, it requested the delay not only because one of its main witnesses was unavailable, but also in order to respond to defendants' motion in limine to bar gang evidence.   Clifton disagrees, arguing that “[t]here was no defense motion to respond to” because the trial court had already granted it.   We agree with the State.   As noted, the trial court did not grant the motion in its entirety, and the State was given leave to respond.  “A defendant is generally charged with delay caused by defense motions * * *.”  People v. Ladd, 185 Ill.2d 602, 608, 236 Ill.Dec. 773, 708 N.E.2d 359 (1999);  see also People v. Kliner, 185 Ill.2d 81, 235 Ill.Dec. 667, 705 N.E.2d 850, 870 (1998) (delay occasioned by processing of defendant's motions, including time required for State to respond and time necessary for court to hear and decide issues, is attributable to defendant).   Moreover, it is well established that “if there are two reasons for a delay, one attributable to the State and the other to the defendant, the fact that the delay was partially attributable to the defendant will be sufficient to toll the statutory term.”  People v. Plair, 292 Ill.App.3d 396, 398, 226 Ill.Dec. 679, 686 N.E.2d 28, 31 (1997).   In the instant case, at least part of the delay was caused by the State's need to respond to that portion of defendants' motion that had not been denied.   Accordingly, we conclude that the trial court erred in attributing the delay between February 5 and February 19 solely to the State (as to Clifton).   That period was attributable to the defense as well, and the statutory period thus was tolled.

The next period at issue is the one-day delay from February 19 to February 20, 1998.   As previously noted, it was on February 19 that the State submitted a motion to allow gang-related evidence as motive, including that of Richardson and of Philander Jenkins, who had been cooperating with federal authorities in an investigation of the Gangster Disciples.   Clifton's counsel voiced concern that Jenkins' name was submitted “at the very last moment,” and he indicated that he needed additional information about Jenkins such as any statements he had already given to federal authorities and any promises that had been made to him in exchange for his cooperation.   The trial court indicated it would direct the State to provide such information, adding that it would not rule on the State's motion before it heard Jenkins testify.   Clifton suggested a continuance until the next day “to see what documents would be made available to us,” and the request was granted.   At the conclusion of that day's proceedings, the judge asked if the continuance was “by agreement until tomorrow,” and Clifton's counsel expressly stated:  “On behalf of my client, by agreement until tomorrow.”

Clifton argues that this one-day delay was caused by the State's motion to allow gang-related evidence, and by the court's order to obtain additional information about Jenkins, and that it therefore is not attributable to the defense.   However, the delay was also caused by Clifton's oral opposition to the State's motion.   See Plair, 292 Ill.App.3d at 398, 226 Ill.Dec. 679, 686 N.E.2d at 31 (if a delay is partially attributable to the defendant, the statutory term will be tolled);  see also People v. Perkins, 90 Ill.App.3d 975, 979, 46 Ill.Dec. 388, 414 N.E.2d 110, 113 (1980).   As to the court's order for additional information, that order was clearly in response to statements by Clifton's counsel that he needed such information.   Further, it was Clifton's counsel who asked for the one-day delay, and he expressly stated that it was “by agreement.”   See Plair, 292 Ill.App.3d at 398, 226 Ill.Dec. 679, 686 N.E.2d at 31 (agreed continuances made on the record constitute affirmative acts of delay that are attributable to the defendant).   The half-sheets also indicate that the continuance was by agreement.   Accordingly, the statutory period was tolled for the one-day delay between February 19 and February 20.

Also in dispute is the period between February 20 and 27, 1998.   On February 20, the State (in response to the court's order) tendered a report generated by the U.S. attorney's office, as well as notes from the initial debriefing of Jenkins.   Clifton's counsel stated that he needed additional time to investigate the Jenkins matter, and he requested a one-week continuance.   On appeal, Clifton argues that the seven-day delay to February 27 should not be attributed to him because his request for the continuance came in response to the State's motion to allow Jenkins to testify.   Nevertheless, an additional reason for Clifton's request was his own opposition to the State's motion.   See Plair, 292 Ill.App.3d at 398, 226 Ill.Dec. 679, 686 N.E.2d at 31.   Further, it was Clifton's counsel who expressly asked for the one-week delay.   According to the record and the half-sheets, this continuance was by agreement.

Clifton relies upon People v. Perkins, 90 Ill.App.3d 975, 46 Ill.Dec. 388, 414 N.E.2d 110 (1980), but his reliance is misplaced.   In Perkins, the State informed the defense on the eve of trial (the 118th day of the speedy trial period) that the defendant had made “some type of inculpatory statement to the police.”  Perkins, 90 Ill.App.3d at 978, 46 Ill.Dec. 388, 414 N.E.2d at 113.   The defendant “was forced to make a motion to suppress the statement despite the possible impact on his speedy trial right,” and the court in Perkins held that the resulting delay could not be attributed to any fault of the defendant.  Perkins, 90 Ill.App.3d at 979, 46 Ill.Dec. 388, 414 N.E.2d at 113-14.   The court explained that it was “the State's inexcusable tardiness in completing discovery through the belated disclosure of an alleged statement of defendant [that] precluded trial from beginning prior to the running of the term.”  Perkins, 90 Ill.App.3d at 980, 46 Ill.Dec. 388, 414 N.E.2d at 114.   Because it was the State that caused the delay, the speedy trial term was not tolled.   As is seen in Perkins, courts look to the underlying factors upon which the defendant's motion or objection is predicated in determining whether a continuance is attributable to the defendant.   In the instant case, unlike in Perkins, the court ultimately ruled in favor of the State as to the cause of the delay.   On March 6, 1998, the trial court concluded that there had been no discovery violation on the part of the State.   Hence, any delays that came after February 19 (the date that Jenkins' name was first submitted), including the continuance from February 20 to the 27th, essentially were due to defendants' unwarranted opposition to Jenkins' testimony.   We therefore conclude that the one-week delay from February 20 to February 27, 1998, is attributable to the defense, and the statutory period thus was tolled.

On February 27, the date set for the pre-trial hearing as to Jenkins, the State asked for a continuance to March 3. The State argues that because both defense counsels assented to that continuance, it was (as is shown in the half-sheets) by agreement.   The record shows that Galloway's counsel responded, “That is fine with me,” and that Clifton's counsel answered, “That's fine.”   While “[a]n express agreement to a continuance on the record” is attributable to the defendant, “mere acquiescence to a date suggested by the court is not an affirmative act attributable to the defendant.”  People v. Healy, 293 Ill.App.3d 684, 690, 228 Ill.Dec. 88, 688 N.E.2d 786, 789-90 (1997).   We conclude that defense counsels' responses here were more in the nature of “mere acquiescence” and not “express agreement.”   It was the State that requested the four-day delay to March 3, and it is therefore attributable to the State.   At this point, 102 days had elapsed on the speedy trial clock.

The next period in dispute is the three days from March 3 to March 6, 1998.   As noted, on March 3 Philander Jenkins testified at a pre-trial hearing to determine the relevancy of his testimony and whether there had been a discovery violation.   At the conclusion of Jenkins' testimony, Clifton's counsel asked that the State be directed to obtain any notes of debriefings of Jenkins from November 6, 1997 (when he began cooperating with federal authorities) to the first time ASA Sexton met with Jenkins.   The trial court denied the request, but following a sidebar discussion the court stated that it would indeed enter such an order asking that the U.S. attorney's office forward (for in camera examination) any notes as to Jenkins' debriefings.   Clifton's counsel then asked the court:  “Today being Tuesday, could we come back Friday to see where we're at?”   The court asked if that continuance was by agreement, and Clifton's counsel answered:  “By me, Judge, yes.”

Clifton argues that this three-day delay “was occasioned by the court's order” and thus did not toll the statute.   However, the trial court's order seeking notes of Jenkins' debriefings clearly came in response to statements by Clifton's counsel.   It was Clifton's counsel who expressly asked for a continuance from March 3 to the 6th, and he expressly stated that it was by agreement.   The half-sheets also indicate that it was by agreement.   The three-day delay from March 3 to March 6 tolled the statutory period.

On March 6, 1998, as previously noted in our discussion of the alleged discovery violation, the trial court examined 22 pages of documents submitted by the State in response to the court's March 3 order.   The court stated that there was nothing in those documents that pertained to Jenkins' testimony, and thus the court concluded that there had been no discovery violation.   The case was continued to March 9 “by agreement,” with Clifton's counsel expressly stating:  “Yes. Over the weekend, by agreement.”   Thus the three-day delay from March 6 to March 9, 1998, also tolled the statutory period.

According to the common law half-sheets, on March 9 the case was continued by agreement to March 10, 1998, the date when jury selection began.   Clifton does not dispute this.   Thus, Clifton's trial began on the 103rd day of the statutory period, well within the required 120 days.   See People v. Ladd, 185 Ill.2d 602, 607-08, 236 Ill.Dec. 773, 708 N.E.2d 359 (1999) (when computing the time period under the speedy trial statute, the first day is excluded and the last day is included).   Except as noted, we conclude that the trial court's determinations as to the accountability for delay were not an abuse of discretion.

Because there was no violation of the speedy trial statute, Clifton's claim that he was denied effective assistance of counsel must fail.  “[W]hen no lawful grounds exist for a discharge under the speedy trial statute, the failure of counsel to move for discharge does not constitute the ineffective assistance of counsel.”  Plair, 292 Ill.App.3d at 400, 226 Ill.Dec. 679, 686 N.E.2d at 32.

V. Sufficiency of evidence:  accountability

Clifton also argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty either as a principal or on an accountability theory for the murder of Holton and the attempted murder of Brown.   We disagree.

When reviewing the sufficiency of the evidence in a criminal case, the relevant question is whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  People v. Brown, 169 Ill.2d 132, 152, 214 Ill.Dec. 433, 661 N.E.2d 287, 296 (1996).   The verdict “will not be overturned unless it is so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to the defendant's guilt.”   Brown, 169 Ill.2d at 152, 214 Ill.Dec. 433, 661 N.E.2d at 296.

Under Illinois law, a defendant is legally accountable for the conduct of another person if either “before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”  People v. Taylor, 164 Ill.2d 131, 140, 207 Ill.Dec. 1, 646 N.E.2d 567, 571 (1995).   Under the common design rule, which is incorporated into the law on accountability, “where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of the design by any one party are considered to be the acts of all parties to the common design, and all are accountable for those acts.”  People v. Basden, 264 Ill.App.3d 530, 548, 201 Ill.Dec. 487, 636 N.E.2d 919, 932 (1994).   “Further, proof of the common purpose need not be supported by words of agreement or direct evidence, but can be drawn from the circumstances surrounding the commission of an act by a group.”  Basden, 264 Ill.App.3d at 548, 201 Ill.Dec. 487, 636 N.E.2d at 932.  “Evidence indicating that the defendant was a member of a gang or was involved in a gang-related activity is admissible to show common purpose or design * * *.”  People v. Jones, 259 Ill.App.3d 905, 910, 198 Ill.Dec. 234, 632 N.E.2d 293, 296 (1994).   However, the group to which defendant belongs need not be a gang.  “Evidence that defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design also supports an inference that he shared the common purpose and will sustain his conviction for an offense committed by another.”   Taylor, 164 Ill.2d at 141, 207 Ill.Dec. 1, 646 N.E.2d at 571.

“Mere presence at the scene of the crime is not culpable conduct and knowledge that a crime is being committed is insufficient to establish aiding or abetting.”  People v. Johnson, 260 Ill.App.3d 558, 564, 198 Ill.Dec. 16, 632 N.E.2d 75, 79 (1994).  “Nevertheless, active participation has never been a requirement for the imposition of criminal guilt under an accountability theory.”  Taylor, 164 Ill.2d at 140, 207 Ill.Dec. 1, 646 N.E.2d at 571.   “One may aid and abet without actively participating in the overt act.”   Taylor, 164 Ill.2d at 140, 207 Ill.Dec. 1, 646 N.E.2d at 571.

Factors that may be considered by the jury, and which may raise an inference that an accused aided in the commission of a crime, include:  “(1) defendant's presence during the planning of the crime;  (2) defendant's presence at the scene of the crime without any negative reactions to it;  (3) acceptance of illegal proceeds from the actual perpetrator;  (4) flight from the scene, especially after the victim has been injured or killed;  (5) failure to report the incident;  and (6) defendant's continued association with the perpetrator after the criminal act.”  People v. Walker, 230 Ill.App.3d 377, 388, 171 Ill.Dec. 732, 594 N.E.2d 1252, 1259 (1992).

There was evidence that both Clifton and Galloway were members of the Gangster Disciples.   Both Clifton and Galloway told police that they were ranking members of the gang, and that they had known each other for years.   Additional evidence helping establish a common design or plan included testimony by Philander Jenkins that about four days before Holton was killed, Jenkins attended a Gangster Disciples meeting where both Galloway and Clifton were present.   At that meeting, Clifton asked those present if they would kill a Gangster Disciples board member or governor if required to do so.   It was established at trial that Holton was a board member.   This testimony by Jenkins also helped establish that Clifton was present during the planning of the crime.

There was clear evidence that Clifton was present at the scene of the crime and that he fled after the victim(s) were injured or killed.   The surviving victim, Eddie Brown, testified that Clifton and Galloway were the two men who got into the back seat of Brown's car the night of the murder (March 10, 1996), and that Clifton was in the car with Galloway at the time Brown (and Holton) were shot.   After being shot in the neck, the back and the hip, Brown got out of the car and tried to run but fell, and was lying in front of his car when he saw Galloway get out of the car, walk toward him and shoot him in the forehead and the chest.   Galloway then turned to Clifton, who had exited the car and was standing nearby, and told him he was out of bullets.   Galloway and Clifton then ran to their car, and the car left.   Neither reported the incident.

Additional evidence indicating that Clifton fled included Jenkins' testimony that about two weeks after the murder, Jenkins gave $500 to a Gangster Disciples board member named “Godfather” so Clifton “could leave town.”   Clifton was subsequently arrested at an apartment building in Fort Wayne, Indiana.

Other evidence showed that Clifton continued to associate with Galloway after the shootings.   Delilah Hunt, who was Holton's girlfriend at the time of the murder, testified that about four days after the shootings, she saw Galloway and Clifton sitting together in a car.   About three hours later, Galloway came to her house and asked her if Holton or Holton's son lived there.   A week or so later, Clifton came to Hunt's house and asked her if someone new had moved onto the block.   About three days after that, Galloway returned to Hunt's house and also asked if someone new had moved onto the block.

Additional evidence linking Clifton to the crime included Jenkins' testimony that about two days before the murder, Clifton told Jenkins that he “needed a couple of units,” meaning guns, and that Jenkins obtained a .380 automatic and a Tech 9 and gave them to Clifton.   Evidence presented at trial showed that bullets recovered from the victims as well as cartridge casings recovered from the scene had the same class characteristics as having been fired from a .380 automatic pistol.

All of this evidence taken cumulatively is more than enough to establish the accountability of Clifton for any of the acts attributable to Galloway.   There was also evidence suggesting that Clifton might have been guilty as a principal.   It was established at trial that on the night of the murder, Clifton was sitting in Brown's car in the rear seat behind the driver.   Dr. Thamrong Chira, a Cook County medical examiner, testified that, because the bullet that killed Holton entered at the back of his neck on the left side and traveled from left to right and from back to front, and because there was no evidence of close-range firing, it was more likely that the shooter was in the back seat behind the driver (Clifton's position) rather than on the passenger side.   However, even without this evidence, there is more than enough to support the State's theory of accountability as to Clifton.

Viewing that evidence in the light most favorable to the prosecution, we cannot say that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.   The verdict here was not so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to Clifton's guilt under an accountability theory.

[The preceding material is non-publishable under Supreme Court Rule 23.]

 Finally, while this issue was pending on appeal, the United States Supreme Court issued its decision in the case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   In a supplemental brief, Clifton ² contends that Apprendi renders section 5-8-4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(a)(West 1998)) unconstitutional because that section imposes consecutive sentences if, inter alia, the court makes a factual finding that severe bodily injury occurred during the commission of the crimes in question.   Clifton argues that pursuant to Apprendi such a factual determination must be made by a jury and not by the court.   Since he was sentenced to consecutive sentences pursuant to this provision, Clifton contends that his sentences must be changed to run concurrently.   Also in a supplemental brief, the State contends that Clifton has waived this issue on appeal and that Apprendi does not apply to the consecutive sentencing statute.

In an earlier opinion which we previously issued in this cause, we affirmed the conviction of both codefendants Clifton and Galloway, but reversed in part as to the sentences imposed.   See People v. Clifton, 321 Ill.App.3d 707, 255 Ill.Dec. 769, 750 N.E.2d 686 (2000);  (see also the supplemental opinion filed on April 24, 2001).   In that opinion, we reversed in part as to the sentencing issues, finding that the consecutive sentences imposed upon codefendants pursuant to section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 1998)) were rendered unconstitutional by our Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”   Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455;  see also Clifton, 321 Ill.App.3d at 727, 255 Ill.Dec. 769, 750 N.E.2d at 704.   We also found that this question challenged the trial court's statutory authority to impose a particular sentence, and therefore, the issue was not waived by defendants' failure to raise it in a timely postsentencing motion.   See Clifton, 321 Ill.App.3d at 724-25, 255 Ill.Dec. 769, 750 N.E.2d at 702-03.

After our earlier opinion was issued, codefendant Galloway filed a petition for rehearing urging this court to vacate his sentence on the basis that the extended prison terms for each of the individual offenses for which he was convicted, as well as the requirement that these sentences be served consecutively, were unconstitutional under Apprendi.   We agreed, and thus vacated his sentence on the grounds that it was improper under Apprendi as both an extended-term and consecutive sentence.   See Clifton, 321 Ill.App.3d at 732-33, 255 Ill.Dec. 769, 750 N.E.2d at 708-09.   The cause was thus remanded for resentencing.

Since our original decision in Clifton, our supreme court addressed the issue of whether section 5-8-4 of the Code, which provides for consecutive sentencing, is unconstitutional, and determined in both People v. Wagener, 196 Ill.2d 269, 286, 256 Ill.Dec. 550, 752 N.E.2d 430, 441-42 (2001), and People v. Carney, 196 Ill.2d 518, 527, 256 Ill.Dec. 895, 752 N.E.2d 1137, 1141 (2001), that consecutive sentencing does not offend the constitutional protections set forth in Apprendi.   In Wagener, the court articulated the basis of its decision by stating that “[i]t is a settled rule in this state that sentences which run consecutively to each other are not transmuted thereby into a single sentence.  [Citations.]  Because consecutive sentences remain discrete, a determination that sentences are to be served consecutively cannot run afoul of Apprendi, which only addresses sentences for individual crimes.   Accordingly, section 5-8-4(b) of the Code passes constitutional muster.”  Wagener, 196 Ill.2d at 286, 256 Ill.Dec. 550, 752 N.E.2d at 441-42.   Likewise, in Carney, the court stated that “[t]he fact-finding process implicated [in section 5-8-4(b) ] does not offend the constitutional protections identified in Apprendi because, in applying the factors, the judge may not impose a sentence that exceeds the prescribed statutory maximum for each offense.  [Citation.] Thus, the defendant is not subjected to additional punishment not contemplated by the substantive offense statute or the sentencing statute associated therewith.”  Carney, 196 Ill.2d at 527, 256 Ill.Dec. 895, 752 N.E.2d at 1142.

 After its decisions in Wagener and Carney, the Illinois Supreme Court, in the exercise of its supervisory authority, directed this court to vacate our previous judgment in Clifton and reconsider based on the aforementioned holdings.   Following that directive here, we now vacate our earlier judgment as entered in Clifton, 321 Ill.App.3d 707, 255 Ill.Dec. 769, 750 N.E.2d 686, and upon reconsideration, reinstate and incorporate herein by reference the opinion previously entered, except as it pertains to the application of Apprendi to the imposition of consecutive sentences in light of Wagener and Carney.   As to those issues, we modify our earlier opinion to conclude that the consecutive sentences originally imposed on codefendant Clifton were proper and thereby vacate our previous decision reversing and remanding the trial court's sentencing judgment.   In place of that, we herewith affirm the sentencing judgment as originally entered by the trial court.   With respect to codefendant Galloway, we adhere to our prior determination that the extended-term sentences he received for each of the individual offenses of first degree murder and attempted first degree murder be remanded for clarification as discussed therein (see Clifton, 321 Ill.App.3d at 732-33, 255 Ill.Dec. 769, 750 N.E.2d at 708-09 (“[s]ince it is not clear from the record what factors the trial judge used in finding that Galloway was eligible for an extended sentence, such a determination should be more appropriately made on remand.  [Citation.]  If the extended sentence was imposed based on Galloway's prior convictions, then it may stand, as the fact of prior convictions need not be found by a jury and proved beyond a reasonable doubt under Apprendi ”)).   But in either event, we withdraw and vacate our determination that the sentences imposed upon him could not be served consecutively.   Accordingly, based upon these modifications, we vacate our earlier judgment in which the judgment of the trial court was affirmed in part, reversed in part and remanded, and substitute in its place our judgment affirming the convictions and sentences as to codefendant Clifton, and affirming in part and remanding in part as to codefendant Galloway.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court is affirmed in part and remanded in part.

Affirmed and remanded.

FOOTNOTES

1.   Due to the page limitations imposed under revised Supreme Court Rule 23 (166 Ill.2d R. 23), we are compelled to delete from the published portion of this opinion our findings that the trial court did not abuse its discretion when it held that there was no discovery violation and our finding that the failure of Clifton's counsel to move for dismissal for lack of a speedy trial did not deny him effective assistance of counsel.   We must also delete from our discussion our rejection of Clifton's argument that the evidence was insufficient to establish Clifton's guilt either as a principal or on an accountability theory.   Our discussion of these issues is included in the full, unabridged text of this opinion which is on file with the clerk of this court under docket nos. 1-98-2126, 1-98-2384 (consolidated).

2.   From this point forward, all arguments presented are those of Clifton and not Galloway.

3.   Defendants question the precise date on which ASA Sexton first spoke to Philander Jenkins.   They note that the record includes two copies of the State's answer to discovery dated February 5, 1998, and that one of them contains handwritten additions that include Jenkins' name as a possible witness.   According to defendants, that suggests the State knew Jenkins might be used as a witness as early as February 5. The State responds that just prior to jury selection on February 19, 1998, it tendered to the court the names of the witnesses it intended to call at trial, and that Jenkins' name was written in at that time.   Since Jenkins' name, as well as that of fingerprint examiner Theatrice Patterson, clearly was added to the February 5 answer to discovery (possibly at a later date), we find the State's explanation plausible.   Any purported discrepancy, particularly considering that the additional witness names were handwritten, does not rise to the level of a discovery violation.

4.   Those documents were subsequently placed under seal.

2.   Defendant Galloway did not participate in the supplemental appeal.

Presiding Justice GORDON delivered the opinion of the court: