¶1specially concurring:
¶2I completely agree with the majority’s analysis in this case, except for its holding regarding the admission of gang evidence. Our supreme court has recently addressed this issue, once again recognizing that “street gangs are regarded with considerable disfavor by other segments of our society.” People v. Strain, 194 Ill. 2d 467, 477, 742 N.E.2d 315, 320 (2000). Moreover, the court has acknowledged that “particularly in metropolitan areas, there may be strong prejudice against street gangs.” Strain, 194 Ill. 2d at 477, 742 N.E.2d at 320.
¶3Evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial value. People v. Gonzalez, 142 Ill. 2d 481, 487, 568 N.E.2d 864, 866 (1991). In this case, the majority finds the evidence of gang membership was relevant to the issue of a common scheme of conducting an armed robbery. However, whether the robbers were accountable for the actions of the others was never in dispute. Rather, the theory of defense was that defendant was not present and did not in fact commit the crime.
¶4The majority also finds the gang evidence was relevant because the crime was committed at the “behest” of Nose. First, defendant’s state of mind and motivation in the armed robbery was never an issue for the jury to decide. Second, I believe the majority has overstated the record. There was no evidence that gang hierarchy or discipline motivated defendant to join Nose when he said, “We got to hit a lick.” Unlike other cases allowing gang evidence, there was no evidence of gang warfare or gang retaliation (Strain, 194 Ill. 2d at 479, 742 N.E.2d at 322), no invasion of rival gang territory (People v. Colon, 162 Ill. 2d 23, 30, 642 N.E.2d 118, 121 (1994)), no gang signs flashed or gang slogans shouted (People v. Jones, 259 Ill. App. 3d 905, 911, 632 N.E.2d 293, 297 (1994)), and no evidence victims were chosen because they were rival gang members (People v. Ellis, 315 Ill. App. 3d 1108, 1120, 735 N.E.2d 736, 746 (2000)).
¶5I believe the questionable probative value of defendant’s gang membership, and especially his gang nickname, “Big Murder,” was substantially outweighed by its obvious strong prejudicial value. While I would find the trial court erred, I would also hold such error was harmless in light of the overwhelming evidence against defendant. People v. Parker, 311 Ill. App. 3d 80, 92, 724 N.E.2d 203, 212 (1999). I write specially to make clear gang evidence should not be admitted in every case where defendants act in concert.