People v. Lopez

2014 IL App (1st) 102938-B
No. 1-10-2938
Opinion filed June 30, 2014
Third Division
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 08 CR 03180
)
CARLOS LOPEZ, )
) The Honorable
Defendant-Appellant. ) James B. Linn,
) Judge, presiding.

______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pierce and Mason concurred in the judgment and opinion.

OPINION

¶1 Fifteen years old at the time of his arrest, defendant Carlos Lopez was convicted by a jury

of murder for his participation, along with several codefendants, in the beating death of a factory

employee in the parking lot where the victim worked. The trial court sentenced Lopez to 22

years in prison. Lopez appealed, raising several errors at trial as grounds for reversing his

conviction, including the admission of evidence about an attack on a man by some of Lopez's
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codefendants in the same parking lot about three weeks earlier. Lopez argued that because he

did not participate in the earlier crime, the State failed to meet the threshold requirement for

admissibility under traditional "other crimes" analysis. We agreed, reversed Lopez's conviction,

and remanded for a new trial. People v. Lopez, 2013 IL App (1st) 102938. Our supreme court

then entered a supervisory order directing this court to vacate our judgment and reconsider our

opinion in light of People v. Pikes, 2013 IL 115171. People v. Lopez, No. 116212 (March 10,

2014) (supervisory order). As directed, we have reconsidered the case after carefully reviewing

the Pikes opinion and supplemental briefs from the parties. We continue to hold that the trial

court erred in allowing the evidence of the earlier, unrelated attack, and reverse and remand for a

new trial.

¶2 BACKGROUND

¶3 In the early hours of December 24, 2007, Francisco Reyes was beaten and killed by a

group of men in the parking lot of a tortilla factory in Chicago. Carlos Lopez and five other

men, Daniel Roman, Martin Roman, Ismael Morales, Omar Morales, and Adolfo Zuniga, who

lived in the neighborhood, were later arrested and charged with three counts of murder and one

count of robbery. The State later dropped the robbery charge against Lopez. Before trial,

defense counsel filed a motion in limine, to exclude evidence regarding an incident on December

4, 2007, when three of Lopez's codefendants beat a man in the factory parking lot and smashed

car windows. The defense also sought to exclude evidence of Lopez's gang membership. The

trial court denied both requests, finding the evidence more probative than prejudicial.

¶4 Lopez, only 15 years old at the time of his arrest, was tried separately from his

codefendants. The State's evidence at trial consisted primarily of the testimony of two

eyewitnesses, Sylvia Ortiz and Fernando Garcia, who saw the murder occur. Ortiz and Garcia

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lived with their son in the second floor of an apartment building across the street from the tortilla

factory. They said they watched the crime from separate windows of their apartment, which

faced the parking lot.

¶5 Under the State's theory of the case, events leading up to the murder began in the early

morning hours of December 4, 2007. Sylvia Ortiz testified that after arriving home from work

around 1 a.m., she heard a banging noise outside. She looked out her window and saw three men

hitting the factory door with baseball bats. Ortiz recognized all three men, Daniel Roman,

Martin Roman, and Ismael Morales, because she frequently observed them hanging around the

neighborhood. When no one opened the factory door, she saw the men break car windows in the

parking lot. Ortiz called the police, who arrived about 15 minutes later.

¶6 One of the factory employees, Pedro Martinez, testified he arrived at work on the evening

of December 3 and saw a group of young men, including Lopez, hanging out on the corner near

the factory. Later that evening, a man whom Martinez had not seen before, came to the factory

to sell a car jack. The man said a friend was waiting outside. A few minutes later, the friend

came into the factory. He had been beaten up and his face was bleeding. Loud banging on the

factory door could be heard, and the two men stayed in the factory until the banging stopped.

Martinez went outside and saw that his car windows were broken and another car was damaged.

Martinez saw the same crowd of five or six young men, including Lopez, standing on the corner.

He testified that he frequently saw these men near the factory when he arrived at and left work.

¶7 About three weeks later, on December 24, Ortiz and Garcia were home around midnight

when they heard a voice outside. They both recognized the person speaking as Daniel Roman,

who was talking on a cell phone. Ortiz said that Daniel told the person on the phone to come

over and made a waving motion with his hand. Garcia heard Daniel say "come help me, I need

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to fuck him up, come help me, from the factory, let's fuck him up." Soon after, Lopez, Ismael

Morales, Omar Morales, and Martin Roman arrived. After the men gathered, Garcia heard

someone say “Let’s get him; let's fuck him up.” The group walked to the factory parking lot

where Francisco Reyes was driving a forklift. Juan Ramirez, one of Reyes's coworkers, testified

that a supervisor had sent Reyes out to the parking lot shortly before the murder to unload a

shipment of corn. The group grabbed Reyes off the seat of the forklift, forced him to the ground,

and began hitting and kicking him. At some point, Adolfo Zuniga arrived in a car and joined the

others in beating Reyes. As Reyes lay on the ground, one of the men removed Reyes's wallet

from his pocket. Then one of the perpetrators went across the street and picked up a concrete

rock. Garcia testified Ismael Morales dropped the rock on Reyes's head and then Lopez dropped

the rock on him a second time. Ortiz also testified that a rock was dropped on Reyes's head, but

did not identify who dropped it. After striking Reyes with the rock, the men scattered.

¶8 Inside the factory, a supervisor asked Juan Ramirez to check on Reyes because he had not

returned from unloading the corn. Ramirez found Reyes lying on his back in the parking lot and

ran back into the factory to call 911. Reyes was taken to a hospital. He died the next day. The

medical examiner testified that Reyes died of multiple cranial injuries caused by blunt force

trauma.

¶9 Detectives Roberto Garcia and Peter Maderer investigated the murder. On December 27,

Fernando Garcia went to the police station and told Detective Garcia what he saw the night of

the murder. He testified he did not come forward earlier because he feared retribution,

particularly because the uncle of some of the perpetrators lived in the apartment below his.

Garcia identified photos of Lopez, Omar Morales, Ismael Morales, Daniel Roman, Martin

Roman, and Adolfo Zuniga as the perpetrators. Initially, Garcia identified Carlos Lopez's

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brother as being Carlos, but later identified Carlos as one of the perpetrators. Garcia also viewed

three in-person lineups. At the first, he identified Ismael Morales, Daniel Roman, Martin

Roman, and Adolfo Zuniga as the perpetrators. At the second, he identified Omar Morales. At

the third, he identified Lopez. At trial, Garcia made an in-court identification of Lopez as one of

the men who beat Reyes.

¶ 10 On January 1, 2008, Sylvia Ortiz spoke to Detective Garcia at the police station about the

December 24 murder. She too testified she did not come forward sooner because she was afraid.

The police showed Ortiz photos. She identified Ismael Morales, Daniel Roman, and Martin

Roman as three of the perpetrators. Ortiz later viewed three in-person lineups. At the first, she

identified Ismael Morales, Daniel Roman, and Martin Roman. At the second lineup, she

identified Omar Morales. At the third lineup, she identified Lopez. She also identified him in

court.

¶ 11 During the trial, Fernando Garcia testified he believed Lopez and his codefendants were

members of a street gang, the Latin Kings, because he frequently saw them making gang signs

and throwing rocks at the cars of rival gang members. During Garcia's testimony, the trial court

instructed the jury as follows:

"This evidence is not to be considered by you–he is not accused of being in a

gang. That's not what he's on trial for, but this evidence is given as it may indicate

the witness's basis of his identification. This is how he claims to know who the

people are that he is suggesting are involved in this matter. It is for the basis of

identification and possible motive."

¶ 12 Lopez did not testify or present any witnesses during the trial. Following closing, the

jury deliberated and found Lopez guilty of first degree murder. In his motion for a new trial,

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Lopez argued, in part, that the State made prejudicial, inflammatory, and erroneous statements in

its closing argument and the trial court erred by admitting evidence about the December 4

incident and Lopez's gang membership. The trial court denied the motion and sentenced Lopez

to 22 years in prison.

¶ 13 Lopez raised four issues on appeal, two involving errors by the trial court, two involving

errors by defense counsel and the prosecutor. The first error dealt with the trial court's admission

of other-crimes evidence against Lopez, namely the attack in the tortilla factory parking lot on

December 4, about three weeks before Reyes' murder. The other errors involved the State's

introduction of evidence of gang membership; the effectiveness of defense counsel in presenting

a theory in opening statements that she did not support with evidence at trial; and the State's

remarks during closing argument about Lopez, the victim, and the State's witnesses. Because we

agreed with Lopez's first contention, that the trial court erred in admitting other-crimes evidence

against him during trial required reversal and remand, we addressed the first issue only and did

not address the remaining three issues.

¶ 14 In our opinion, we found that because the State presented no evidence Lopez was

involved in the December 4 parking lot incident, the evidence was inadmissible under traditional

other-crimes analysis. Lopez, 2013 IL App (1st) 102938, ¶ 19. We also rejected the State's

contention the evidence was admissible even if Lopez was not involved in the prior crime

because it was relevant to establish the motive for the subsequent murder. For support, the State

cited People v. Morales, 2012 IL App (1st) 101911, which involved one of Lopez's codefendants

and held that even if Morales was not present, evidence about the December 4 incident was

admissible if relevant to show a motive for the later Reyes murder. Morales, 2012 IL App (1st)

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101911, ¶ 32. Noting an apparent split of opinion in the appellate court, we found People v.

Pikes, 2012 IL App (1st) 102274, to be the better-reasoned approach.

¶ 15 In Pikes, the defendant was charged with first degree murder for a drive-by shooting at a

group of rival gang members that killed one man. Before trial, the State made a motion to

introduce evidence against both Pikes and his codefendant of an earlier shooting committed by

the codefendant. Pikes, 2012 IL App (1st) 102274, ¶ 4. As described in that motion, in the days

before the drive-by shooting, a member of the Gangster Disciples street gang was riding a motor

scooter when codefendant, a member of the Four Corner Hustlers street gang, shot at him. Id.

Immediately afterward, a car driving behind the scooter struck the codefendant. Pikes argued

that codefendant's shooting at the scooter should not be admitted as to him, because he was not

present when it occurred. Id. While acknowledging that it was “ 'unaware of any evidence that

[defendant] was present at the time of the shooting,' " the State argued that this incident was

relevant and admissible against both defendant and codefendant to show motive for the murder.

Id. The trial court agreed with the State and admitted the evidence, finding that it was

“extremely relevant[,] by far more probative than prejudicial” and “[w]ill help the jury

understand the context” of the instant cause. (Internal quotation marks omitted.) Id. At trial, the

State presented the statement of a witness who said he talked to Pikes and his codefendant just

before the drive-by shooting and heard the codefendant say they were going to kill a Gangster

Disciple in retaliation for the scooter incident. A jury convicted Pikes of first degree murder. Id.

¶ 17.

¶ 16 In appealing his conviction, Pikes argued, in part, that the trial court erred in admitting

evidence of the scooter shooting against him because he was neither present nor involved in that

other crime and that because the evidence was highly prejudicial, reversal was required. Pikes,

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2012 IL App (1st) 102274, ¶ 23. The Pikes court held that because the State admitted it had no

evidence Pikes was even present at the scooter shooting, let alone a participant, it failed to meet

the threshold requirement for admission of other-crimes evidence, defendant's involvement

beyond a mere suspicion. Pikes, 2012 IL App (1st) 102274, ¶ 27.

¶ 17 The court also rejected the State's argument that Morales supported a finding that the

evidence of the scooter shooting was admissible because it was relevant evidence of defendant's

motivation in the victim's murder. Pikes, 2012 IL App (1st) 102274, ¶ 29. The court found

Morales was factually distinguishable and carved out a "tenuous" exception to the rule regarding

other-crimes evidence. Id. ¶ 36. While the court acknowledged that under People v. Manuel,

294 Ill. App. 3d 113 (1997) and People v. Rutledge, 409 Ill. App. 3d 22 (2011), prior intrinsic

incidents could be admitted under simple relevancy principles rather than requiring the higher

threshold of proof for other-crimes evidence, the court asserted, "what is dangerous about

Morales is that it attempts to expand these holdings to cases where it is unclear whether the

defendant participated in the prior acts." Id. ¶ 41-42. Where "there was no question that the

defendants committed the prior acts sought to be introduced," the court said, "[w]e have no

problem *** with the lower relevancy threshold." Id. ¶ 41. But the court found it could not

follow Morales to find other-crimes evidence admissible where the State failed to show beyond a

mere suspicion that defendant was involved or participated in that crime. Id. ¶ 42. The Pikes

court noted that although the Morales court seemed to think such a distinction was irrelevant, "it

still went out of its way several times to highlight the eyewitness testimony regarding the

defendant's presence at the prior attack." Id. The court found that where the State conceded the

defendant had not participated or been involved in the previous shooting incident, the evidence

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was inadmissible and a basis for reversing the defendant's conviction and remanding for a new

trial. Id. ¶ 45.

¶ 18 In agreeing with the approach in Pikes, we found "that absent a showing, beyond a mere

suspicion, that a defendant was a participant in a previous crime or bad act, evidence about that

crime is inadmissible." Lopez, 2013 IL App (1st) 102938, ¶ 31. We also disagreed with the

State's assertion during oral arguments that Lopez's presence near the factory before and after the

December 4 incident permitted the trial court to draw the inference he was involved in that

crime. "Mere suspicion may result in a defendant being subjected to peril for something that he

had nothing to do with or knew anything about." Id.

¶ 19 After we issued our opinion, the Illinois Supreme Court reversed the appellate court's

decision in Pikes. People v. Pikes, 2013 IL 115171. The court held the admissibility of evidence

regarding a collateral crime a defendant was not involved in should be judged under ordinary

relevancy principles rather than traditional other-crimes analysis. Id. ¶ 20. The court found that

because the evidence at trial, including the testimony of several witnesses, amply demonstrated

Pikes was "motivated to assist [codefendant] in retaliating against the Gangster Disciples for the

injury caused to [codefendant] during the scooter shooting incident" it was relevant to show the

motive for the drive-by shooting. Id. ¶ 22.

¶ 20 While Pikes was pending, the State filed a petition for leave to appeal to the Illinois

Supreme Court in this case. The supreme court denied the petition but entered a supervisory

order directing this court to vacate its decision and reconsider in light of Pikes "to determine if a

another outcome is warranted." People v. Lopez, No. 116212 (March 10, 2014) (supervisory

order).

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¶ 21 ANALYSIS

¶ 22 As noted, Pikes provides that in cases such as this one, where the State seeks to introduce

evidence of a prior crime in which the defendant was not a participant, admissibility should be

judged under ordinary principles of relevance. Pikes, 2013 IL 115171, ¶ 20. " 'Relevant

evidence' is defined as evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011)." Id. ¶ 21. Even relevant evidence,

however, may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011). The admissibility of evidence rests within

the discretion of the trial court, and its decision will not be disturbed absent an abuse of that

discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010).

¶ 23 In Pikes, the court found the prior scooter incident was relevant because witnesses

testified they heard Pikes and his codefendant say they were going to kill a Gangster Disciple in

retaliation for the earlier incident. Pikes, 2013 IL 115171, ¶ 22. Thus, the evidence of the prior

crime, even though Pikes was not present when it occurred, was relevant to establish the motive

of the later drive-by shooting. Id. ¶ 26

¶ 24 Here, a completely different situation is presented. The State presented no evidence at

trial showing the Reyes murder was tied to the prior incident outside the factory. In its

supplemental brief, the State contends evidence showing that Lopez's codefendants beat up a

man outside the factory on December 4, banged on the factory doors, and smashed car windows

showed their animosity toward the people in the factory and was relevant to show the motive for

the otherwise inexplicable attack on Francisco Reyes three weeks later. While it is possible that

revenge was a motive, absent any evidence, the State's assertion rests on pure conjecture. In

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Pikes, witnesses testified that Pikes and his codefendant were heard stating they wanted to kill a

Gangster Disciple as revenge for the scooter shooting incident, in which Pikes's codefendant was

hit by a car. Here, there was no evidence showing a connection between to the two incidents.

Although some of Lopez's codefendants were involved in both crimes, the State did not present

testimony or evidence showing the second crime was in retaliation for the first or that they were

otherwise related. Furthermore, there was no evidence offered even showing Lopez knew about

the earlier incident.

¶ 25 The key issue for the jury’s determination was whether the evidence presented by the

State, including the testimony of two eyewitnesses to the incident, proved beyond a reasonable

doubt that Lopez was one of the perpetrators in the beating death of Reyes. Evidence about an

unrelated incident that occurred nearly a month earlier offered no probative value for the jury in

making that decision. Motive, although not a necessary element to the crime, is relevant. For

instance, the State presented testimony that Reyes's wallet was taken by the perpetrators, which

is evidence that robbery may have been a motive. And in Pikes, the earlier scooter incident

could be presented as evidence of a motive where Pikes and his codefendant were heard saying

they were going to kill a member of the rival gang as retribution. But here, the State did not

argue or present evidence other than the earlier incident to establish revenge as a motive.

¶ 26 The State contends the holding in Morales, 2012 IL App (1st) 101911, supports a finding

that evidence about the December 4 incident was relevant circumstantial evidence showing

motive and intent. As noted, Morales was an appeal by one of Lopez's codefendants following

his conviction for the murder and robbery of Reyes. Like Lopez, Morales argued the December

4 attack should not be admitted into evidence because there was insufficient proof he was

involved in that incident. In Morales, unlike here, one witness, Fernando Garcia, testified

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Morales was present in the factory parking during the December 4 incident. Morales, 2012 IL

App (1st) 101911, ¶ 4. Garcia wavered on cross-examination, however, stating he was not

certain Morales was present that night. Id. The appellate court found "Garcia's testimony was

sufficient to put the defendant's participation in the December 4 incident before the jury." Id. ¶

32. Therefore, the threshold requirement for other-crimes evidence, defendant's participation in

the prior crime, was established. Relying on Manuel and Rutledge, the Morales court then

reasoned that if the evidence sought to be admitted could be considered "part of the 'course of

conduct' leading up to the crime charged, then it constitutes intrinsic evidence of the charged

offense and its admissibility is not analyzed as 'other crimes' evidence, requiring proof that the

defendant committed or participated in the uncharged offense." Id. ¶ 25 (citing Manuel, 294 Ill.

App. 3d at 124). Instead, the evidence is admissible under the more general, and lower

threshold, principles of ordinary relevance. Morales, 2012 IL App (1st) 101911, ¶ 24. Based on

this reasoning, the Morales court found the evidence of the earlier factory attack properly

admitted against the defendant as intrinsic to the subsequent murder by providing a context for

that crime. See id. ¶¶ 30-32.

¶ 27 The Morales court, however, went further and held the evidence would have been

admissible whether or not defendant was present or participated in the previous incident.

Morales, 2012 IL App (1st) 101911, ¶ 32. The court stated "[n]o such showing was required

because the contested evidence was not 'extrinsic' to the murder and robbery charges against the

defendant." Id. The showing that some of the same individuals were involved in the December

4 and the December 24 incidents was sufficient for admission of the contested evidence.

"Relevancy was key and that was shown by the involvement of some of the same individuals on

December 4 that participated in the murder; that showing was sufficient for the admission of the

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contested evidence. In other words, even if the evidence of the December 4 incident established

that the defendant was not present, the jury was free to infer, based on the evidence before it, that

the defendant took part in the murder and robbery to help his friends avenge their vendetta

against the employees of the tortilla factory." Id.

¶ 28 Morales is distinguishable in that evidence was presented showing the defendant may

have participated in the earlier crime. Although Garcia's testimony identifying Morales as

present on the date of the December 4 incident may have been undermined on cross-examination

(a proposition the appellate court found was unsupported by the evidence), it presented a

question of fact for the jury. Morales's possible participation in the December 4 incident made

evidence of that incident relevant to showing motive.

¶ 29 But how could Lopez be motivated to act by the December 4 incident without a whit of

evidence establishing he participated in or even had any knowledge of it? Whether his co-

defendants may have been motivated by the December 4 incident does not permit an inference as

to Lopez’s motivation when the testimony regarding the incident has no connection to Lopez

and, thus, does not have a tendency to make his participation in the December 24 murder more or

less probable than it would be without the evidence.

¶ 30 The problem with admitting evidence about other crimes or bad acts is that it may

overpersuade the jury that a defendant is a bad person who deserves punishment. That

possibility is particularly strong here because the testimony regarding the December 4 incident,

along with the State's introduction of testimony regarding Lopez's membership in a gang could

have persuaded the jury that Lopez was a bad person who should be punished. The trial court

erred in permitting the State to present the evidence where the State failed to show the relevance

of the December 4 incident to the crime Lopez was accused of. As such, the evidence did not

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make his involvement in the murder more or less likely. Therefore, we reverse Lopez's

conviction and remand for a new trial.

¶ 31 CONCLUSION

¶ 32 For the reasons set forth above, we reverse Lopez's conviction and remand his cause for a

new trial, as provided in this decision.

¶ 33 Reversed and remanded.

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