Illinois Official Reports
Appellate Court
People v. Lopez, 2014 IL App (1st) 102938-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CARLOS LOPEZ, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-10-2938
Filed June 30, 2014
Held In response to a supervisory order of the Illinois Supreme Court
(Note: This syllabus directing the appellate court to reconsider its earlier decision reversing
constitutes no part of the defendant’s conviction for a murder involving several codefendants in
opinion of the court but light of the supreme court’s decision in Pikes, holding that the
has been prepared by the admission of evidence regarding a collateral crime defendant was not
Reporter of Decisions involved in should be judged under ordinary relevancy principles,
for the convenience of rather than a traditional other-crimes analysis, the appellate court
the reader.) upheld its earlier decision reversing defendant’s murder conviction
and remanding the case for a new trial on the ground the trial court
erred in admitting evidence of an attack by some of the codefendants,
but not defendant, three weeks prior to the attack that defendant took
part in with the other codefendants that resulted in the victim’s death,
since there was no evidence defendant was present at the first attack or
even knew of it, or that the fatal attack was in retaliation for or related
to it in any way.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-03180; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Emily S. Wood, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the
People.
Panel 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 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 (Jan. 29, 2014) (supervisory order). As directed, we vacate our prior
opinion and have reconsidered the case after carefully reviewing Pikes 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.
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¶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
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 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.
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¶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
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,
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’s 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
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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) 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, 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.” Pikes, 2012 IL App (1st)
102274, ¶ 42. Where “there was no question that the defendants committed the prior acts
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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 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 (Jan. 29, 2014) (supervisory
order).
¶ 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
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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 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 Morales was present in the factory parking lot 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
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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 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
codefendants 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 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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