Appeal from the Circuit Court of Cook County. No. 08 CR 3180 The Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices Lampkin and Palmer concurred in the judgment and opinion.
¶ 1 A jury convicted the defendant of murder and robbery after he and several co-defendants beat to death a factory employee in the parking lot where the victim worked. During voir dire, the trial judge dismissed a prospective juror that expressed a bias against gangs, but told her that he might send her to the Daley Center for a civil trial that would last a month. At trial, the circuit court overruled the defendant's objection regarding evidence of an attack by some of the defendants that took place in the same parking lot approximately three weeks prior to the murder. The court also admitted evidence over the defendant's objection that he and the other assailants were members of a street gang, which the jury was instructed to consider for purposes of identification. We hold the circuit court did not abuse its discretion in either of its evidentiary rulings. We also hold that the trial court's comments to the self-admitted, biased prospective juror that she might have to serve on a month-long civil trial did not give rise to plain error. We affirm.
¶ 3 The evidence adduced at trial proved the defendant and four others murdered the victim, Francisco Reyes, in the parking lot of a tortilla factory in Chicago on December 23, 2007. Along with the defendant, Carlos Lopez, Daniel Roman, Martin Roman, and Adolfo Zuniga were indicted for the murder. Two eyewitnesses saw the crime occur, Fernando Garcia and Sylvia Ortiz. Each lived in a building across the street from the tortilla factory and witnessed the crime from the window in their respective apartments, which faced the parking lot. Both witnesses testified they knew the defendant from their neighborhood and had seen him periodically over a period of four to five years. According to Garcia and Ortiz, the defendant's uncle also lived in their building.
¶ 4 According to the prosecution's theory, the events leading up to the murder began on December 4, 2007. Sometime around 2 a.m., Garcia heard a commotion outside. He looked out his window and saw two or three individuals that he could not recognize selling something in the parking lot of the tortilla factory. As he continued to watch, several men attacked the individuals in the parking lot. Factory workers testified that one individual ran into the tortilla factory seeking refuge from the attack. The man was covered in blood. After the factory workers allowed the victim to enter the factory, the factory doors were secured. One of the factory workers testified that he heard pounding on the factory door. Meanwhile, Garcia continued to watch as the group of men smashed the windows of a car in the lot with rocks and stomp on its roof. On direct examination, Garcia testified that the defendant was part of this group, along with the defendant's cousins, Daniel and Martin Roman, and Carlos Lopez . On cross-examination, Garcia admitted he "could not be sure" that the defendant was there that night. Ortiz also saw the attack by the group of men and the damage they caused to the car from her apartment window. She gave a similar account of the incident, but testified she only recognized Daniel and Martin Roman as part of that group. Ortiz testified that she heard Martin shouting at someone in the factory to come out.
¶ 5 Approximately three weeks later, on the night of the murder, Ortiz and Garcia were both at home in their respective apartments when they heard a voice outside around midnight. They each recognized the person speaking as Daniel Roman; he was talking on a cell phone. Ortiz could not hear what Daniel was saying, but Garcia heard him ask for help in beating up someone. Soon after, the defendant, his brother, Omar Morales (a juvenile), Martin Roman, and Carlos Lopez arrived and approached Daniel. Garcia testified that he recognized all of them from the neighborhood. Ortiz testified that all of the men were familiar to her because they grew up in the same neighborhood. Garcia stated that he frequently saw them near his home flashing gang signs and yelling at passing cars. Garcia believed the defendant and Daniel Roman were members of a street gang.
¶ 6 After the men gathered, Garcia heard someone say "Let's go beat him up" several times. The group walked to the tortilla factory parking lot where the victim was driving a forklift. His supervisor at the factory testified that he had sent the victim out to the parking lot shortly before the murder to unload a shipment of corn. The group grabbed the driver off the seat of the forklift and began hitting and kicking him and soon forced him to the ground. At some point, Adolfo Zuniga arrived in a car and joined the others in beating the victim. As the victim lay on the ground, one of the men removed the victim's wallet from his pocket. Ortiz heard someone comment about how little money the victim had.
¶ 7 After the wallet was taken, one of the men picked up a concrete rock from across the street. He then dropped the rock directly on the victim's head. Another one of the attackers dropped the rock on the victim's head a second time. Garcia testified that Martin Roman dropped the rock on the victim the first time; Garcia could not tell who dropped the rock the second time. Ortiz did not know who dropped the rock on the victim either time. After striking the victim with the rock the second time, the men scattered.
¶ 8 Inside the factory, the supervisor asked Juan Ramirez, a co-worker, to check on the forklift driver when he failed to return from unloading the corn. Ramirez found the victim lying on his back on the pavement of the parking lot. He ran back inside the factory to call 911. The victim died of multiple cranial injuries caused by blunt force trauma.
¶ 9 Detectives Roberto Garcia and Peter Maderer investigated the murder. Four days after the murder, on December 27, eyewitness Fernando Garcia approached Detective Garcia and told him what he saw the night of the murder. He testified that he did not come forward right away because he feared retribution, particularly because the defendant's uncle lived in his building. Garcia identified photos of the defendant, Omar Morales, Carlos Lopez, Daniel Roman, Martin Roman, and Adolfo Zuniga as the perpetrators. Garcia also viewed two in-person lineups. At the first, he identified Omar. At the second, he identified the defendant, Daniel, Martin, Lopez, and Zuniga.
¶ 10 Ortiz spoke to Detective Garcia at the police station on January 1, 2008. Like Garcia, she testified that she did not come forward right away because she was afraid. From photos, she identified the defendant, Daniel, and Martin. She later viewed three in-person lineups. At the first, she identified Omar. At the second, she identified the defendant, Daniel, and Martin. At the third lineup, Ortiz identified Lopez.
¶ 11 The defendant and the other perpetrators, except for juvenile Omar, were indicted and charged with three counts of murder and one count of robbery. Omar Morales was charged in juvenile court. The defendant was tried separately. At the beginning of voir dire, the court informed the prospective jurors that the trial could involve gang evidence and asked whether anyone in the venire had a problem hearing such a case. Three jurors raised their hands; the following exchange took place.
"THE COURT: Who is the woman that says she's prejudice? Get the name of this person here that says she's prejudice and can't give a fair trial before she even hears the evidence. What's your name?
THE DEPUTY SHERIFF: Pamela Russell, Judge.
THE COURT: Pamela Russell says she's prejudice[d]. And there is the gentleman next to her also says he's prejudice[d].
I mean, we're talking about before you even hear the evidence yet and you don't even know how this may come up, what context, if any.
THE DEPUTY SHERIFF: Minna Pirogovsky and Edwin Rivera.
THE COURT: Okay. I may have to send you down to the Daley Center to listen to a medical malpractice case. It may take a month.
What's the problem about there, sheriff?
THE DEPUTY SHERIFF: It's not regarding her inability to be fair. It's regarding a personal matter.
THE COURT: Just have a seat. I'll talk to you about that. Don't worry about it."
¶ 12 Later, the court questioned Pamela Russell directly:
"THE COURT: You raised your hand earlier. You're telling me that before you even hear any evidence that you got your mind made up about something about this case. Is ...