Appeal from the Circuit Court of Cook County. No. 08 CR 03180 CARLOS LOPEZ, Honorable Judge Presiding.
The opinion of the court was delivered by: Justice Hyman
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Sterba and Pierce concurred in the judgment and opinion.
¶ 1 A jury convicted the defendant, Carlos Lopez, of murder after finding that he and several co-defendants beat to death a factory employee in the parking lot where the victim worked. The trial court sentenced Lopez to 22 years in prison. Lopez contends several errors at trial are grounds for reversing his conviction, including the admission of evidence about an attack on a man by some of Lopez's co-defendants in the same parking lot about three weeks earlier. For the following reasons, we reverse Lopez's conviction and remand for a new trial.
¶ 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 co-defendants 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, who was 15 years old at the time of his arrest, was tried separately from his co-defendants. 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' co-workers, 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' 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' head and then Lopez dropped the rock on him a second time. Ortiz also testified that a rock was dropped on Reyes' 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 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 co-defendants 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 ...