Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County, No. 08 CR 03180, Honorable James B. Linn, Judge Presiding.
Justices Pucinski and Mason concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE
¶1 Determining whether the State is introducing evidence of gang membership for a relevant and permissible purpose or for an illegitimate and highly prejudicial effect can present the trial judge with a difficult task. At issue, of course, is the fundamental right to a fair trial.
¶2 The admission of gang-related evidence is at the core of this appeal, in which a jury convicted the defendant, Martin Roman, of murder. He and several codefendants had beaten to death a factory employee in the parking lot where the victim worked. The trial court sentenced Roman to 32 years in prison. Roman contends several errors by the trial court are grounds for reversing his conviction, including the admission of testimony and photographic evidence that Roman was a member of a street gang.
¶3 Although we consider the crime and the defendant's conduct to be reprehensible, the admission of gang-affiliation as to Roman was of no probative value. The State contends it "was introduced for the limited purpose of showing the circumstances surrounding defendant's identification, " but the record reveals that the gang evidence had nothing to do with witness identification of Roman Martin, or with any other issue. Accordingly, his conviction must be reversed and the case remanded for a new trial.
¶5 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. Martin Roman and five other men, Daniel Roman, Carlos Lopez, Ismael Morales, Omar Morales, and Adolfo Zuniga, who lived in the neighborhood, were later arrested and charged with first degree murder and robbery. (All references to "Roman" refer to Martin Roman; Daniel Roman will be identified with his first and last names.) Roman and Zuniga were tried together after their codefendants had been tried and convicted. Before trial, defendants' attorneys sought to bar the State from presenting evidence regarding an incident on December 4, 2007, when three men beat a man in the factory parking lot and smashed car windows. The trial court denied the request finding the evidence more probative than prejudicial because it supported the State's theory of a motive for the murder. The defense also asked the court to preclude the State from presenting gang-related evidence at trial. Specifically, defense counsel sought to prevent the State from using photographs of defendants' gang tattoos, arguing they were prejudicial and served no purpose other than to inflame the jury. The trial court denied that motion on the grounds that the photographs supported the State's theory that the offense was gang-related and corroborated the witnesses' identifications of the perpetrators. The trial court also refused defense counsel's request that the State remove or cover a "Gang Unit" sticker from the cart they used in the courtroom, despite the State's offer to do so. The judge stated the sticker "never mattered to a jury before" and expressed concern that the prosecution might lose the cart without it.
¶6 The State's evidence at trial consisted primarily of the testimony of three eyewitnesses, Sylvia Ortiz, Fernando Garcia, and Juliana Flores, who all saw the murder occur. Ortiz and Garcia lived with their son on the second floor of an apartment building across the street from the tortilla factory. They said they watched the crime from separate windows facing the parking lot. Flores was with her boyfriend, who lived downstairs from Ortiz and Garcia. She too watched the beating from an apartment window.
¶7 Ortiz testified that on December 4, 2007, a few weeks before the murder, she heard a banging noise outside at about 1 a.m. She looked out her window and saw three men hitting the factory door with baseball bats. Ortiz recognized all three men, Martin Roman, Daniel Roman, and Ismael Morales, because she frequently saw them hanging around the neighborhood. When no one opened the factory door, Ortiz saw the men break car windows in the parking lot. Ortiz called the police, who arrived about 15 minutes later.
¶8 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 codefendant Zuniga, 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 carjack. A few minutes later, another man came into the factory. He had been beaten up and his face was bleeding. After letting the injured man in, one of the employees closed the factory door. Later, loud banging on the 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 codefendants Zuniga, Carlos Lopez, and Omar Morales, standing on the corner. He testified that he saw this group near the factory almost every day when he arrived at and left work.
¶9 About three weeks later, shortly after midnight on December 24, Ortiz and Garcia were home when they heard a voice outside. They both recognized the person speaking as Daniel Roman, who was talking on a cell phone. Ortiz said Daniel Roman told the person on the phone to come over because there was someone they were going to beat up. Garcia heard Daniel Roman say "come help me. There is a person who works at the factory that we can beat up. Come on. Let's fuck him up." Soon after, Roman, Carlos Lopez, Ismael Morales, and Omar Morales arrived. Garcia and Ortiz recognized them because they had seen them hanging out in the neighborhood every day for four or five years. After the men gathered, they ran toward the factory parking lot where Francisco Reyes was driving a forklift. Juan Ramirez, one of Reyes' coworkers, testified that a supervisor had sent Reyes out to the parking lot shortly before the murder to unload a shipment of corn. The men grabbed Reyes off the seat of the forklift, forced him to the ground, and began hitting and kicking him.
¶10 At some point, Adolfo Zuniga arrived in a car and joined the others in beating Reyes. Then one of the men went across the street and picked up a concrete rock. Garcia testified Ismael Morales dropped the rock on Reyes' head and Carlos Lopez dropped the rock on him a second time. Ortiz also testified that a rock was dropped on Reyes' head twice, but did not identify who dropped it. Ortiz said that as Reyes lay on the ground, one of the men removed a wallet and some pieces of paper from Reyes' pocket and, after striking Reyes with the rock, scattered.
¶11 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. He ran back into the factory to call 911. Reyes was taken to a hospital where he died the next day. The medical examiner testified that the cause of death was cranial cerebral injuries due to assault.
¶12 Detectives Roberto Garcia and Peter Maderer investigated the murder. On December 27th, 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. Fernando Garcia identified photos of Roman, Daniel Roman, Ismael Morales, Omar Morales, Adolfo Zuniga, and Carlos Lopez as the perpetrators. Garcia also viewed three in-person lineups. At the first, he identified Omar Morales as one of the perpetrators. At the second, he identified Roman, Ismael Morales, Daniel Roman, and Adolfo Zuniga. At the third, he identified Carolos Lopez. Garcia, at trial, made an in-court identification of Roman as one of the men who beat Reyes. He also testified that he was "one hundred percent sure" Roman, Daniel Roman, and Ismael Morales were members of a street gang, the Latin Kings, because he often saw them in the neighborhood making gang signs and yelling at passing cars. The State also asked Garcia to illustrate the Latin Kings' gang sign and yell the gang's slogan, "King Love, " during his testimony.
¶13 On January 1, 2008, Sylvia Ortiz spoke to Detective Garcia at the police station. She testified she did not speak to the police on the night of the murder because she was afraid since the Morales brothers were related to her downstairs neighbor. The police showed Ortiz a photo array. She identified Roman, Ismael Morales, and Daniel Roman as three of the perpetrators but failed to identify Zuniga, who appeared in one of the photos. Ortiz later viewed three in-person lineups. At the first, she identified Roman, Ismael Morales, and Daniel Roman, and made a tentative identification of Zuniga. At the second lineup, she identified Omar Morales. At the third lineup, she identified Carlos Lopez. ...