Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 11 CR 6292 The
Honorable Maura Slattery Boyle, Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion. Justices Neville and Mason concurred in the
judgment and opinion.
1 Before this case was tried, a jury acquitted Joe Rosado of
delivering, on March 29, 2011, a controlled substance to an
undercover police investigator. After the acquittal, before a
different jury but the same judge, Rosado was tried in this
case for delivering a controlled substance to the same
undercover police investigator on March 23, six days before
March 29. The State was allowed to present testimony that
Rosado had sold drugs on March 29; however, Rosado was not
allowed to tell the jury of his acquittal. On appeal, Rosado
challenges both evidentiary rulings. We find that the trial
court abused its discretion: the March 29 testimony was not
proper other- crimes evidence, and Rosado should have been
allowed to inform the jury of his acquittal. We reverse his
conviction and remand for a new trial.
3 In 2011, Rosado was arrested for and charged with a series
of drug transactions that allegedly took place within a
two-week period in March 2011. In case No. 6287, Rosado was
charged with selling drugs on March 18, 2011. In this case
(case No. 6292), he was charged with delivering 15 to 100
grams of cocaine within 1000 feet of a high school on March
23, 2011. Finally, in case No. 6291, he was charged with
selling drugs on March 29, 2011. He was arrested on April 1,
4 The State elected to try the case involving the March 29
transaction first. Before trial, the State moved to admit
evidence of both the March 18 and the March 23 incidents as
"other crimes" evidence. The trial court denied
this motion, reasoning that the evidence was more prejudicial
than probative and that the jury might convict Rosado based
on the other-crimes evidence. At the jury trial, Rosado
argued that his brother, Javier Moreno, had sold the drugs;
Rosado was acquitted.
5 Before trial in this case, the State nevertheless moved to
admit evidence of the March 29 incident as "other
crimes" evidence, to show identity. The trial court
admitted the evidence over Rosado's objection, without
referencing whether the evidence was more probative than
prejudicial. The trial court also denied Rosado's request
to inform the jury that he had been acquitted of selling
drugs on March 29.
6 During opening argument, the State referred to the March 29
drug sale; Rosado's counsel then told the jury that it
should not consider the March 29 sale, but concern itself
with the charges at issue.
7 Officer Emerico Gonzalez testified that on March 23, 2011,
he was assigned to purchase narcotics from Rosado. Gonzalez,
wearing civilian clothes and driving a civilian vehicle, was
the "undercover" officer, while other police
officers performed surveillance and enforcement. Gonzalez had
a recording device, marked money with which to buy the drugs,
and a cell phone number that had been given to him by Rosado.
8 When Gonzalez entered the restaurant, a woman greeted him,
and he told her that he was looking for Jose. She corrected
him and told him he was looking for "Joe Joe."
Gonzalez did not see Rosado in the restaurant, so he asked
the woman if she could call Joe Joe. The woman did but told
Gonzalez that Joe Joe was not answering the phone. Gonzalez
called the number he had been given, but no one answered. The
woman made a second phone call and held a conversation. She
informed Gonzalez that Joe Joe would be there around 3.
Gonzalez walked out of the restaurant to his car and then
received a call from Rosado. A recording of this call and a
transcript (translated into English from Spanish) were
presented to the jury:
"Gonzalez: I wanted to ask you can we do something
Answer: What do you want[, ] the same thing?
Gonzalez: Yea yea, the same thing you gave me before for 800.
Answer: Okay can you give me five minutes I'll call you