Rehearing denied October 12, 2017
from the Circuit Court of Will County, No. 14-CF-274; the
Hon. Daniel J. Rozak, Judge, presiding.
Michael J. Pelletier, Peter A. Carusona, and Andrew J. Boyd,
of State Appellate Defender's Office, of Ottawa, for
W. Glasgow, State's Attorney, of Joliet (Patrick Delfino,
Lawrence M. Bauer, and Gary F. Gnidovec, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Presiding Justice Holdridge and Justice McDade
concurred in the judgment and opinion.
1 Defendant, Erick Maya, appeals following his convictions
for first degree murder, attempted first degree murder, and
unlawful use of a weapon by a felon (UUWF). He argues that
the circuit court abused its discretion both by admitting
certain evidence of defendant's prior bad acts and by
failing to provide the jury with an instruction limiting the
use of such evidence. Alternatively, defendant contends that
defense counsel was ineffective for failing to request that
jury instruction. As a separate argument, defendant contends
that the circuit court abused its discretion in finding that
the transcript of certain Facebook messages qualified for the
business records exception to the rule against hearsay.
Finally, defendant argues that the circuit court failed to
conduct a satisfactory inquiry under People v.
Krankel, 102 Ill.2d 181 (1984), after defendant made
pro se posttrial claims of ineffective assistance of
counsel. We reject defendant's evidentiary claims as well
as the related claim of ineffective assistance of counsel.
However, we remand the matter so the circuit court may make a
proper preliminary inquiry into those separate, pro
se claims of ineffectiveness raised by defendant at the
3 On March 6, 2014, the State charged defendant by indictment
with first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)),
attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1)
(West 2014)), and UUWF (720 ILCS 5/24-1.1(a) (West 2014)).
The indictment alleged that defendant shot Briana Valle,
causing her death; it also alleged that defendant shot Alicia
Guerrero with the intent to kill her. Defendant's trial
commenced on September 9, 2014.
4 Guerrero testified that she and her family moved to 342
Emery Avenue in Romeoville in October 2013. Prior to that,
they lived in a Chicago neighborhood by Cicero. Guerrero
testified that her daughter, Briana, was born on July 21,
1998. In the summer of 2012, Guerrero had a Facebook account
for herself under the name of Jessica Guerrero.
5 On August 24, 2012, Briana ran away from home. Guerrero
immediately began searching for her and called the police. In
her attempt to find Briana, Guerrero searched Briana's
bedroom. In examining Briana's computer, Guerrero learned
that Briana had been accessing Guerrero's own Facebook
account. Guerrero saw that a number of messages had been
exchanged between her account and a Facebook account under
the name of Pandillero Diciochero. Guerrero had never sent a
friend request to that account and had not personally
participated in that exchange of messages.
6 Through the messages, Guerrero learned that the owner of
the Pandillero Diciochero account lived in Cicero. Briana had
been gone for over a week when Guerrero went to Cicero in
search of her. After driving around for some time, Guerrero
spotted a building she recognized from the Pandillero
Diciochero Facebook account. Guerrero called the police.
However, after the police investigated, they informed
Guerrero that Briana was not there.
7 The next day, Guerrero convinced the building's
superintendent to allow her into the apartment. Briana was
not there. However, soon thereafter, the renters of the
apartment arrived. They told Guerrero that Briana was not
there but was located at an apartment a block away. Guerrero
then gave that information to the police and returned home
while police investigated. Later, Guerrero received a phone
call from a number she did not recognize. She did not
recognize the male voice on the phone. The individual told
Guerrero that he needed to return Briana and that he would do
so as long as Guerrero did not press charges. After that
phone call, Guerrero learned from the Cicero police
department that Briana had been found. The date was September
8 Abisai Ortiz testified that he lived with his girlfriend,
Cynthia Avila, and their daughter in Cicero. Prior to
December 2013, Ortiz and Avila lived in an apartment at 1342
South 50th Avenue in Cicero for "more than four, five
years." At some point during that period, Ortiz's
brother, Andres, also lived with him and Avila. Andres was
friends with defendant, and through Andres, defendant came to
live at 1342 South 50th Avenue with Ortiz, Avila, and Andres
for approximately one year. Ortiz identified defendant in
court but indicated that he did not refer to defendant as
"Erick Maya" but instead referred to him as
9 Ortiz identified a photograph of Briana. He recognized her
because she had been to the apartment on 50th Avenue. On
September 10, 2012, a woman came to the apartment. Ortiz
learned that she was Briana's mother and that she was
looking for her daughter. Ortiz told Guerrero that Briana had
been in the apartment but that he did not know where she was
at that moment.
10 Ortiz testified he had a Facebook account and was active
on the service. He recognized an exhibit shown to him by the
State as a printout of a Facebook page under the name
Pandillero Diciochero. He recognized the printout because he
was friends on Facebook with the Pandillero Diciochero
account. Ortiz testified that that Facebook account belonged
to and was used by defendant. The State also showed Ortiz a
printout of a second Facebook account, this one under the
name of Gangero Jente Difiesta. Ortiz was not Facebook
friends with this account but recognized the individual in
the profile picture as defendant.
11 Ortiz also testified that he owned a cell phone and that
his phone number was (708) 953-2118. He shared his phone with
defendant, often allowing defendant to borrow it at night.
The phone had internet access and was equipped with the
Facebook application. Ortiz further testified that he
exchanged text messages with defendant. From his own phone,
Ortiz would send the text messages to a number of (773)
349-2942, to which defendant would reply.
12 Avila testified that while she was living at the apartment
on 50th Avenue, she met a girl named Briana, whom defendant
had brought to the apartment. Avila met Briana in late August
2012. Defendant was proud and happy when Briana was around.
In speaking with Briana, Avila learned that she had run away
from home. Sometime after that, a Cicero police officer
appeared at the apartment, looking for Briana. Avila was
unable to help because she did not know where Briana was at
that particular time. Avila later met Guerrero when she came
to the apartment looking for Briana.
13 Guerrero testified that Briana could not stop talking
about a "Carlos" after she returned from Cicero.
Guerrero told Briana to stop talking about him and
confiscated her electronics. As time passed, Guerrero knew
that Briana remained in contact with the individual. Guerrero
testified: "When there's a will, there's a way.
She'll find a way. She would sneak anything. She went to
school and used people's phones. I got calls from him on
my phone. I knew it was still continuing." Guerrero
testified that the individual continued to contact her as
well, and she came to recognize his voice. Guerrero learned
from Briana that the individual's name was actually Erick
14 Guerrero testified that defendant's phone calls and
text messages had been unceasing and that Briana had seen him
around the neighborhood. In March 2013, fearing that
defendant would attempt to influence Briana to leave again,
Guerrero applied for an order of protection in Cook County on
behalf of her and her family.
15 On February 14, 2013, Guerrero picked her daughter up from
school. Briana was carrying balloons and flowers. Though
Briana told her mother the gifts were from friends, Guerrero
suspected they were from defendant. In September 2013,
Guerrero noticed that Briana was wearing what appeared to be
an engagement ring on her finger. The next month, Guerrero
moved her family to Romeoville in an attempt to get away from
defendant. Guerrero testified that Briana adjusted well to
her new school and seemed to be making friends. At that time,
Guerrero believed that Briana and defendant were no longer
16 In December 2013, Ortiz, Avila, and their daughter moved
to an apartment at 5600 West Park Avenue in Cicero. Defendant
moved in with them again. Avila testified that, at that time,
defendant was still in love with Briana. Later, however, he
told Avila that Briana had "broken up with him because
she was actually moving on to somebody else." Avila
observed that defendant was very mad about the situation.
Avila testified: "[H]e wanted to kill her. He would say
that he wanted to kill her because *** she was only supposed
to be with him, only with him." He said that on more
than one occasion. Defendant was also mad at Briana's
mother, blaming her for Briana moving on. Avila testified
that defendant was so angry that he would punch walls.
17 S.M. testified that she and Briana met and became friends
while the two attended Romeoville high school. S.M. had a
cell phone, and Briana once asked S.M. if she could use the
phone to text someone. When S.M. began receiving text
messages to her phone from a number she did not recognize,
S.M. labeled that number in her phone as "Briana's
guy." The phone number was (773) 349-2942. When S.M.
received messages from that number, she would show them to
Briana the next day.
18 In December 2013, S.M. saw a number of threatening text
messages that had come to her phone from "Briana's
guy." S.M. met with Romeoville high school resource
officer Tom Dorsey and allowed him to take screen captures of
the text messages. S.M. read for the jury a transcript of a
text message conversation between Briana and defendant, in
which Briana was using S.M.'s phone. Because of the
relevance of these text messages to the issue that defendant
has raised on appeal, we quote them at length.
19 In those messages, exchanged on December 3 and 4, 2013,
defendant explained that he had been in county jail since
October of that year and had missed Briana. Briana told
defendant that she missed him as well. As the conversation
progressed, defendant began expressing anger and jealousy.
"[Defendant]: Why are you still talking to niggas for? I
keep telling you to stop and you just won't listen. Am I
not good enough for you that you got to talk and see other
I tell you to have respect for me and you just won't. I
know you still talk to niggas. I know you have a new
boyfriend. I know you cheated on me. I have a big, strong
feeling. *** Stop lying to me and just tell me the niggas you
still talk to and how many niggas have you cheated on me
with. *** ***
*** Like I said, once a village hoe, always a village hoe.
I'm sick and tired of telling, begging you please stop,
please don't do that, don't do this. I'm tired
and fed up. *** One day after you get tired of being the
nation hoe, one day after you get tired of being used, abuse
and reused by everyone, you finally realize that I had it
good with Little Capone Erick did love me and now he is gone,
out of my life forever. *** You talking and chillin with
niggas, you cheating on me is what I don't want. I
don't want to share you with no one. I want you all to
myself. You are the person I want to spend the rest of my
life with, but you can't see that and obviously don't
want that. You are all I need and I am all you need, but I
guess you are too young and stupid to know that. *** Any
nigga don't matter who it is would have beat the living
fuck out of you. When you killed the baby, they probably
would have killed you and your fuckin mom but I didn't
even though I thought about it I didn't lay a finger on
you because I love you."
portion of defendant's text messages continued in the
same tone and substance for 4 pages of text transcript, 13
pages of trial testimony as read by S.M.
20 Over the next several days of text messaging,
Briana informed defendant that she did have a new boyfriend
but explained that she was not cheating on defendant because
defendant previously ended their relationship. Defendant
struck a more conciliatory tone than previously, telling
Briana that he loved her and begging her to get back together
with him. In this portion of the messages, defendant
occasionally referenced his memories of Briana, including
their sexual relationship. Occasionally, S.M. responded to
defendant's messages to inform him that she was not
around Briana. On those occasions, defendant asked S.M. about
Briana, as well as Briana's new boyfriend.
21 In the late hours of December 9, 2013, Briana said to
defendant (S.M. reading):
"Mmm, okay, but I don't want to have sex anymore,
so, no, baby, I mean I don't want to be with you. Please
understand me, I have a boyfriend. I have been with him for
two months already. He is 17. He goes to my school. I'm
moving in with him next year."
reply, defendant described the situation as "bogus as
fuck" and demanded the engagement ring back. Eventually,
S.M. texted defendant herself, encouraging defendant to move
on. When S.M. and defendant began exchanging messages, S.M.
asked defendant what his name was, to which defendant
replied: "[M]y name is gangero, cappone, lil green, but
my real name is erick u can call me wat ever u want."
22 In another exchange of text messages, beginning late on
December 12 and continuing into the morning hours of December
13, Briana told defendant that she was happy with her new
boyfriend. Defendant responded in part (S.M. reading):
"[J]ust give me my shit back or I will go to your crib
and steal everything your family has, your TVs, your jewelry,
your money, everything, like I did before. I'm glad I did
that to you. I made your pussy bleed and made you not walk
right. I raped the shit out of you. Tell your new boyfriend
how my dick tastes. On nation. I'm glad I took that shit
whether you wanted it or not. I didn't let you leave my
folks crib until I had my nut. Woowee crazy. Either you give
me my mother fucking ring back or I will go to your crib and
rape you again by gun point. I'll rape your mom and
I'll have my folks tripas rape your mom and little
brother. I don't give a fuck. My folks weasel will rape
your brother and mom. He's been locked up before for
rape. He don't mind getting some fresh meat you fucking
hoe. You want to fuck behind my back while I'm in the
county? It's cool. Just give my shit back you whore
before I hurt you little hoe ass."
defendant wrote (S.M. reading):
"I'm a go pick up my ring, so have it ready before I
kidnap you and keep you locked up in a trap and rape you for
months. No one will ever find you. So if you know what's
good for you, you will give me my ring back or else you know
what's coming. Watch your back because either I get it
back or I'm coming for that flat no good ass."
testified that all of the text messages sent from her phone
were sent by either herself or Briana. S.M. did not allow
anyone else to send text messages from her phone.
23 Dorsey, the Romeoville high school resource officer,
testified that he met with Guerrero and Briana after reading
the text messages sent to S.M.'s phone. Later, Dorsey
placed a phone call to the number from which the texts had
been sent. When no one answered, Dorsey left a message in
which he explained that he was conducting an investigation
regarding that phone number. Dorsey eventually received a
return phone call. The individual who called Dorsey
identified himself as Erick Martinez and admitted to sending
the text messages in question. In his investigation, Dorsey
acquired a photograph of defendant.
24 Kelley Henson, a detective with the Romeoville police
department, testified that she received permission from
Guerrero to take control of her Facebook account. Henson was
then able to retrieve a number of messages that had been sent
to Guerrero's Facebook account from the account bearing
the name of Pandillero Diciochero. Henson read for the jury a
series of messages that the Pandillero Diciochero account
sent to the Jessica Guerrero account on December 24, 2013. In
the messages, defendant apologized to Briana, told her that
he loved her, and wished her a merry Christmas. Defendant
ended the messages by writing "8-24-12 always n for
ever:) erick and briana always n forever for eternity
25 Henson further testified that she executed search warrants
for the Facebook account bearing the name of Gangero Jente
Difiesta. A portion of a January 26, 2014, conversation
between the Difiesta account and an account bearing the name
of Brian Lopez was published to the jury. The defense took
exception to the Difiesta-Lopez Facebook transcripts coming
into evidence through Henson's testimony. The State
maintained that the transcripts satisfied the business
records exception to the rule barring hearsay. In support,
the State filed a certificate of authentication, in which an
authorized custodian of records for Facebook averred that
"[t]he records provided were made and kept by the
automated systems of ...