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People v. Maya

Court of Appeals of Illinois, Third District

August 10, 2017

ERICK MAYA, Defendant-Appellant.

          Rehearing denied October 12, 2017

         Appeal 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 appellant.

          James 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 the People.

          Panel 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 posttrial stage.

         ¶ 2 FACTS

         ¶ 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.[1]

         ¶ 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 10, 2012.

         ¶ 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 "Little Green."

         ¶ 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 Maya.

         ¶ 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 communicating.

         ¶ 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.[2]

         ¶ 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. S.M. read:

"[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 guys?
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."

         This 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, [3] 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."

         In 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."

         Later, 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."

         S.M. 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 <3."

         ¶ 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 ...

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