Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 12 CR 1872603 The
Honorable Matthew E. Coghlan Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice Ellis concurred
in the judgment and opinion.
1 Defendant Pablo Colon was convicted after a jury trial of
first degree murder and sentenced to 40 years with the
Illinois Department of Corrections (IDOC).
2 On this appeal, defendant claims (1) that the trial court
erred by allowing, as a tacit admission by defendant, the
testimony of Wayne Kates recounting statements by Marco
Ramirez and Daniel Guerrero that were made during a gang
meeting at which defendant was present and that described the
murder; (2) that the trial court erred by granting the
State's motion to admit proof of gang membership and
affiliation, including expert testimony about gangs and gang
identification; (3) that the trial court erred by overruling
defendant's objection to the testimony of Mario Gallegos,
the only eyewitness, who identified defendant as one of two
people in a lineup who "kind of look like the people
that were there the date it had occurred," on the
grounds that the tentative statement did not qualify as an
identification and was more prejudicial than probative; (4)
that the trial court erred by failing to grant
defendant's motion to suppress defendant's statements
to the police where the police did not inform him that he had
a right to stop questioning at any time on the ground that
the Illinois right to counsel is broader than the federal
right and that suspects in Illinois should be informed of
their right to terminate questioning at any time; (5) that
defendant's sentence of 40 years was excessive and should
be reduced to 20 years where defendant was 20 years old at
the time of the offense and a minor participant; and (6) that
defendant's 40-year sentence was disproportionate to the
30-year sentence received by codefendant Gary Sams.
3 For the following reasons we affirm.
5 In the Analysis of each claim below, we provide a detailed
description of the evidence relevant to resolve that
6 In sum, the State's evidence at trial established that
on May 29, 2010, at midnight, a group of men, who belonged to
the same gang, approached two men on a nearby street because
one of the two men was wearing a red shirt, which was the
color of a rival gang. One of the two men, Mario Gallegos,
was able to escape, and he testified at trial as the
State's sole eyewitness. The other man, Alan Oliva, who
was wearing the red shirt, was beaten to death. The
State's evidence included a videotaped confession by
defendant describing his role in the offense, in which he
admitted that he was the first person to approach the two
men, that he was the one who demanded to know their gang
affiliation, and that he kicked the murder victim in the head
after the victim was down on the ground. The State's
evidence also included testimony by fellow gang member Kates,
concerning statements made by two of the attackers at a
subsequent gang meeting attended by defendant.
Defendant's statement to the police and Kates's
testimony varied from each other, in that defendant stated to
the police that there were six to eight men and that they
exited a party to approach the murder victim and the
victim's companion, while Kates reported that two of the
attackers, Ramirez and Guerrero, claimed that they exited a
vehicle with defendant and that they were the only three men
to approach the murder victim and that the victim was alone.
7 After listening to all the evidence, arguments and jury
instructions, the jury convicted defendant of first degree
murder, and the trial court sentenced him to 40 years with
IDOC. Defendant filed a timely notice of appeal, and this
9 I. Kates's Testimony
10 Defendant claims that the trial court erred by allowing
the testimony of Kates, which described statements made by
fellow gang members, Ramirez and Guerrero. The statements by
Ramirez and Guerrero were made during a gang meeting at which
defendant was also present. The statements included
Ramirez's statement that the three men-Ramirez, Guerrero
and defendant-exited a vehicle together in order to approach
the victim and that "they just kept beating the guy
until he stopped moving and then at that point, basically,
they took off before the cops would come." Since
defendant was present at the gang meeting and did not object
to Ramirez's and Guerrero's statements, the trial
court admitted the statements as an "admission by
silence" by defendant. See Ill. R. Evid. 801(d)(2) (eff.
Oct. 15, 2015). Specifically, the trial court ruled:
"Court feels it did qualify as an admission by silence.
The defendant was present during this conversation. He was
implicated, it would have been something that you would
expect him to deny. Court will allow it to come in as an
exercise of its discretion. Motion in limine
following reasons, we cannot find that the trial court erred.
11 A. Standard of Review
12 The admission of evidence is generally within the sound
discretion of the trial court, and we will not disturb a
trial court's evidentiary rulings absent an abuse of
discretion. People v. Romanowski, 2016 IL App (1st)
142360, ¶ 21 (citing People v. Morgan, 197
Ill.2d 404, 455 (2001)). An abuse of discretion occurs only
when the trial court's decision is arbitrary, fanciful,
or unreasonable to the degree that no reasonable person would
agree with it. People v. Lerma, 2016 IL 118496,
¶ 23. However, to the extent that admissibility of
evidence requires the interpretation of a rule and its
intended scope, our review is de novo.
Romanowski, 2016 IL App (1st) 142360, ¶ 21.
De novo consideration means that we perform the same
analysis that the trial court would perform. People v.
Jones, 2018 IL App (1st) 151307, ¶ 21.
13 On appeal, defendant claims that he preserved this error
for our review by objecting both at trial and in a posttrial
motion, and the State does not argue otherwise. See
People v. Sebby, 2017 IL 119445, ¶ 48 ("To
preserve a purported error for consideration by a reviewing
court, a defendant must object to the error at trial and
raise the error in a posttrial motion."). Since the
issue was preserved for our review, if there was an error,
the State would bear the burden of proving that the error was
harmless beyond a reasonable doubt. Lerma, 2016 IL
118496, ¶ 33. However, for the reasons discussed below,
we do not find that an error occurred.
14 B. The Tacit Admission Rule
15 The statements at issue were admitted pursuant to Illinois
Rule of Evidence 801 (eff. Oct. 15, 2015), which both defines
hearsay and specifies that certain statements are not
considered hearsay. The rule defines "hearsay" as
"a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Ill. R. Evid.
801(c) (eff. Oct. 15, 2015). The rule then specifies that
certain statements are simply "not hearsay." Ill.
R. Evid. 801(d) (eff. Oct. 15, 2015). Thus, these statements
are not exceptions to the rule against hearsay; rather, they
are simply not hearsay to begin with. These statements
include a "Statement by Party-Opponent." Ill. R.
Evid. 801(d)(2) (eff. Oct. 15, 2015). A statement by a party
opponent includes "a statement of which the party has
manifested an adoption or belief in its truth." Ill. R.
Evid. 801(d)(2)(B) (eff. Oct. 15, 2015).
16 Adopted statements include what the case law calls a
"tacit admission" or, as the trial court described
it, an "admission by silence." The "tacit
admission rule" is well established in our case law. See
People v. Donegan, 2012 IL App (1st) 102325, ¶
67 ("the tacit admission rule"); People v.
Soto, 342 Ill.App.3d 1005, 1013 (2003) ("the
tacit-admission rule"); People v. Campbell, 332
Ill.App.3d 721, 734 (2002) (a statement is admissible as a
"tacit admission" "if sufficient evidence
supports a finding that, in light of the totality of the
circumstances, a defendant remained silent when faced with an
incriminating statement, which, if untrue, would normally
call for a denial"); Goswami, 237 Ill.App.3d at
535 (discussing "the rule" concerning "a tacit
admission"); People v. Childrous, 196
Ill.App.3d 38, 53 (1990) ("When a statement is made in
the presence and hearing of an accused, incriminating in
character, and such a statement is not denied, contradicted
or objected to by him, both the statement and the fact of his
failure to deny it are admissible in a criminal trial as
evidence of his acquiescence in its truth.").
17 The tacit admission rule provides, "When a statement
that is incriminating in nature is made in the presence and
hearing of an accused and such statement is not denied,
contradicted, or objected to by him, both the statement and
the fact of his failure to deny it are admissible in a
criminal trial as evidence of the defendant's agreement
in its truth." Soto, 342 Ill.App.3d at 1013;
Donegan, 2012 IL App (1st) 102325, ¶ 67;
Campbell, 332 Ill.App.3d at 734; Goswami,
237 Ill.App.3d at 535-36; Childrous, 196 Ill.App.3d
at 53; Miller, 128 Ill.App.3d at 583. Our case law
has uniformly found that silence can constitute assent.
Donegan, 2012 IL App (1st) 102325, ¶ 67;
Soto, 342 Ill.App.3d at 1013; Campbell, 332
Ill.App.3d at 734; Goswami, 237 Ill.App.3d at
535-36; Childrous, 196 Ill.App.3d at 53
("assent may be manifested by silence");
Miller, 128 Ill.App.3d at 583 (when "silence is
an admission of guilt, proof of a defendant's silence is
essential to the admission of the declaration").
18 The necessary elements for admissibility under the tacit
admission rule are (1) that the statement incriminates the
defendant such that the natural reaction of an innocent
person would be to deny it, (2) that the defendant heard the
statement, and (3) that the defendant had an opportunity to
reply or object and instead remained silent.
Donegan, 2012 IL App (1st) 102325, ¶
67; Soto, 342 Ill.App.3d at 1013; see also
Campbell, 332 Ill.App.3d at 734; Goswami,
237 Ill.App.3d at 535-36; Childrous, 196 Ill.App.3d
at 53; Miller, 128 Ill.App.3d at 583.
19 The statement need not be made "in an accusatory
tone," so long as it is "evident that defendant was
being painted or portrayed as a participant in illegal and
prohibited activity." Miller, 128 Ill.App.3d at
584; Soto, 342 Ill.App.3d at 1013 (quoting
Miller for the same point). In Goswami, 237
Ill.App.3d at 535, the appellate court suggested the need for
"an accusative statement," when it stated that
"a defendant's silence following an accusative
statement may be considered as a tacit admission." While
the statement must be "accusative" in that it
charges the defendant with participation in an illegal
activity, Miller and Soto establish that
the tone in which the statement was made need not be
accusative. Miller, 128 Ill.App.3d at 584;
Soto, 342 Ill.App.3d at 1013.
20 C. Testimony at Issue
21 We describe here in detail the specific testimony at
22 Kates testified that, on August 21, 2010, he went with his
brother, Walter Mullenix, to "a gang meeting" at
Bernard Monreal's house. The assistant state's
attorney (ASA) asked who was at Monreal's house, and
Kates identified the people there as (1) himself, (2)
Kates's brother, (3) defendant, (4) Ramirez, (5)
Guerrero, and (6) Monreal. The topics discussed at the
meeting were "the transferring of power from Bernard
Monreal to [Kates's] brother," the lack of guns, and
the gang's lack of presence on the street. Kates observed
that "there wasn't enough people hanging out,
outside." With respect to the lack of presence, Kates
asked "why there wasn't anyone out there [?]"
and Marco Ramirez replied that "the area was hot."
At this point in Kates's testimony, the ASA inquired
again who was there, specifically asking, "During
this conversation who was present with you?"
(Emphasis added.) Kates answered, "It was me, my brother
Walter, Bernard Monreal, Daniel Guerrero, Marcos Ramirez and
[defendant]." Thus, there were only 6 people at the
meeting and all 6 were present at this point in the
23 Kates testified that the meeting occurred in Monreal's
living room. The ASA asked, "how close were you to each
other during the time you had this discussion?" Kates
replied a "couple [of] feet." Kates testified that
Ramirez then explained why the area was hot. Ramirez stated
that on May 29, 2010, he was driving in a vehicle with
defendant, Daniel Guerrero and a man known as
"Chucky" when they spotted a man who looked
"like a rival gang member or a flake." Ramirez
stated that "they pulled into the alley behind a
restaurant called a barbecue patio and at that point Marcos
Ramirez said that [Ramirez], Daniel Guerrero and [defendant]
exited the vehicle." Ramirez stated that they wanted to
check if the man had any gang tattoos or gang affiliation.
When Ramirez asked the man what gang he belonged to, he
responded that he did not belong to a gang and then turned
and tried to run away.
24 Kates testified that Guerrero stated that "he caught
up to the guy and he hit him with a baseball bat and he fell
down." Then Ramirez stated that "he ran up to him
and he started stabbing him while he was on the ground."
Ramirez stated that "he was trying to stab him in the
head." Ramirez further stated that "they just kept
beating the guy until he stopped moving and then at that
point, basically, they took off before the cops would
25 Kates testified that Monreal, Guerrero, Ramirez, Mullenix
and defendant were all members of the Satan Disciples gang
that Kates also belonged to.
26 On cross, Kates testified that the only two people who
talked about the murder at the meeting were Ramirez and
Guerrero and that defendant did not make any statements that
he stabbed anyone or wielded a baseball bat. In addition,
Kates testified that, during the meeting, defendant never
made any statements admitting any activities on the date of
the murder. Kates testified that he arrived at the meeting at
11 a.m. and he was there an hour.
27 D. Elements of Tacit Admission Rule
28 The first requirement of the tacit admission rule actually
has two parts: that the statement was incriminating and that
the natural reaction of an innocent person would be to deny
it. E.g. Donegan, 2012 IL App (1st) 102325, ¶
67; Soto, 342 Ill.App.3d at 1013. Ramirez's
statement that "they just kept beating the guy
until he stopped moving" implicated defendant in the
murder. (Emphasis added.) Ramirez stated that defendant had
exited the vehicle with Ramirez and Guerrero; thus, all three
of them exited together as one unit to approach the victim.
The fact that they continued to move as one unit was
evidenced by Ramirez's subsequent statement that
"they drove off before the cops would
come." (Emphasis added.) These statements of
"they" included defendant since defendant had
arrived at the scene in the same vehicle and exited it with
Ramirez and Guerrero. Ramirez's and Guerrero's
description of their own acts of stabbing and beating were
the initial acts in one course of conduct that ended with
their "beating the guy until he stopped moving."
Thus, Ramirez's and Guerrero's statements implicated
and incriminated defendant.
29 The natural reaction of an innocent person would have been
to deny it or, at least, to deny his own involvement.
E.g. Donegan, 2012 IL App (1st) 102325, ¶ 67;
Soto, 342 Ill.App.3d at 1013. At this point in the
meeting, Ramirez was trying to explain to Kates why the area
was so "hot" with police that the gang could no
longer maintain a presence on the street. Kates, according to
his testimony, was the brother of the person now taking over
the "power" of the gang. If defendant was not at
fault for this turn of events, one would expect him to
protest to the gang leadership-who were demanding an
explanation-that he was not one of the people who had beaten
an innocent man to death, thereby leading to the extreme
police presence on the street. However, defendant remained
silent, thereby indicating his assent to Ramirez's and
Guerrero's statements, including Ramirez's statement
that "they just kept beating the guy until he
stopped moving." (Emphasis added.)
30 The second requirement is that the defendant heard the
statement. E.g. Donegan, 2012 IL App (1st) 102325,
¶ 67; Soto, 342 Ill.App.3d at 1013. Kates
testified that there were only six people at the meeting,
that the six of them were meeting in a living room, and that
they were only a couple of feet away from each other.
Immediately before Kates testified about Ramirez's and
Guerrero's description of the murder, the ASA asked,
"During this conversation who was present with
you?" (Emphasis added.) Kates answered, "It was me,
my brother Walter, Bernard Monreal, Daniel Guerrero, Marcos
Ramirez and [defendant]." Thus, given the small size of
the meeting, the physical proximity of the participants to
each other, the private and confidential nature of the
meeting space, and Kates's testimony about who was
present for "this conversation," we cannot find
that the trial court erred in concluding that defendant heard
Ramirez's and Guerrero's statements.
31 The third requirement is that the defendant had an
opportunity to reply or object and instead remained silent.
E.g. Donegan, 2012 IL App (1st) 102325, ¶ 67;
Soto, 342 Ill.App.3d at 1013. In Kates's
testimony, there was no indication that defendant was
prevented at this meeting of only six people from objecting
or replying. In addition, the cross-examination established
that defendant was silent concerning the murder during the
meeting. Thus, all three requirements for admission under the
tacit admission rule were satisfied, and we cannot find that
the trial court erred by admitting these statements.
32 II. Gang Evidence
33 Second, defendant claims that the trial court erred by
granting the State's motion in limine and
admitting proof of gang membership and affiliation, including
expert testimony. The State claims that this evidence was
relevant to establish motive and common design. In response,
defendant argues that, aside from Kates's testimony
discussed above, there was no evidence that defendant knew of
a common gang purpose or motive for the murder and that
defendant's statements to the police "contained no
hint of a gang motive."
34 "Evidentiary rulings regarding gang-related evidence
are reviewed for abuse of discretion." People v.
Villarreal, 198 Ill.2d 209, 232 (2001); People v.
Johnson, 208 Ill.2d 53, 102 (2003); People v.
Gonzalez, 142 Ill.2d 481, 489-90 (1991). Although there
is "widespread disapproval that exists toward street
gangs," a defendant may not insulate the fact finder
from the fact of his gang membership, despite prejudice
toward it, if that fact is relevant to understanding the
case. Gonzalez, 142 Ill.2d at 488-89; People v.
Smith, 141 Ill.2d 40, 58 (1990) (although "in
metropolitan areas, there may be strong prejudice against
street gangs," such evidence need not be excluded if
relevant). It is left to the discretion of the trial court to
weigh the probative value and prejudicial effect of this
evidence to determine whether it should be admitted in any
given case. Gonzalez, 142 Ill.2d at 489. As we
observed above, an abuse of discretion occurs only when the
trial court's decision is arbitrary, fanciful or
unreasonable to the degree that no reasonable person would
agree with it. Lerma, 2016 IL 118496, ¶ 23.
35 "Gang membership evidence is admissible only when
there is sufficient proof that the membership is related to
the crime charged." Villarreal, 198 Ill.2d at
232; Johnson, 208 Ill.2d at 102; Smith, 141
Ill.2d at 58 (admissibility requires "sufficient proof
that such membership or activity is related to the crime
charged"). If the State does establish a relationship
between membership and the crime charged, it must also show
that membership is "relevant to an issue in
dispute" and that "its probative value is not
substantially outweighed by its prejudicial effect."
Villarreal, 198 Ill.2d at 232; Johnson, 208
Ill.2d at 102; People v. Johnson, 159 Ill.2d 97, 118
(1994). "One of the purposes for which gang evidence is
admissible is to 'provide a motive for an otherwise
inexplicable act.'" Villarreal, 198 Ill.2d
at 233 ...