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People v. Colon

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
PABLO COLON, Defendant-Appellant.

          Appeal 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.

          OPINION

          GORDON JUSTICE

         ¶ 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.

         ¶ 4 BACKGROUND

         ¶ 5 In the Analysis of each claim below, we provide a detailed description of the evidence relevant to resolve that particular claim.

         ¶ 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 appeal followed.

         ¶ 8 ANALYSIS

         ¶ 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 denied."

         For the 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"[1] or, as the trial court described it, an "admission by silence."[2] 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 issue.

         ¶ 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 conversation.

         ¶ 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 come."

         ¶ 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 ...


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