                                       2014 IL App (1st) 102938-B
                                             No. 1-10-2938
                                       Opinion filed June 30, 2014
                                                                                        Third Division

     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                  )     Appeal from the Circuit Court
                                                           )     of Cook County.
            Plaintiff-Appellee,                            )
                                                           )
     v.                                                    )     No. 08 CR 03180
                                                           )
     CARLOS LOPEZ,                                         )
                                                           )     The Honorable
            Defendant-Appellant.                           )     James B. Linn,
                                                           )     Judge, presiding.

     ______________________________________________________________________________

            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Pierce and Mason concurred in the judgment and opinion.


                                                  OPINION

¶1          Fifteen years old at the time of his arrest, defendant Carlos Lopez was convicted by a jury

     of murder for his participation, along with several codefendants, in the beating death of a factory

     employee in the parking lot where the victim worked. The trial court sentenced Lopez to 22

     years in prison. Lopez appealed, raising several errors at trial as grounds for reversing his
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     conviction, including the admission of evidence about an attack on a man by some of Lopez's

     codefendants in the same parking lot about three weeks earlier. Lopez argued that because he

     did not participate in the earlier crime, the State failed to meet the threshold requirement for

     admissibility under traditional "other crimes" analysis. We agreed, reversed Lopez's conviction,

     and remanded for a new trial. People v. Lopez, 2013 IL App (1st) 102938. Our supreme court

     then entered a supervisory order directing this court to vacate our judgment and reconsider our

     opinion in light of People v. Pikes, 2013 IL 115171. People v. Lopez, No. 116212 (March 10,

     2014) (supervisory order). As directed, we vacate our prior opinion and have reconsidered the

     case after carefully reviewing Pikes and supplemental briefs from the parties. We continue to

     hold that the trial court erred in allowing the evidence of the earlier, unrelated attack, and reverse

     and remand for a new trial.

¶2                                           BACKGROUND

¶3          In the early hours of December 24, 2007, Francisco Reyes was beaten and killed by a

     group of men in the parking lot of a tortilla factory in Chicago. Carlos Lopez and five other

     men, Daniel Roman, Martin Roman, Ismael Morales, Omar Morales, and Adolfo Zuniga, who

     lived in the neighborhood, were later arrested and charged with three counts of murder and one

     count of robbery. The State later dropped the robbery charge against Lopez. Before trial,

     defense counsel filed a motion in limine, to exclude evidence regarding an incident on December

     4, 2007, when three of Lopez's codefendants beat a man in the factory parking lot and smashed

     car windows. The defense also sought to exclude evidence of Lopez's gang membership. The

     trial court denied both requests, finding the evidence more probative than prejudicial.

¶4          Lopez, only 15 years old at the time of his arrest, was tried separately from his

     codefendants.    The State's evidence at trial consisted primarily of the testimony of two


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     eyewitnesses, Sylvia Ortiz and Fernando Garcia, who saw the murder occur. Ortiz and Garcia

     lived with their son in the second floor of an apartment building across the street from the tortilla

     factory. They said they watched the crime from separate windows of their apartment, which

     faced the parking lot.

¶5          Under the State's theory of the case, events leading up to the murder began in the early

     morning hours of December 4, 2007. Sylvia Ortiz testified that after arriving home from work

     around 1 a.m., she heard a banging noise outside. She looked out her window and saw three men

     hitting the factory door with baseball bats. Ortiz recognized all three men, Daniel Roman,

     Martin Roman, and Ismael Morales, because she frequently observed them hanging around the

     neighborhood. When no one opened the factory door, she saw the men break car windows in the

     parking lot. Ortiz called the police, who arrived about 15 minutes later.

¶6          One of the factory employees, Pedro Martinez, testified he arrived at work on the evening

     of December 3 and saw a group of young men, including Lopez, hanging out on the corner near

     the factory. Later that evening, a man whom Martinez had not seen before, came to the factory

     to sell a car jack. The man said a friend was waiting outside. A few minutes later, the friend

     came into the factory. He had been beaten up and his face was bleeding. Loud banging on the

     factory door could be heard, and the two men stayed in the factory until the banging stopped.

     Martinez went outside and saw that his car windows were broken and another car was damaged.

     Martinez saw the same crowd of five or six young men, including Lopez, standing on the corner.

     He testified that he frequently saw these men near the factory when he arrived at and left work.

¶7          About three weeks later, on December 24, Ortiz and Garcia were home around midnight

     when they heard a voice outside. They both recognized the person speaking as Daniel Roman,

     who was talking on a cell phone. Ortiz said that Daniel told the person on the phone to come


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     over and made a waving motion with his hand. Garcia heard Daniel say "come help me, I need

     to fuck him up, come help me, from the factory, let's fuck him up." Soon after, Lopez, Ismael

     Morales, Omar Morales, and Martin Roman arrived. After the men gathered, Garcia heard

     someone say “Let’s get him; let's fuck him up.” The group walked to the factory parking lot

     where Francisco Reyes was driving a forklift. Juan Ramirez, one of Reyes's coworkers, testified

     that a supervisor had sent Reyes out to the parking lot shortly before the murder to unload a

     shipment of corn. The group grabbed Reyes off the seat of the forklift, forced him to the ground,

     and began hitting and kicking him. At some point, Adolfo Zuniga arrived in a car and joined the

     others in beating Reyes. As Reyes lay on the ground, one of the men removed Reyes's wallet

     from his pocket. Then one of the perpetrators went across the street and picked up a concrete

     rock. Garcia testified Ismael Morales dropped the rock on Reyes's head and then Lopez dropped

     the rock on him a second time. Ortiz also testified that a rock was dropped on Reyes's head, but

     did not identify who dropped it. After striking Reyes with the rock, the men scattered.

¶8          Inside the factory, a supervisor asked Juan Ramirez to check on Reyes because he had not

     returned from unloading the corn. Ramirez found Reyes lying on his back in the parking lot and

     ran back into the factory to call 911. Reyes was taken to a hospital. He died the next day. The

     medical examiner testified that Reyes died of multiple cranial injuries caused by blunt force

     trauma.

¶9          Detectives Roberto Garcia and Peter Maderer investigated the murder. On December 27,

     Fernando Garcia went to the police station and told Detective Garcia what he saw the night of

     the murder.    He testified he did not come forward earlier because he feared retribution,

     particularly because the uncle of some of the perpetrators lived in the apartment below his.

     Garcia identified photos of Lopez, Omar Morales, Ismael Morales, Daniel Roman, Martin


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       Roman, and Adolfo Zuniga as the perpetrators.            Initially, Garcia identified Carlos Lopez's

       brother as being Carlos, but later identified Carlos as one of the perpetrators. Garcia also viewed

       three in-person lineups.    At the first, he identified Ismael Morales, Daniel Roman, Martin

       Roman, and Adolfo Zuniga as the perpetrators. At the second, he identified Omar Morales. At

       the third, he identified Lopez. At trial, Garcia made an in-court identification of Lopez as one of

       the men who beat Reyes.

¶ 10            On January 1, 2008, Sylvia Ortiz spoke to Detective Garcia at the police station about the

       December 24 murder. She too testified she did not come forward sooner because she was afraid.

       The police showed Ortiz photos. She identified Ismael Morales, Daniel Roman, and Martin

       Roman as three of the perpetrators. Ortiz later viewed three in-person lineups. At the first, she

       identified Ismael Morales, Daniel Roman, and Martin Roman.              At the second lineup, she

       identified Omar Morales. At the third lineup, she identified Lopez. She also identified him in

       court.

¶ 11            During the trial, Fernando Garcia testified he believed Lopez and his codefendants were

       members of a street gang, the Latin Kings, because he frequently saw them making gang signs

       and throwing rocks at the cars of rival gang members. During Garcia's testimony, the trial court

       instructed the jury as follows:

                       "This evidence is not to be considered by you–he is not accused of being in a

                   gang. That's not what he's on trial for, but this evidence is given as it may indicate

                   the witness's basis of his identification. This is how he claims to know who the

                   people are that he is suggesting are involved in this matter. It is for the basis of

                   identification and possible motive."




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¶ 12          Lopez did not testify or present any witnesses during the trial. Following closing, the

       jury deliberated and found Lopez guilty of first degree murder. In his motion for a new trial,

       Lopez argued, in part, that the State made prejudicial, inflammatory, and erroneous statements in

       its closing argument and the trial court erred by admitting evidence about the December 4

       incident and Lopez's gang membership. The trial court denied the motion and sentenced Lopez

       to 22 years in prison.

¶ 13          Lopez raised four issues on appeal, two involving errors by the trial court, two involving

       errors by defense counsel and the prosecutor. The first error dealt with the trial court's admission

       of other-crimes evidence against Lopez, namely the attack in the tortilla factory parking lot on

       December 4, about three weeks before Reyes' murder. The other errors involved the State's

       introduction of evidence of gang membership; the effectiveness of defense counsel in presenting

       a theory in opening statements that she did not support with evidence at trial; and the State's

       remarks during closing argument about Lopez, the victim, and the State's witnesses. Because we

       agreed with Lopez's first contention, that the trial court erred in admitting other-crimes evidence

       against him during trial required reversal and remand, we addressed the first issue only and did

       not address the remaining three issues.

¶ 14          In our opinion, we found that because the State presented no evidence Lopez was

       involved in the December 4 parking lot incident, the evidence was inadmissible under traditional

       other-crimes analysis. Lopez, 2013 IL App (1st) 102938, ¶ 19. We also rejected the State's

       contention the evidence was admissible even if Lopez was not involved in the prior crime

       because it was relevant to establish the motive for the subsequent murder. For support, the State

       cited People v. Morales, 2012 IL App (1st) 101911, which involved one of Lopez's codefendants

       and held that even if Morales was not present, evidence about the December 4 incident was


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       admissible if relevant to show a motive for the later Reyes murder. Morales, 2012 IL App (1st)

       101911, ¶ 32. Noting an apparent split of opinion in the appellate court, we found People v.

       Pikes, 2012 IL App (1st) 102274, to be the better-reasoned approach.

¶ 15            In Pikes, the defendant was charged with first degree murder for a drive-by shooting at a

       group of rival gang members that killed one man. Before trial, the State made a motion to

       introduce evidence against both Pikes and his codefendant of an earlier shooting committed by

       the codefendant. Pikes, 2012 IL App (1st) 102274, ¶ 4. As described in that motion, in the days

       before the drive-by shooting, a member of the Gangster Disciples street gang was riding a motor

       scooter when codefendant, a member of the Four Corner Hustlers street gang, shot at him. Id.

       Immediately afterward, a car driving behind the scooter struck the codefendant. Pikes argued

       that codefendant's shooting at the scooter should not be admitted as to him, because he was not

       present when it occurred. Id. While acknowledging that it was “ 'unaware of any evidence that

       [defendant] was present at the time of the shooting,' " the State argued that this incident was

       relevant and admissible against both defendant and codefendant to show motive for the murder.

       Id.     The trial court agreed with the State and admitted the evidence, finding that it was

       “extremely relevant[,] by far more probative than prejudicial” and “[w]ill help the jury

       understand the context” of the instant cause. (Internal quotation marks omitted.) Id. At trial, the

       State presented the statement of a witness who said he talked to Pikes and his codefendant just

       before the drive-by shooting and heard the codefendant say they were going to kill a Gangster

       Disciple in retaliation for the scooter incident. A jury convicted Pikes of first degree murder. Id.

       ¶ 17.

¶ 16            In appealing his conviction, Pikes argued, in part, that the trial court erred in admitting

       evidence of the scooter shooting against him because he was neither present nor involved in that


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       other crime and that because the evidence was highly prejudicial, reversal was required. Pikes,

       2012 IL App (1st) 102274, ¶ 23. The Pikes court held that because the State admitted it had no

       evidence Pikes was even present at the scooter shooting, let alone a participant, it failed to meet

       the threshold requirement for admission of other-crimes evidence, defendant's involvement

       beyond a mere suspicion. Pikes, 2012 IL App (1st) 102274, ¶ 27.

¶ 17          The court also rejected the State's argument that Morales supported a finding that the

       evidence of the scooter shooting was admissible because it was relevant evidence of defendant's

       motivation in the victim's murder. Pikes, 2012 IL App (1st) 102274, ¶ 29. The court found

       Morales was factually distinguishable and carved out a "tenuous" exception to the rule regarding

       other-crimes evidence. Id. ¶ 36. While the court acknowledged that under People v. Manuel,

       294 Ill. App. 3d 113 (1997) and People v. Rutledge, 409 Ill. App. 3d 22 (2011), prior intrinsic

       incidents could be admitted under simple relevancy principles rather than requiring the higher

       threshold of proof for other-crimes evidence, the court asserted, "what is dangerous about

       Morales is that it attempts to expand these holdings to cases where it is unclear whether the

       defendant participated in the prior acts." Id. ¶ 41-42. Where "there was no question that the

       defendants committed the prior acts sought to be introduced," the court said, "[w]e have no

       problem *** with the lower relevancy threshold." Id. ¶ 41. But the court found it could not

       follow Morales to find other-crimes evidence admissible where the State failed to show beyond a

       mere suspicion that defendant was involved or participated in that crime. Id. ¶ 42. The Pikes

       court noted that although the Morales court seemed to think such a distinction was irrelevant, "it

       still went out of its way several times to highlight the eyewitness testimony regarding the

       defendant's presence at the prior attack." Id. The court found that where the State conceded the

       defendant had not participated or been involved in the previous shooting incident, the evidence


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       was inadmissible and a basis for reversing the defendant's conviction and remanding for a new

       trial. Id. ¶ 45.

¶ 18             In agreeing with the approach in Pikes, we found "that absent a showing, beyond a mere

       suspicion, that a defendant was a participant in a previous crime or bad act, evidence about that

       crime is inadmissible." Lopez, 2013 IL App (1st) 102938, ¶ 31. We also disagreed with the

       State's assertion during oral arguments that Lopez's presence near the factory before and after the

       December 4 incident permitted the trial court to draw the inference he was involved in that

       crime. "Mere suspicion may result in a defendant being subjected to peril for something that he

       had nothing to do with or knew anything about." Id.

¶ 19             After we issued our opinion, the Illinois Supreme Court reversed the appellate court's

       decision in Pikes. People v. Pikes, 2013 IL 115171. The court held the admissibility of evidence

       regarding a collateral crime a defendant was not involved in should be judged under ordinary

       relevancy principles rather than traditional other-crimes analysis. Id. ¶ 20. The court found that

       because the evidence at trial, including the testimony of several witnesses, amply demonstrated

       Pikes was "motivated to assist [codefendant] in retaliating against the Gangster Disciples for the

       injury caused to [codefendant] during the scooter shooting incident" it was relevant to show the

       motive for the drive-by shooting. Id. ¶ 22.

¶ 20             While Pikes was pending, the State filed a petition for leave to appeal to the Illinois

       Supreme Court in this case. The supreme court denied the petition but entered a supervisory

       order directing this court to vacate its decision and reconsider in light of Pikes "to determine if a

       another outcome is warranted." People v. Lopez, No. 116212 (March 10, 2014) (supervisory

       order).




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¶ 21                                              ANALYSIS

¶ 22          As noted, Pikes provides that in cases such as this one, where the State seeks to introduce

       evidence of a prior crime in which the defendant was not a participant, admissibility should be

       judged under ordinary principles of relevance. Pikes, 2013 IL 115171, ¶ 20. " 'Relevant

       evidence' is defined as evidence having any tendency to make the existence of any fact that is of

       consequence to the determination of the action more probable or less probable than it would be

       without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011)." Id. ¶ 21. Even relevant evidence,

       however, may be excluded if its probative value is substantially outweighed by the danger of

       unfair prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011). The admissibility of evidence rests within

       the discretion of the trial court, and its decision will not be disturbed absent an abuse of that

       discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010).

¶ 23          In Pikes, the court found the prior scooter incident was relevant because witnesses

       testified they heard Pikes and his codefendant say they were going to kill a Gangster Disciple in

       retaliation for the earlier incident. Pikes, 2013 IL 115171, ¶ 22. Thus, the evidence of the prior

       crime, even though Pikes was not present when it occurred, was relevant to establish the motive

       of the later drive-by shooting. Id. ¶ 26

¶ 24          Here, a completely different situation is presented. The State presented no evidence at

       trial showing the Reyes murder was tied to the prior incident outside the factory.           In its

       supplemental brief, the State contends evidence showing that Lopez's codefendants beat up a

       man outside the factory on December 4, banged on the factory doors, and smashed car windows

       showed their animosity toward the people in the factory and was relevant to show the motive for

       the otherwise inexplicable attack on Francisco Reyes three weeks later. While it is possible that

       revenge was a motive, absent any evidence, the State's assertion rests on pure conjecture. In


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       Pikes, witnesses testified that Pikes and his codefendant were heard stating they wanted to kill a

       Gangster Disciple as revenge for the scooter shooting incident, in which Pikes's codefendant was

       hit by a car. Here, there was no evidence showing a connection between to the two incidents.

       Although some of Lopez's codefendants were involved in both crimes, the State did not present

       testimony or evidence showing the second crime was in retaliation for the first or that they were

       otherwise related. Furthermore, there was no evidence offered even showing Lopez knew about

       the earlier incident.

¶ 25           The key issue for the jury’s determination was whether the evidence presented by the

       State, including the testimony of two eyewitnesses to the incident, proved beyond a reasonable

       doubt that Lopez was one of the perpetrators in the beating death of Reyes. Evidence about an

       unrelated incident that occurred nearly a month earlier offered no probative value for the jury in

       making that decision. Motive, although not a necessary element to the crime, is relevant. For

       instance, the State presented testimony that Reyes's wallet was taken by the perpetrators, which

       is evidence that robbery may have been a motive. And in Pikes, the earlier scooter incident

       could be presented as evidence of a motive where Pikes and his codefendant were heard saying

       they were going to kill a member of the rival gang as retribution. But here, the State did not

       argue or present evidence other than the earlier incident to establish revenge as a motive.

¶ 26           The State contends the holding in Morales, 2012 IL App (1st) 101911, supports a finding

       that evidence about the December 4 incident was relevant circumstantial evidence showing

       motive and intent. As noted, Morales was an appeal by one of Lopez's codefendants following

       his conviction for the murder and robbery of Reyes. Like Lopez, Morales argued the December

       4 attack should not be admitted into evidence because there was insufficient proof he was

       involved in that incident. In Morales, unlike here, one witness, Fernando Garcia, testified


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       Morales was present in the factory parking during the December 4 incident. Morales, 2012 IL

       App (1st) 101911, ¶ 4. Garcia wavered on cross-examination, however, stating he was not

       certain Morales was present that night. Id. The appellate court found "Garcia's testimony was

       sufficient to put the defendant's participation in the December 4 incident before the jury." Id. ¶

       32. Therefore, the threshold requirement for other-crimes evidence, defendant's participation in

       the prior crime, was established. Relying on Manuel and Rutledge, the Morales court then

       reasoned that if the evidence sought to be admitted could be considered "part of the 'course of

       conduct' leading up to the crime charged, then it constitutes intrinsic evidence of the charged

       offense and its admissibility is not analyzed as 'other crimes' evidence, requiring proof that the

       defendant committed or participated in the uncharged offense." Id. ¶ 25 (citing Manuel, 294 Ill.

       App. 3d at 124).     Instead, the evidence is admissible under the more general, and lower

       threshold, principles of ordinary relevance. Morales, 2012 IL App (1st) 101911, ¶ 24. Based on

       this reasoning, the Morales court found the evidence of the earlier factory attack properly

       admitted against the defendant as intrinsic to the subsequent murder by providing a context for

       that crime. See id. ¶¶ 30-32.

¶ 27          The Morales court, however, went further and held the evidence would have been

       admissible whether or not defendant was present or participated in the previous incident.

       Morales, 2012 IL App (1st) 101911, ¶ 32. The court stated "[n]o such showing was required

       because the contested evidence was not 'extrinsic' to the murder and robbery charges against the

       defendant." Id. The showing that some of the same individuals were involved in the December

       4 and the December 24 incidents was sufficient for admission of the contested evidence.

       "Relevancy was key and that was shown by the involvement of some of the same individuals on

       December 4 that participated in the murder; that showing was sufficient for the admission of the


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       contested evidence. In other words, even if the evidence of the December 4 incident established

       that the defendant was not present, the jury was free to infer, based on the evidence before it, that

       the defendant took part in the murder and robbery to help his friends avenge their vendetta

       against the employees of the tortilla factory." Id.

¶ 28          Morales is distinguishable in that evidence was presented showing the defendant may

       have participated in the earlier crime. Although Garcia's testimony identifying Morales as

       present on the date of the December 4 incident may have been undermined on cross-examination

       (a proposition the appellate court found was unsupported by the evidence), it presented a

       question of fact for the jury. Morales's possible participation in the December 4 incident made

       evidence of that incident relevant to showing motive.

¶ 29          But how could Lopez be motivated to act by the December 4 incident without a whit of

       evidence establishing he participated in or even had any knowledge of it? Whether his co-

       defendants may have been motivated by the December 4 incident does not permit an inference as

       to Lopez’s motivation when the testimony regarding the incident has no connection to Lopez

       and, thus, does not have a tendency to make his participation in the December 24 murder more or

       less probable than it would be without the evidence.

¶ 30          The problem with admitting evidence about other crimes or bad acts is that it may

       overpersuade the jury that a defendant is a bad person who deserves punishment.                 That

       possibility is particularly strong here because the testimony regarding the December 4 incident,

       along with the State's introduction of testimony regarding Lopez's membership in a gang could

       have persuaded the jury that Lopez was a bad person who should be punished. The trial court

       erred in permitting the State to present the evidence where the State failed to show the relevance

       of the December 4 incident to the crime Lopez was accused of. As such, the evidence did not


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       make his involvement in the murder more or less likely.         Therefore, we reverse Lopez's

       conviction and remand for a new trial.

¶ 31                                              CONCLUSION

¶ 32          For the reasons set forth above, we reverse Lopez's conviction and remand his cause for a

       new trial, as provided in this decision.

¶ 33          Reversed and remanded.




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