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                               Appellate Court                          Date: 2018.12.28
                                                                        11:07:18 -06'00'



                   People v. Colon, 2018 IL App (1st) 160120



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



District & No.    First District, Fourth Division
                  Docket No. 1-16-0120



Filed             June 28, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-1872603;
Review            the Hon. Matthew E. Coghlan, Judge, presiding.



Judgment          Affirmed.


Counsel on        Stephen L. Richards, of Chicago, for appellant.
Appeal
                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Tasha-Marie Kelly, and Hareena Meghani-Wakely, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE GORDON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Burke and Justice Ellis concurred in the judgment
                  and opinion.
                                               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.

¶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.


                                                  -2-
       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

                                                    -3-
       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”); People v. Goswami, 237 Ill. App. 3d 532, 535 (1992) (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

          1
              Before 2015, Rule 801(d)(2) was titled “Admission by Party-Opponent.” Ill. R. Evid. 801(d)(2)
       (eff. Jan. 1, 2011). Thus, courts used the term “tacit admission.”
            2
              See People v. Goswami, 237 Ill. App. 3d 532, 536 (1992) (using the term “ ‘an admission by
       silence’ ” (quoting People v. Miller, 128 Ill. App. 3d 574, 583 (1984))).

                                                    -4-
       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 six people at the meeting and all six 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 that he was there an hour.



                                                  -5-
¶ 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.




                                                    -6-
¶ 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 (quoting Smith, 141
       Ill. 2d at 58); see also Smith, 141 Ill. 2d at 58 (“admissible to show common purpose or design,
       or to provide a motive for an otherwise inexplicable act”).
¶ 36        Defendant’s statement to the police, by itself, established that the murder was gang-related
       and gang-motivated and that, specifically, defendant’s participation in the offense was
       gang-related and gang-motivated.
¶ 37        Before we discuss defendant’s statement, we observe that his statement contained jargon
       and nicknames, and we provide here the definition and explanation for these terms given by a
       fellow gang member, Kates, during Kates’s trial testimony. For example, he testified that to
       “check” someone meant “to see if they have any gang affiliation or gang tattoos.” Kates also
       testified that “Klepto” was the nickname of fellow gang member Ramirez.
¶ 38        In part of defendant’s videotaped statement to the police, defendant stated that he
       (defendant) was at a party when “Klepto” (Ramirez) entered the party and stated that he
       (Ramirez) had observed members of “the Counts” at a nearby gas station. Immediately after
       Ramirez’s announcement, six to eight people exited the party. Defendant described how he
       approached the murder victim and “checked” him and what happened next:
                “Yeah, I’m the one who checked dude. I was like what’s up n***, what y’all is? And
                right away first n*** took off running and then boy was just stuck right there. Klep hit

                                                    -7-
               him in [the] back with the bat. First dude went down, the dude that was right there, I
               think that might have been the dude that got stabbed. I’m not sure cause I don’t know
               which one got stabbed. Klep hit him in the back. Boom. F*** the other dude took off
               across the street, couple of people went chasing after him but he was gone. Came back.
               Everybody was just like whooping him. I kicked him probably in the face. Yeah I
               kicked him in the face. That’s when he must’ve got stabbed.”
¶ 39       Later in the statement, defendant stated:
               “When I checked dude right here, he stands up to me. You know what I’m sayin[g].
               *** Everybody’s trying to circle around him. *** He’s already like this, looking
               around. Boom. This guy gets cracked in the back. *** This dude is already on the floor.
               People are kicking him, punching—there’s just a crowd. That’s why I’m sayin[g] I
               don’t know who stabbed him really cause there was a crowd. So I turned around, he’s
               right there. By that time, I kick him, bow, you know what I’m sayin[g]. I might have
               said a couple of things to him. You know what I mean. By that time, f***, there was
               just like cars on the street. Cars started beeping. Like started pulling over. You know
               what I’m sayin[g]. I ran; I was the first one there and I was the first one to run.”
¶ 40       Later in his statement, defendant repeated: “I was the first one to talk to the dude. And I
       checked him, whatever. F***, before the dude even saying anything he was—started getting a
       whopped. You know he got hit by the bat.”
¶ 41       In his statement, defendant emphasized the importance of gang affiliation and colors in the
       murder, stating: “I was the first one, so I seen them. They’re wearing all red. You know what
       I’m saying? That’s the Counts’ colors.” After observing these colors, defendant demanded of
       the murder victim: “ ‘What’s up b***? You know what I’m saying? What the f*** you all
       doing? It’s the wrong side.’ ” After that, “everbody’s punching and kicking him. *** I’m not
       going to lie. Kicked him, Ugh!”
¶ 42       Thus, defendant’s statement establishes that defendant was the first person to approach the
       murder victim and that defendant’s primary purpose in approaching the victim was to establish
       whether the victim was a member of a gang and, if so, which one. While the gang testimony
       may have had a prejudicial, even horrifying, impact on the jury, it would be impossible to
       understand why this group of men would spontaneously exit a party and beat an innocent
       passerby to death without this evidence, in particular, the victim’s wearing of the color red,
       which was the color of a rival gang. As a result, we can find no error here by the trial court in
       granting the State’s motion and admitting gang evidence.

¶ 43                                    III. Gallegos’s Identification
¶ 44       Third, defendant claims that the trial court erred by admitting, over defendant’s objection,
       certain testimony by Mario Gallegos, one of the two victims of the attack and the only
       eyewitness to testify at trial. Gallegos testified that he had selected defendant at a prior lineup
       as being someone who “kind of look[ed] like the people that were there the date it had
       occurred.” Defendant claims that this testimony was too speculative to be relevant and too
       inconclusive to qualify as an identification. The trial court found that Gallegos’s identification
       was “tentative” but that his tentativeness went to weight not admissibility. For the following
       reasons, we find that the trial court did not abuse its discretion by admitting this testimony.



                                                    -8-
¶ 45       Concerning the lineup that he viewed on September 12, 2012, Gallegos testified on direct
       examination:
                    “[ASA]:      Showing you         what     has    been      marked     as    People’s
                Identification—photograph marked as People’s Exhibit No. 19. Do you recognize
                what’s depicted in that photograph?
                    GALLEGOS: Yeah, I see the lineup.
                    [ASA]: This is a lineup you viewed?
                    GALLEGOS: Yes.
                    [ASA]: Do you remember seeing that lineup back in 2012?
                    GALLEGOS: Yes, I do.
                    [ASA]: Is there anybody in that lineup that you told the police officers you
                recognized?
                    GALLEGOS: I pointed out two of them.
                    [ASA]: Going from left to right on the photograph itself, starting here on the left
                side, going to the right, which person did you identify in that photograph?
                    GALLEGOS: Two in the middle.
                    [ASA]: Two in the middle?
                    GALLEGOS: Yeah.
                    [ASA]: What did you tell the officers pertaining to your identification of these two
                individuals at that time?
                    GALLEGOS: They kind of look like the people that were there the date it had
                occurred.
                    [ASA]: This is going back to the incident when you and Alan were struck with the
                bat?
                    GALLEGOS: Yes.
                    [ASA]: You told them that they kind of look like the persons?
                    GALLEGOS: Yes.”
¶ 46       Immediately after the above testimony, defense counsel objected to its admission on the
       basis that it was inconclusive. At the ensuing sidebar, the ASA stated that defendant was one of
       the two people whom Gallegos testified “kind of look like the people that were there.” The trial
       court agreed with defense counsel that this identification was “tentative” but ruled that the
       tentativeness of the identification “go[es] towards weight rather than its admissibility” and,
       thus, it was admissible.
¶ 47       After the sidebar, Gallegos further testified:
                    “[ASA]: Again Mr. Gallegos, you told us moments ago I believe that the two
                individuals in the middle that you say that look—well, tell me again, what do you
                recognize them as?
                    GALLEGOS: As the guys that were there.
                    [ASA]: You said earlier that guys, you believe they were the guys over there or
                possibly the guys?
                    GALLEGOS: Possibly.”
¶ 48       On cross, Gallegos testified:

                                                   -9-
                    “DEFENSE COUNSEL: When you saw this actual, physical lineup in September
                of 2012, you indicated that you made an identification of two people, is that correct?
                    GALLEGOS: Yes.
                    DEFENSE COUNSEL: Number two and number three, is that right?
                    GALLEGOS: Yes.
                    DEFENSE COUNSEL: You’re not—you were unable to positively determine that
                either number two or number three were there, is that correct?
                    GALLEGOS: That’s possible.
                    DEFENSE COUNSEL: Just possible.
                    GALLEGOS: It’s possible.
                    DEFENSE COUNSEL: When you say either two or three could have been there, is
                your testimony that it may have been either of these two people or that possibly both of
                them were there or both of them weren’t there?
                    GALLEGOS: I wasn’t—well, possibly like I said. They were Hispanic.”
¶ 49        On cross, Gallegos further testified:
                    “DEFENSE COUNSEL: Mario, you’re not really certain that [defendant] was there
                on 34th Street, my client, the individual you saw in that lineup in September of 2013?
                    GALLEGOS: I said possibly.
                    DEFENSE COUNSEL: Possibly. It’s possible he may not, is that correct?
                    GALLEGOS: Possibly, like I said.”
¶ 50        Whether a trial court erred in admitting a statement as a prior statement of identification is
       generally an issue that a reviewing court will reverse only for an abuse of discretion. People v.
       Temple, 2014 IL App (1st) 111653, ¶ 33. As we observed above, an abuse of discretion occurs
       only when the trial court’s decision is arbitrary, fanciful, or unreasonable, or where no
       reasonable person would agree with the position adopted by the trial court. Temple, 2014 IL
       App (1st) 111653, ¶ 33.
¶ 51        As we also observed above, Rule 801 of the Illinois Rules of Evidence defines both what
       statements constitute hearsay and what statements do not constitute hearsay. Ill. R. Evid. 801
       (eff. Oct. 15, 2015). The rule provides that a statement is not hearsay, if, in a criminal case, (1)
       “the declarant testifies at the trial or hearing,” (2) the declarant is “subject to cross-examination
       concerning the statement,” and (3) the statement is “one of identification of a person made
       after perceiving the person.” Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015). In the case at bar,
       Gallegos (1) testified at trial and (2) was subject to cross-examination. However, defendant
       claims that the State failed to establish the third requirement because the statement was too
       inconclusive to qualify as a statement “of identification.” Ill. R. Evid. 801(d)(1)(B) (eff. Oct.
       15, 2015).
¶ 52        In addition, defendant argues that the statement should have been excluded pursuant to
       Illinois Rule of Evidence 403, which provides, in relevant part, that, “[a]lthough relevant,
       evidence may be excluded if its probative value is substantially outweighed by the danger of
       unfair prejudice, confusion of the issue, or misleading the jury.” Ill. R. Evid. 403 (eff. Jan. 1,
       2011). Defendant argues that the statement was too speculative to qualify as relevant.
¶ 53        People v. Tisdel, 201 Ill. 2d 210 (2002), is instructive. In Tisdel, the defendant argued that
       the trial court erred in admitting, as identification evidence, testimony by State witnesses that

                                                    - 10 -
       they had viewed prior lineups containing persons other than defendant and had not made an
       identification. Tisdel, 201 Ill. 2d at 215. The supreme court construed “ ‘statements of
       identification’ to include the entire identification process.” Tisdel, 201 Ill. 2d at 219. In
       reaching this conclusion, the supreme court observed that defense counsel had an opportunity
       to, and did, in fact, cross-examine the witnesses extensively. Tisdel, 201 Ill. 2d at 221; see also
       Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015) (for a prior identification to be admissible in a
       criminal case, the declarant must be “subject to cross-examination concerning the statement”).
       Similarly, in our case, the statement was part of the identification process and was subject to
       cross-examination at trial.
¶ 54        In addition, in reaching its finding, the Tisdel court relied on Neil v. Biggers, 409 U.S. 188
       (1972). Tisdel, 201 Ill. 2d at 220. Normally, to assess identification testimony, Illinois courts
       consider the five factors set forth in Biggers, 409 U.S. at 199-200: (1) the witness’s opportunity
       to view the defendant during the offense, (2) the witness’s degree of attention at the time of the
       offense, (3) the accuracy of any prior description by the witness, (4) the witness’s level of
       certainty at the identification, and (5) the length of time between the crime and the
       identification. People v. Slim, 127 Ill. 2d 302, 307-08 (1989). The court takes all five factors
       into consideration, as well as all the circumstances. Biggers, 409 U.S. at 198-200. The
       witness’s level of certainty is only one of the five factors. See People v. Allen, 376 Ill. App. 3d
       511, 524 (2007) (studies show that there are “low correlations between the witness’s
       confidence and the accuracy of her identification”). In sum, we cannot find that the trial court
       abused its discretion by admitting the lineup testimony as a prior statement of identification,
       where defendant’s argument is based on only one of the Biggers factors, where the Illinois
       Supreme Court in Tisdel found that the entire identification process qualifies as a statement of
       identification, and where defendant had an opportunity to, and did, in fact, cross-examine the
       witness extensively concerning the statement and the tentative nature of his identification.
¶ 55        Defendant further argues that the statement’s probative value was outweighed by its
       prejudice and that Gallegos identified defendant only because he was “Hispanic.” Gallegos’s
       “Hispanic” comment was brought out on cross-examination when defense counsel was
       pressing Gallegos to explain what Gallegos meant when he had stated that defendant was
       “possibly” there. Gallegos replied, “I wasn’t—well, possibly like I said. They were Hispanic.”
       A trial witness’s statement about an offender’s ethnicity is admissible as a statement of prior
       identification, which then may be tested and explored on cross-examination. See Temple, 2014
       IL App (1st) 111653, ¶¶ 30, 41 (a witness’s prior statement that she observed “a white male
       when she looked out her window” was properly admitted as a statement of identification,
       where the declarant was available for cross-examination at trial). On appeal, defendant does
       not argue that the lineup was unduly suggestive. Thus, we cannot find the trial court abused its
       discretion by finding that any prejudicial effect of Gallegos’s lineup testimony was
       outweighed by its probative value.

¶ 56                                      IV. Miranda Warnings
¶ 57       Defendant claims that the trial court erred by denying his pretrial motion to suppress his
       statement to the police, on the ground that the police did not advise him of his right to stop the
       questioning. On appeal, defendant acknowledges that some Illinois courts have found that
       police are not required, as part of their Miranda warnings, to inform a suspect that he has the


                                                   - 11 -
       right to halt questioning at any time. 3 However, defendant argues that these cases are
       decades-old and that “the Miranda rights should include an explicit warning that the accused
       has the right to cut off or terminate questioning at any time.” In addition, defendant argues that,
       even if “the federal Miranda guarantee does not assure such a right,” such a right is provided
       by the Illinois Constitution. See People v. McCauley, 163 Ill. 2d 414, 442 (1994) (“Authorities
       must inform suspects that if they cannot afford an attorney, one will be provided, and that they
       may ask for one at any time and upon doing so, the interrogation must cease.”).
¶ 58       Both the State and defendant agree that de novo review is appropriate for this question,
       which is solely a question of law. Jones, 2018 IL App (1st) 151307, ¶ 21 (a pure question of
       law is reviewed de novo).
¶ 59       Normally, “when a trial court’s ruling on a motion to suppress evidence involves factual
       determinations and credibility assessments, the ultimate ruling will not be disturbed on appeal
       unless it is manifestly erroneous.” People v. Sorenson, 196 Ill. 2d 425, 430-31 (2001). “This
       deferential standard of review is grounded in the reality that the trial court is in a superior
       position to determine and weigh the credibility of witnesses, observe the witnesses’ demeanor,
       and resolve conflicts in the witnesses’ testimony.” Sorenson, 196 Ill. 2d at 431. However, a
       court will “review de novo the ultimate question of the defendant’s legal challenge to the
       denial of his motion to suppress.” Sorenson, 196 Ill. 2d at 431. In the case at bar, when
       deciding defendant’s pretrial suppression motion, the trial court did not hear any live
       testimony; rather it reviewed only the relevant portion of defendant’s videotaped statement. As
       a result, the evidence before the trial court and the evidence before us is the same. Thus, we
       agree with the parties that we should conduct a de novo review, which means that we perform
       the same analysis that a trial court would perform. Jones, 2018 IL App (1st) 151307, ¶ 21.
¶ 60       For this claim, defendant relies primarily on our supreme court’s decision in McCauley,
       where our supreme court stated in dicta: “Authorities must inform suspects that if they cannot
       afford an attorney, one will be provided, and that they may ask for one at any time and upon
       doing so, the interrogation must cease.” McCauley, 163 Ill. 2d at 442. In McCauley, our
       supreme court held that, when an attorney came to the police station where the defendant was
       being interrogated and the police refused either to tell the defendant that his attorney was
       present or to allow the attorney access to his client, the police violated the defendant’s right to
       counsel under the Illinois Constitution. McCauley, 163 Ill. 2d at 423-24; see also People v.
       Pitchford, 314 Ill. App. 3d 72, 78 (2000). Our supreme court held that, although the police did
       not violate defendant’s right to counsel under the United States Constitution, they did violate
       this right under the Illinois Constitution:
               “Regardless of the United States Supreme Court’s current views on waiver of the right
               to counsel under the Federal Constitution, the law in Illinois remains that ‘when police,
               prior to or during custodial interrogation, refuse an attorney appointed or retained to

           3
            People v. Merrero, 121 Ill. App. 3d 716, 722 (1984) (“although an individual has the right to cut
       off questioning at any time, Miranda does not require that the individual be informed of this right as
       part of the warnings”), overruled on other grounds by People v. Williams, 235 Ill. 2d 286 (2009);
       People v. Hudson, 8 Ill. App. 3d 813, 814 (1972) (Defendant “was not advised that he could have
       stopped the questioning at any time. Such warning, however, is not essential.”); People v. Washington,
       115 Ill. App. 2d 318, 328 (1969) (“[i]t was not necessary that defendant be informed that he could
       terminate the questioning at any period”).

                                                    - 12 -
               assist a suspect access to the suspect, there can be no knowing waiver of the right to
               counsel if the suspect has not been informed that the attorney was present and seeking
               to consult with him.’ ” (Emphasis in original.) McCauley, 163 Ill. 2d at 424-25
               (quoting People v. Smith, 93 Ill. 2d 179, 189 (1982)).
       See also Pitchford, 314 Ill. App. 3d at 78.
¶ 61       The McCauley court explained:
               “Our State constitutional guarantees simply do not permit police to delude custodial
               suspects, exposed to interrogation, into falsely believing they are without immediately
               available legal counsel and to also prevent that counsel from accessing and assisting
               their clients during the interrogation.” McCauley, 163 Ill. 2d at 423-24.
       See also Pitchford, 314 Ill. App. 3d at 78-79.
¶ 62       In the case at bar, defendant does not claim that his attorney was at the police station when
       defendant was being interrogated. Rather, he claims, based on McCauley, that the police were
       required to inform him, prior to questioning and as part of their Miranda warnings, that he had
       the right to terminate questioning at any time. Defendant does not cite a single Illinois case, in
       the almost 25 years since McCauley was decided, that cites McCauley for such a proposition or
       that holds what he asks us to hold based on it. Nor can we find one. Thus, we decline his
       invitation to expand the required Miranda warnings.

                                                V. Sentencing
¶ 63        Defendant’s remaining claims on appeal concern his sentence: (1) that his 40-year sentence
       is excessive and should be reduced to 20 years; (2) that his 40-year sentence is disproportionate
       to the 30-year sentence received by codefendant Gary Sams; and (3) that the trial court failed to
       consider, in mitigation, defendant’s youth at the time of the incident and defendant’s prior
       work record. For the following reasons, we do not find that the trial court abused its discretion
       in determining defendant’s sentence.
¶ 64        The sentencing range was between 20 and 60 years, and the State asked for the “fullest”
       sentence. 730 ILCS 5/5-4.5-20(a) (West 2010) (“Imprisonment shall be for a determinate term
       of (1) not less than 20 years and not more than 60 years ***.”). However, defendant received a
       sentence exactly in the middle of the sentencing range. At sentencing, the trial court articulated
       its reasons for selecting 40-year and 30-year sentences for defendant and codefendant Sams,
       which we provide here in full:
                    “THE COURT: Well, where do I begin? Certainly I wish that I could offer some
               explanation or answer to families from both sides in this case. Sometimes there are no
               answers. Why does evil exist in the world? Why do innocent people have to suffer? I
               don’t know. It is awful, senseless, and it is a tragedy for both sides. Three lives have
               been lost, and three families are broken and in pain. The [victim’s] family will never be
               able to visit their son except in a cemetery, and [defendant’s] and [codefendant Sam’s]
               families, at least they will be able to visit their sons in the penitentiary, but certainly
               that is not [a] consolation to them.
                    The Court has had the opportunity to review the Pre-Sentence Investigations, the
               letters submitted on behalf of all sides, letters in mitigation for [codefendant Sams], I
               have considered the certificates and this addendum for [defendant], certainly the victim



                                                   - 13 -
               impact statements are moving and speak greatly of the loss and pain that the family and
               friends of the [victim’s] family are suffering.
                   [Codefendant Sams] is 39 years old now. I have reviewed his background. It does
               appear that he had[,] while he was involved actively in the gang when he was younger,
               he had turned his life around to a certain extent. He was working as a laborer. There are
               letters of recommendation, letter of good deeds that he had done for his friends and his
               family. [Codefendant’s counsel] read one of those letters here in open court, and now,
               because of his senseless and stupid act on that night in May, he has ruined his life and
               severely damaged the life of those who love him. All of that is now flushed down the
               toilet for his willingness to participate in the beating of somebody simply because he is
               wearing the wrong color shirt.
                   With regard to [codefendant] Sams, after considering all the factors in aggravation
               and mitigation, his rehabilitative potential, judgment is entered on Count 1, and the
               Court finds an appropriate sentence to be 30 years in the Illinois Department of
               Corrections.
                   With regard to [defendant], [he] is a younger man. He was on probation at the time
               that this occurred, which the Court does find aggravating. He was still the Court
               believes an active member of the gang. I think he is still an active member of the gang.
               I don’t believe him when he says he is not. The Court heard his statement. The Court
               believes that he exhibited a certain amount of relish in describing what he did, and he
               was more active. He was the first one off the porch to beat these guys who he thought
               were rival gang members.
                   I have considered his statements, all the factors in aggravation and mitigation,
               including his rehabilitative potential, and judgment is entered on the finding. The Court
               finds an appropriate sentence to be 40 years in the Illinois Department of Corrections.”
¶ 65       “A reviewing court gives substantial deference to the trial court’s sentencing decision
       because the trial judge, having observed the defendant and the proceedings, is in a much better
       position to consider factors such as the defendant’s credibility, demeanor, moral character,
       mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36; People v.
       Alexander, 239 Ill. 2d 205, 212-13 (2010). Thus, a sentence within the appropriate sentencing
       range is usually accorded great deference. People v. Anaya, 2017 IL App (1st) 150074, ¶ 102.
       Although Illinois Supreme Court Rule 615(b) grants a reviewing court the power to reduce a
       sentence or the degree of an offense, our supreme court has cautioned that this power should be
       used cautiously and sparingly. Alexander, 239 Ill. 2d at 212. As a result, an appellate court
       “may not alter a defendant’s sentence absent an abuse of discretion.” Alexander, 239 Ill. 2d at
       212; see also Snyder, 2011 IL 111382, ¶ 36 (“a reviewing court may not modify a defendant’s
       sentence absent an abuse of discretion”). Our supreme court has found that, with respect to a
       sentence, an abuse of discretion occurs when the sentence is greatly at variance with the spirit
       or purpose of the law or manifestly disproportionate to the nature of the offense. Snyder, 2011
       IL 111382, ¶ 36; Alexander, 239 Ill. 2d at 212. A reviewing court must not substitute its
       judgment for that of the trial court merely because it would have weighed various sentencing
       factors differently. Alexander, 239 Ill. 2d at 213.
¶ 66       First, defendant observes that he obtained his GED in 2007, that he was only 20 years old
       in 2010 when this offense occurred, that between 2010 and 2012 he was employed as a forklift
       operator, and that his stepmother testified at sentencing that he was a good father, son, and

                                                  - 14 -
       brother. Although defendant claims that the trial court failed to consider his youth, the trial
       court specifically observed that defendant was “a younger man.” However, the trial court then
       observed that defendant was also on probation at the time of the offense “which the Court does
       find aggravating.” The presentence investigation report reveals that defendant was on
       probation for possession of a stolen vehicle when the current offense occurred.4 In addition,
       the trial court found that defendant was, and still is, an active gang member. During the
       sentencing hearing, defendant stated to the court: “I am not a gang member anymore, and I
       have not been for a long time. I had tattoos removed, moved out of the area where they are
       located, tried to better my life, and stopped all contact with them.” However, the trial court
       found, specifically, that it had made a credibility determination and that it did not believe
       defendant when he stated that he was no longer a gang member. After observing defendant’s
       demeanor first-hand, as well as all the evidence at trial, the trial court found “I don’t believe
       him when he says he is” no longer an active gang member. A reviewing court owes great
       deference to a trial court’s credibility determinations. Sorenson, 196 Ill. 2d at 431 (“the trial
       court is in a superior position to determine and weigh the credibility of witnesses, observe the
       witnesses’ demeanor, and resolve conflicts in the witnesses’ testimony”). Thus, we cannot find
       that the trial court abused its discretion when considering defendant’s age, education,
       employment history, and familial roles in light of his probation status and gang membership.
¶ 67        In particular, defendant argues that the trial court failed to consider his young age. In
       support, defendant quotes the United States Supreme Court’s decision in Roper v. Simmons,
       543 U.S. 551, 570 (2005), stating:
                “The reality that juveniles still struggle to define their identity means it is less
                supportable to conclude that even a heinous crime committed by a juvenile is evidence
                of irretrievably depraved character. From a moral standpoint it would be misguided to
                equate the failings of a minor with those of an adult ***.”
       At the time of the offense, defendant was 20 years old, which is years away from juvenile
       status. “When the legislature draws lines with respect to age, there will always be people who
       are close to the line.” Jones, 2018 IL App (1st) 151307, ¶ 73. Defendant asks us to consider a
       difference of years—not two days or two weeks, but years from juvenile status. “Since there
       will always be a defendant close to the legislative line, the statute at issue provided the
       judiciary with the ability to exercise discretion in fashioning an appropriate sentence within a
       particular range.” Jones, 2018 IL App (1st) 151307, ¶ 73. In the case at bar, the trial court
       utilized that discretion to fashion an appropriate sentence.
¶ 68        Defendant also claims that he had a minor role in the offense. While it is true that others
       stabbed or beat the victim with a bat, defendant admitted in his statement to the police that he
       was the first one to approach the murder victim, that he was the one who asked the victim for
       the victim’s gang affiliation, and that he kicked the victim in the head when the victim was
       already down. At sentencing, the trial court considered defendant’s statement to the police,
       observing: “The Court heard his statement. The Court believes that [defendant] exhibited a
       certain amount of relish in describing what he did and he was more active. He was the first one

          4
            With respect to defendant’s probation, the ASA argued at sentencing that defendant “was given a
       chance” and “what did he do? He committed murder.” The ASA argued, “The Judge that gave him that
       probation I am sure wishes that he gave him something more now, but no Judge can look in the future
       and tell that then.”

                                                    - 15 -
       off the porch to beat those guys who he thought were rival gang members.” Thus, the trial court
       did not find that defendant’s role in the offense was minor, and on appeal, we cannot find that
       the trial court abused its discretion in making this finding.
¶ 69        Next, defendant claims that his 40-year sentence was disproportionate because his
       codefendant Sams received 30 years. However, as we explained above, the trial court did not
       find defendant’s role as minimal as defendant claims. When defendant moved the trial court to
       reconsider his sentence on the ground that it was disproportionate to codefendant Sam’s
       sentence, the trial court explained that, most “importantly, I feel that [defendant’s]
       involvement in the offense was greater than that of [codefendant Sam’s]” because defendant
       was “leading the charge, so to speak, which the court felt deserved a more severe sentence than
       that of [codefendant Sams].”
¶ 70        In sum, we cannot find that the trial court abused its discretion in sentencing defendant.
¶ 71        As a final matter, defendant asks to review his sentence not only for an abuse of discretion
       but also de novo to consider whether the trial court complied with the Illinois constitutional
       provision requiring that “[a]ll penalties shall be determined both according to the seriousness
       of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const.
       1970, art. I, § 11. Defendant bases this claim primarily on a recent decision in which the Fifth
       District stated that it “encourage[d] our supreme court” to review the issue of whether the
       standard of review employed in sentencing should be expanded to a two-part process. People
       v. Etherton, 2017 IL App (5th) 140427, ¶ 22. In a two-part process, sentences would “be
       reviewed [de novo] to determine whether the trial court followed the constitutional and
       statutory guidelines in addition to whether the trial court abused its discretion.” (Emphasis
       added.) Etherton, 2017 IL App (5th) 140427, ¶ 22. However, the Fifth District concluded:
                    “After careful consideration, we decline to abandon our supreme court’s
                application of the abuse of discretion standard in reviewing sentences. Our supreme
                court has extensively considered the propriety of using the abuse of discretion standard
                in reviewing sentences and has repeatedly upheld the use of this standard. As an
                appellate court, we are bound to follow the decisions of our supreme court and have no
                authority to overrule them.” Etherton, 2017 IL App (5th) 140427, ¶ 21.
       Like our sister district, we decline defendant’s invitation to employ a different standard of
       review, and instead employ the standard required by our supreme court.

¶ 72                                        CONCLUSION
¶ 73      For all the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 74      Affirmed.




                                                   - 16 -
