People v. Cerda
| Docket Number | 1-17-1433 |
| Decision Date | 03 June 2021 |
| Citation | 2021 IL App (1st) 171433,197 N.E.3d 752,459 Ill.Dec. 98 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roberto CERDA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Brett C. Zeeb, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Mari R. Hatzenbuehler, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Following a jury trial, defendant Roberto Cerda was convicted of the murders of Andres Butron, Hector Romero (Little Smurf), and Ernesto Alequin (Papo) and sentenced to natural life in prison. At trial, the court allowed evidence of other crimes involving two illegal narcotics conspiracies with the "Ibarra crew," which comprised Arturo Ibarra, Raul Segura, and defendant. Defendant's role in Ibarra's crew was that of "watchdog." Evidence detailing multiple prior drug transactions with the Ibarra crew and victims Butron and Alequin (the Butron/Ibarra conspiracy), as well as with Renoras McDonald and brothers Stephen and Tyrece Bailey (the McDonald/Bailey/Ibarra conspiracy), was admitted at trial. Also admitted at trial, without objection, was cell site location information (CSLI) that was obtained by the police without a warrant. Defendant appeals, alleging that (1) the State failed to prove his guilt beyond a reasonable doubt, (2) the trial court abused its discretion in admitting other-crimes evidence, and (3) defendant was denied the effective assistance of counsel, where his attorney failed to move to suppress CSLI for his cellular phone. For the reasons that follow, we affirm.
¶ 3 In November 2009, Angelica Foeller resided at 2356 South Christiana Avenue with Andres Butron, along with their baby daughter and Foeller's son. Butron, who was on parole for selling drugs, worked at the Willie Wonka candy factory, where he did not earn much money. On one day in November, Foeller and Butron were at the Target store at 47th Street and Pulaski Avenue when they met two acquaintances of Butron's: a man named "Toro" (later identified as Ibarra) and a second unnamed individual (later identified as Raul Segura). Foeller became suspicious when the conversation turned to a proposed "construction business" because Foeller knew that Butron did not work in construction. When Butron instructed Foeller to go to the baby section of the store to get things for their daughter while he spoke with the men, Foeller refused because she was concerned for Butron. At the end of the conversation, Ibarra gave Butron his phone number, which Butron then saved in his cellular phone. At the time, Foeller did not know that Butron used more than one phone. Foeller later learned that the number associated with this second phone was (773) 573-0868.
¶ 4 On the drive home, Butron told Foeller that he wanted to get back into the drug business. Butron intended to be the "middleman" and locate buyers to purchase drugs from Ibarra. When Angelica noticed that Butron had extra money in his possession, she inquired about it, and Butron told her that they needed the money and that it came from a side job. He went on to explain that the extra money came from finding drug buyers for Ibarra. Believing that it would be better for her to carry the drugs since Butron was on parole, Foeller arranged to help him with the sales.
¶ 5 "Papo," later identified as victim Ernesto Alequin, was one of Butron's customers. Foeller described a drug sale that took place in December 2009. Accompanied by Foeller and their infant daughter, Butron drove to the parking lot of a strip mall at 47th Street and Kedzie Avenue, where he parked his car. While Foeller remained seated in the car with the baby, Butron walked down the alley to a garage where other people were standing. Butron returned with a sample of cocaine and handed it to Foeller, who then put the sample in her purse. They then went to meet Alequin at a public park, where, in exchange for the sample, Alequin gave Foeller a bag containing $5600.
¶ 6 Foeller separated out their share of $600, and Butron drove back to the strip mall to give Ibarra the remaining $5000. Ibarra was accompanied by the man whom Foeller had originally seen in November at the Target store (Segura), along with another man, whom Foeller would later identify as defendant, Roberto Cerda. Butron brought the bag with the $5000 to Ibarra's pickup truck, which bore "Santa Muerte" stickers on the back, and got inside the truck with Ibarra. Defendant, whom Foeller referred to as "the watchdog," stood outside and was "watching all over."
¶ 7 After making the transaction, Butron returned with the bag and handed it to Foeller. It contained multiple packages of drugs. After calling Alequin to inform him that Butron had Alequin's "stuff," Alequin drove back to the park and made the exchange. Between December and May 2010, Butron, Foeller, Alequin, and Ibarra conducted three or four deals in the same manner. For every transaction, defendant stood outside of Ibarra's truck, performing a "watchdog" function.
¶ 8 In March 2010, Butron told Foeller that he was concerned about a drug deal that Foeller had not participated in, among Butron, Alequin, and Ibarra. Butron was worried because Alequin underpaid Ibarra for the drugs that he had purchased from him.
¶ 9 The Ibarra crew was involved with other buyers in March 2010. One of them, crack cocaine seller Renoras McDonald, nicknamed "Oke," met a new supplier, introduced as "Migo" (Ibarra) at the home of his friends, brothers Stephen and Tyrece Bailey, who lived at 66th Street and Albany Avenue. Ibarra was accompanied by a second man, later identified as defendant, Roberto Cerda. After cooking a small amount of the cocaine, McDonald declined to make the purchase because he determined the cocaine to be of poor quality. McDonald told Ibarra that he would be willing to do business in the future if Ibarra could get something better than what McDonald had cooked.
¶ 10 Four days later, McDonald returned to Stephen's house to buy cocaine from Ibarra. Ibarra was again accompanied by defendant, whose arm was in a cast. This time the sale went through, and McDonald paid Ibarra about $5000 in exchange for the cocaine. During the exchange, defendant was looking around, and McDonald asked Ibarra why defendant did not speak. Ibarra told McDonald that defendant was not there to talk and made a gesture in which he pointed his first two fingers and thumb in the air and moved his thumb up and down in a vertical direction. McDonald understood the gesture to mean that defendant was there to shoot if something went wrong. Ibarra gave McDonald two phone numbers that McDonald could use to contact him.
¶ 11 Three days later, McDonald was again at Stephen's house to make another drug deal with Ibarra. Ibarra pulled up in a Durango truck and told McDonald and Stephen to come outside, whereupon Ibarra showed McDonald some cocaine. McDonald declined to buy the cocaine because the quantity was too small.
¶ 12 Then, on April 17, 2010, McDonald received a phone call from Ibarra, informing him that they would be "switching up" the way that exchanges would occur. In the future, Ibarra would require one day's advance notice and a specified requested quantity of drugs. The transfer would occur the following day at a place of Ibarra's choosing. McDonald arranged to meet Ibarra several days later to make another purchase.
¶ 13 On the evening of April 17, 2010, McDonald went to a nightclub with the Bailey brothers to celebrate McDonald's upcoming birthday. Tyrece Bailey told McDonald that he was going to try to purchase more drugs from Ibarra because Ibarra's drugs were better than what Tyrece had.
¶ 14 Three days later, on April 20, 2010, McDonald explained to Stephen Bailey Ibarra's new rules for purchasing drugs.
Stephen told McDonald that on April 21 Ibarra refused to sell Stephen drugs because too many people were with Stephen.
¶ 15 The following day, Stephen asked McDonald if McDonald had any means of contacting Ibarra. Later in the day, Stephen told McDonald that his cousin, Crawford Davis, could take Stephen to Ibarra. McDonald, who had been unsuccessful in buying drugs from Ibarra because of various excuses that Ibarra had been making, told Stephen to let McDonald know when he got the cocaine so that he could "cook it up" for Stephen. While McDonald knew how to cook the cocaine, Stephen did not. McDonald never heard from either Stephen or Tyrece again.
¶ 16 On April 22, 2010, Detectives Daniel Gorman and John Halloran were assigned to assist in the investigation of the narcotics incident involving the Bailey brothers and the Ibarra crew. The detectives requested that Chicago police intelligence officers locate an individual bearing the nickname "Okee" (McDonald). McDonald was located and interviewed by Detectives Gorman and Halloran. McDonald described Ibarra, the car that he drove, and the location that they were trying to "meet up at." He provided Ibarra's cell phone numbers and a description of Ibarra and defendant. After viewing photographs, McDonald identified Ibarra and defendant. Below defendant's picture, McDonald wrote "100%" because he was 100% certain about his identification of both defendant and Ibarra. McDonald also identified a photograph of Ibarra's truck, whose back window bore distinctive stickers.
¶ 17 The detectives learned that phone numbers provided by McDonald were registered to Sonia Ibarra of 4521 South Troy Avenue and that Arturo Ibarra resided with Sonia at that address.
¶ 18 On April 23, 2010, Sergeant Michael Bocardo and a team of about eight police officers were conducting surveillance at 4521 South Troy Avenue regarding the investigation of the narcotics incident involving the Bailey brothers and the Ibarra crew. Two of the...
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