People v. Colon

Decision Date28 June 2018
Docket NumberNo. 1–16–0120,1–16–0120
Citation117 N.E.3d 278,2018 IL App (1st) 160120,426 Ill.Dec. 861
Parties The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Pablo COLON, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

Stephen L. Richards, of Chicago, for appellant.

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.

JUSTICE GORDON delivered the judgment of the court, with 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. 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, 406 Ill.Dec. 731, 61 N.E.3d 999 (citing People v. Morgan , 197 Ill. 2d 404, 455, 259 Ill.Dec. 405, 758 N.E.2d 813 (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, 400 Ill.Dec. 20, 47 N.E.3d 985. 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, 406 Ill.Dec. 731, 61 N.E.3d 999. 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, 422 Ill.Dec. 627, 103 N.E.3d 991.

¶ 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, 417 Ill.Dec. 756, 89 N.E.3d 675 ("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, 400 Ill.Dec. 20, 47 N.E.3d 985. However, for the reasons discussed below, we do not find that an error occurred.

¶ 14 B. The Tacit Admission Rule

¶ 15 The statements at issue were admitted pursuant to Illinois Rule of Evidence 801 (eff. Oct. 15, 2015), which both defines hearsay and specifies that certain statements are not considered hearsay. The rule defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). The rule then specifies that certain statements are simply "not hearsay." Ill. R. Evid. 801(d) (eff. Oct. 15, 2015). Thus, these statements are not exceptions to the rule against hearsay; rather, they are simply not hearsay to begin with. These statements include a "Statement by Party–Opponent." Ill. R. Evid. 801(d)(2) (eff. Oct. 15, 2015). A statement by a party opponent includes "a statement of which the party has manifested an adoption or belief in its truth." Ill. R. Evid. 801(d)(2)(B) (eff. Oct. 15, 2015).

¶ 16 Adopted statements include what the case law calls a "tacit admission"1 or, as the trial court described it, an "admission by silence."2 The "tacit admission rule" is well established in our case law. See People v. Donegan , 2012 IL App (1st) 102325, ¶ 67, 362 Ill.Dec. 831, 974 N.E.2d 352 ("the tacit admission rule"); People v. Soto , 342 Ill. App. 3d 1005, 1013, 277 Ill.Dec. 604, 796 N.E.2d 690 (2003) ("the tacit-admission rule"); People v. Campbell , 332 Ill. App. 3d 721, 734, 266 Ill.Dec. 41, 773 N.E.2d 776 (2002) (a statement is admissible as a "tacit admission" "if sufficient evidence supports a finding that, in light of the totality of the circumstances, a defendant remained silent when faced with an incriminating statement, which, if untrue, would normally call for a denial"); Goswami , 237 Ill. App. 3d at 535, 178 Ill.Dec. 497, 604 N.E.2d 1020 (discussing "the rule" concerning "a tacit admission"); People v. Childrous , 196 Ill. App. 3d 38, 53, 142 Ill.Dec. 511, 552 N.E.2d 1252 (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, 277 Ill.Dec. 604, 796 N.E.2d 690 ; Donegan , 2012 IL App (1st) 102325, ¶ 67, 362 Ill.Dec. 831, 974 N.E.2d 352 ; Campbell , 332 Ill. App. 3d at 734, 266 Ill.Dec. 41, 773 N.E.2d 776 ; Goswami , 237 Ill. App. 3d at 535–36,...

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