People v. Ruiz ( 2019 )

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Appellate Court Date: 2019.06.13
08:36:33 -05'00'
People v. Ruiz, 2019 IL App (1st) 152157Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ABEL RUIZ, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-15-2157
Filed March 15, 2019
Rehearing denied April 11, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-13196; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Patricia Mysza, and Adrienne N. River, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE CONNORS delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Abel Ruiz, was convicted of first degree murder and
sentenced to 51 years in prison. On appeal, defendant contends that the trial court should not
have allowed into evidence, as tacit admissions, portions of a police station video recording
that included certain statements from a co-arrestee. Defendant also asserts that the mittimus
should be corrected to reflect an additional day of presentence custody credit. We affirm and
correct the mittimus.
¶2 I. BACKGROUND
¶3 The record reveals that defendant shot the victim, Brandon Cage, in the early morning
hours of June 12, 2013, near the intersection of 60th Street and Homan Avenue in Chicago.
Cage died from his injuries. At trial, defendant asserted that he shot Cage in self-defense. This
appeal concerns the use of a police station video recording that captured defendant’s
conversation with a co-arrestee, Steve Cervantes.
¶4 On April 24, 2014, defendant filed a motion to suppress statements. In part, defendant
stated that while at the police station after the incident, defendant and other arrestees
communicated with each other through the walls and doors of different rooms.1 Defendant
asserted that those private communications were captured by illegal eavesdropping via video
recording. On August 5, 2014, defendant filed an amended motion to suppress statements.
Defendant stated that his invocation of the fifth and sixth amendments was inadmissible under
Doyle v. Ohio, 426 U.S. 610 (1976). Defendant also asserted that any statements made by him
more than six hours after his arrest should be suppressed.
¶5 After a hearing, the trial court denied defendant’s motions. In its ruling, the court stated in
part that the police did not act surreptitiously and are required to have video recorders on when
witnesses or the accused are interrogated in homicide cases. Thus, there was no expectation of
privacy in the rooms at the police station.
¶6 Prior to trial, defendant again tried to exclude recorded statements by filing a motion
in limine to preclude the introduction at trial of a conversation between defendant and
co-arrestee Cervantes that took place in adjacent rooms at the police station shortly after the
incident. During the conversation, Cervantes stated, “You always take things too far,” “You
guys f*** take things too far, dude,” “For real, dude, you guys take things too f*** far,” “You
went too far, dude,” “Come on, man. No s*** man, you guys take things too f*** far,” and
“You guys take s*** too far, dude.” Defendant stated that he had asserted self-defense and the
reasonableness of his actions was directly at issue. According to defendant, Cervantes’s
commentary about defendant’s past actions was irrelevant, inadmissible, and highly
prejudicial. At a subsequent hearing, the State asserted that Cervantes’s statements were
responses to defendant’s questions. The State also did not intend to argue “any prior bad acts
for motive.”
1
We refer to the places where defendant and his co-arrestees were held at the police station as
“rooms.” In the record and in the parties’ briefs on appeal, different terms are used for the place at issue,
including an interrogation room, an ERI room, and a cell. A stipulation entered at trial referred to
defendant being in Room 6 and a co-arrestee being in Room 8. For consistency, we use the term
“room.”
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¶7 Ultimately, the court denied defendant’s motion in limine. The court found that the
conversation between defendant and Cervantes was not entitled to any constitutional
protections because it was not prompted by the police or law enforcement. The court further
stated that the statements were voluntary and defendant “could have said, ‘Listen, you’re out of
line by saying this,’ otherwise it could be considered *** an admission by silence.”
¶8 The matter proceeded to trial. The State’s witnesses included two people who were with
the victim, Cage, just before the shooting: Joseph Santiago and Amber Glassco. Santiago
acknowledged that he had a prior conviction for misdemeanor theft and further testified as
follows. In the early morning hours of June 12, 2013, he was at his house having beers with
friends, including Glassco, who was his girlfriend. Santiago and Glassco wanted cocaine, so
around 1 a.m., they drove Santiago’s van to the home of their friend, Brandon Cage, because
Cage knew someone who sold cocaine. After a brief discussion, Santiago, Glassco, and Cage
went to 60th Street and Homan Avenue. Cage sat in the back passenger-side seat of the van,
Glassco sat in the front passenger seat, and Santiago drove. When they arrived, Cage went to
the spot “where he would normally get cocaine” while Santiago and Glassco stayed in the van
with the windows down.
¶9 Santiago further testified that a dark Ford Taurus drove by and Santiago heard, “Ho, ho, ho.
Hold up. Hold up.” The Taurus stopped in front of Santiago’s van, and defendant emerged
from the back passenger seat. Defendant was wearing a jersey and shorts and had a shag
hairstyle, which meant he had “long hair from the bottom down.” Defendant pulled up his
shirt, pulled out a gun, and approached Santiago’s open window, where defendant put the gun
to Santiago’s head and asked, “What are you?” Santiago replied, “Nothing,” meaning that he
was not part of a gang. Defendant then told Santiago to “drop the forks,” and Santiago
complied. Defendant said, “You’re lucky. I would have killed your a***.” You’re lucky your
girlfriend’s here,” and walked back to the Taurus. At that point, Cage returned from getting the
cocaine and said, “What’s up?” to defendant, who was about 10 feet away from Cage.
Defendant asked, “Well, what you is?” and Cage replied, “GD Folks.” Defendant walked
toward Cage, shot him three times, and ran to the back passenger seat of the Taurus, which left
the area. Santiago told Glassco to call 911. After the police arrived and Santiago talked to the
officers, Santiago was placed in the backseat of a police car where, in a show-up identification,
he identified defendant as the person who shot Cage.
¶ 10 According to Santiago, before the shooting, Cage did not make any physical contact with
defendant, take any swings or slaps or try to punch defendant, or make any threatening
comments to defendant. Santiago also stated that Cage was not close enough to hit defendant if
he tried. Further, Cage did not have any weapons on him.
¶ 11 Glassco testified as follows. A little after midnight on June 12, 2013, she and Santiago
were at their apartment watching a basketball game and drinking. Around 1 a.m., Glassco and
Santiago drove to Cage’s house in their van. After they picked up Cage, they drove to 60th
Street and Homan Avenue to buy drugs. When they arrived, Cage went to make the purchase,
and Santiago and Glassco stayed in the van. A male voice came from the driver’s side and
asked Santiago “what he was.” Santiago blocked Glassco’s view of the man’s face, but
Glassco could see that the bottom part of his hair was long. The man told Santiago to “[d]rop
the forks.” After Santiago complied, the man told Santiago that he was lucky that Glassco was
sitting next to him because the man would have shot Santiago otherwise. While the man
walked to a dark Ford Taurus that was in front of the van, Cage returned and said, “What’s up?
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Folks.” The man asked what Cage was. After Cage replied, “I’m GD,” the man shot at Cage. A
gun was pointed at Cage, and Glassco heard three shots. Cage fell to the ground, and the man
ran to the Taurus, which drove off. Glassco called 911. Glassco denied seeing Cage with a
weapon or seeing Cage threaten or hit the man.
¶ 12 On cross-examination, Glassco stated that she was unable to see the man’s body, face, and
hands when he approached the van. Glassco also admitted that she could not identify the
shooter in a show-up identification at the scene or in a later lineup at the police station.
¶ 13 Also testifying for the State was Kristina Diosdado, who had been with defendant before
the incident and stated as follows. On June 11, 2013, Diosdado spent the day at the beach with
defendant, Andres Davila,2 and Cervantes, who was her boyfriend. Defendant’s nickname was
“Ghost,” and Davila’s nickname was “Tiny.” The group eventually drove to defendant’s
house, where Cervantes became so intoxicated that he fell asleep. After a few hours, Diosdado
left to drive Cervantes home. Diosdado drove a dark green Ford Taurus, Cervantes sat in the
front passenger seat, and defendant, who came along, sat in the back passenger seat. Diosdado
drove around with the windows down so Cervantes could get fresh air and perhaps wake up.
When the Taurus approached 60th Street and Homan Avenue, defendant asked to stop and
jumped out of the car. Using the rearview mirror, Diosdado observed defendant approach the
driver’s side of a van that was behind them. Since the Taurus’s windows were down, Diosdado
heard defendant check the occupants—a man and a woman—for gang affiliations. Defendant
also spoke to a man that Diosdado stated was Cage, though she did not know the man’s name at
the time. Defendant said, “King love,” and Cage said, “I’m Folks,” whereupon Diosdado heard
three or four shots. Diosdado did not see Cage punch or swing at defendant and did not hear
anyone say, “I’ll smoke you” or “take your things.” Defendant returned to the Taurus and told
Diosdado to “go.” Defendant had a gun on his lap. Diosdado drove around and encountered
Davila, who jumped into the car. A few blocks later, the police pulled over the Taurus.
¶ 14 On cross-examination, Diosdado admitted that she did not see what occurred between
defendant and Cage and did not know if Cage struck defendant.
¶ 15 The State also presented testimony from several law enforcement officials, including
Officer Filiberto Rosas, who testified that after he monitored a call at about 1:25 a.m. on June
12, 2013, he pulled over a car where defendant was sitting in the backseat. After a search, a gun
was found underneath the front passenger seat. Ellen Chapman, a forensic scientist for the
Illinois State Police forensic crime center, testified that based on a gunshot residue analysis,
defendant discharged a firearm, contacted a gunshot residue-related item, or was in the
environment of a discharged firearm. The parties stipulated that Dr. James Filkins, who retired
from the Office of the Cook County Medical Examiner, would testify that Cage was 5 feet, 11
inches, and weighed 254 pounds. Dr. Filkins observed three gunshot wounds on Cage’s
abdomen and chest. Dr. Filkins would further testify that Cage’s cause of death was multiple
gunshot wounds and the manner of death was homicide.
¶ 16 Detective Michael Jackson testified that after the incident, defendant, Diosdado,
Cervantes, and Davila were taken to a police station and placed in separate rooms. Defendant’s
and Cervantes’s rooms were across from each other. Each room had video surveillance that
was activated the entire time each person was in custody. A video camera is permanently
2
Diosdado referred to this person as “Andrew” and “Tiny.” On cross-examination, defense counsel
referred to this person as Andres Davila.
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mounted in the corner of each room and records anything that happens inside the room.
Detective Jackson stated that the rooms are locked from the outside and the person inside is not
free to leave. At one point, Detective Jackson was notified that people in the rooms were
yelling and talking to each other in Spanish. A Spanish-speaking officer believed that they
were discussing the incident.
¶ 17 The parties entered the following stipulation about the conversation between Cervantes
and defendant at the police station. Officer Raul Cortez would testify that his first language
was Spanish and he was fluent in English and Spanish. On June 12, 2013, he listened to a
conversation between defendant and Cervantes. Officer Cortez would testify that he
understood what was being said in Spanish. The conversation was video-recorded and
translated from Spanish to English. Officer Cortez watched the video recording of the
conversation and would testify that it accurately represented defendant and Cervantes’s
conversation. Further, Officer Cortez read the Spanish-to-English translation, which was true
and accurate to the best of his knowledge.
¶ 18 At that point, the State moved to enter into evidence the DVD recording of defendant’s
room at the police station, which captured the conversation between defendant and Cervantes.
In a sidebar, defense counsel objected, noting that he had previously objected to the DVD
being admitted. Defense counsel stated that the DVD contained prejudicial hearsay statements
from Cervantes, and it was counsel’s understanding that the State would give the jury
transcripts of the conversation that were transcribed by the State. In response, the State
maintained that the words coming from people other than defendant were not being offered as
evidence. The State also asserted that the jury would be instructed not to consider what was
heard from others as evidence. Further, the transcripts served as a demonstrative aid and would
not go back in evidence. The State added that it had prepared an instruction that the jury was
not to consider the transcripts as evidence. The court overruled defense counsel’s objection to
admitting the DVD.
¶ 19 Before the DVD was played, the court told the jury the following:
“Ladies and gentlemen, by now you should have been provided with a transcript of
the video that’s about to be played. I just want to give you a little information
concerning this. This is not evidence, this is what we call demonstrative evidence, this
means it’s going to aid you in watching the video. The only evidence is the video. You
will not get these transcripts back into the jury room.”
¶ 20 The DVD was then played for the jury. The transcript was not entered into evidence. Below
are excerpts of the conversation between defendant and Cervantes that was shown on the
DVD.3
“OFFICER: I’ll be with you in a minute.
DEFENDANT: Hey officer! Hey officer! I need to use the bathroom, man.
OFFICER: (Inaudible)
DEFENDANT: Hey, Flay?
3
The excerpts are from a transcript prepared by appellate defense counsel that contains the captions
at the bottom of the video recording. The written transcript that was given to the jury is not in the
record. The State agrees that appellate defense counsel’s transcript accurately reflects the captions at
the bottom of the video recording.
-5-
CERVANTES: What up?
DEFENDANT: What’s up dude?
CERVANTES: What’s going on?
DEFENDANT: Man, dog.
CERVANTES: What happened?
DEFENDANT: We did a f*** job, dude.
CERVANTES: Who?
DEFENDANT: I did.
CERVANTES: Huh?
DEFENDANT: I did it.
CERVANTES: And what happened?
DEFENDANT: Some a***, dude. You know, dude.
CERVANTES: No, what happened?
DEFENDANT: What do you mean what happened?
***
DEFENDANT: Hey, officer
OFFICER: Yep?
DEFENDANT: Can I use the bathroom after him?
OFFICER: Absolutely
DEFENDANT: Thanks
***
DEFENDANT: What the f***, man? They got me handcuffed dog.
CERVANTES: What—what did they tell you?
DEFENDANT: Nothing that—that they are investigating, dude, but they found the
f*** cannon in the car, dude.
CERVANTES: And who did they blame?
DEFENDANT: Nobody, dude. They just—they just took us, dude, but I told this
guy run, dude, and the guy just put it under the car, dude.
CERVANTES: Who?
DEFENDANT: Tiny put the cannon under the seat. I told this guy to run, dude and
guy didn’t run. Hey!
***
DEFENDANT: I caught—I caught an a*** over there, dude. I caught a f***, dude.
CERVANTES: And what happened?
DEFENDANT: I let him have it, dude.
CERVANTES: But who is going to take the blame, dude?
DEFENDANT: Man, n***, this guy told me—he’s all like, look when I told him to
run he’s all like, man, I’m going to say it’s mine dude. That’s what he told me.
CERVANTES: Don’t f*** around, dude. You guys go f*** overboard.
-6-
DEFENDANT: Man, dude, I told this guy dog—run, dude. The guy didn’t run. He
just put it under the—the—the seat, dude.
CERVANTES: Hey, dude. Hey
DEFENDANT: Yo.
***
CERVANTES: Hey man, I—you guys do f*** up s***, dude.
DEFENDANT: Why dude?
CERVANTES: Because right now man they have something on all of us.
DEFENDANT: (Audible sound) Dude, you were—you were sleeping or very
drunk, dude.
CERVANTES: So what! But who do they (inaudible) the f*** gun with there?
DEFENDANT: What?
CERVANTES: Don’t f*** around dude. You guys do some f*** up s***.
DEFENDANT: I told this guy run dude and this guy didn’t want to. I’m going to
tell them it’s mine, dude.
***
DEFENDANT: Hey officer!
OFFICER: I’ll be with you in a minute, man.
***
CERVANTES: You guys f*** take things too far, dude. It was really hot with—
DEFENDANT: Huh?
CERVANTES: —with—with cops, dude. I don’t even know, dude. Hey dude.
DEFENDANT: Yeah.
CERVANTES: For real, dude, you guys take things too f*** far. You have to do
something, dude.
DEFENDANT: That guy said he was going to take the blame, dude. I told this guy
to run dude and the guy didn’t run. I told him way before that they were going to stop us
when—when we saw the cops I told him, get out dude and run dude. Just put it under
the seat, dude. He said, I’m going to say that it’s mine. That’s what he told me, dog.
CERVANTES: But don’t f*** around, dude. I’m here and also my lady.
***
DEFENDANT: Where is she?
CERVANTES: I don’t know, dude. You went too far, dude.
(Officer enters room.)
OFFICER: You’re under cuff?
DEFENDANT: Hmm-hmm, why do they got me handcuffed? (inaudible)
OFFICER: Why do you think?
***
OFFICER: Come on, use the bathroom.
(Defendant and officer leave the room).
CERVANTES: Ghost.
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DEFENDANT: Yo.
CERVANTES: Where you at?
DEFENDANT: In the bathroom.
CERVANTES: Where is f*** Tiny, dude?
DEFENDANT: I don’t know, dog.
CERVANTES: You guys take things to [sic] f*** far, dude, man! Hey dude.
DEFENDANT: Yeah.
CERVANTES: What—what was the f*** stupid fight about, dude.
DEFENDANT: Huh?
CERVANTES: What were all of you doing yesterday, dude?
DEFENDANT: Yesterday we went to eat, a***.
CERVANTES: And you filled him up with lead?
DEFENDANT: Hell yeah.
CERVANTES: Hey dude.
DEFENDANT: Yeah.
CERVANTES: Don’t f*** around, dude, well tell them something dude. I—I
didn’t even know.
OFFICER: You set man?
DEFENDANT: Yes sir. The water doesn’t work?
OFFICER: I know.
DEFENDANT: I can’t get a drink of water?
OFFICER: Yeah, I’ll bring you some water. I got a lot of stuff going on here.
DEFENDANT: (Inaudible)
(Defendant and officer return to room.)
OFFICER: What the f***?
DEFENDANT: Do you really got to handcuff me?
OFFICER: Yeah, I do. I really do. What I’m gonna do though is I’m gonna double
lock them. They can’t get any tighter, okay?
DEFENDANT: All right.
OFFICER: All right.
DEFENDANT: Thanks
OFFICER: (Audible sound)
DEFENDANT: I really appreciate that water, sir.
OFFICER: I’ll get it.
DEFENDANT: Thanks
OFFICER: I feel like I’m runnin’ a hotel over here. I’ll be back to talk to you.
DEFENDANT: All right.
(Officer leaves the room.)
***
CERVANTES: Come on, man. No s***, man, you guys take things too f*** far.
-8-
CEVANTES: No—hey.
DEFENDANT: What?
CERVANTES: Did they get the—the gun?
DEFENDANT: Yeah, n***, I told you—I told you what happened, dude. This idiot
I told guy to run I told the guy to run, man and—and this guy said he put it under the
seat and he said, I’m going to say it’s mine. That’s what he said, dog. I tellin’ this n***,
run dude, run your a*** off—run and this guy didn’t want to, dude.
CERVANTES: F*** dumb guy. What happened, man?
DEFENDANT: I filled a guy with lead close range, n***.
CERVANTES: What?
DEFENDANT: Close range—I filled him with lead, dude. (Inaudible)—
***
CERVANTES: Tell them I didn’t do anything, dude.
DEFENDANT: A’ight.
CERVANTES: Tell them right now.
DEFENDANT: Wait when the guy gets here.
CERVANTES: You guys take things too f*** far, dude.
CERVANTES: Tiny?
DEFENDANT: I think they are interrogating that guy, dog.
***
DEFENDANT: Where’s your lady at?
CERVANTES: Oh, a***, they have her arrested too, dude.
DEFENDANT: I know, but where at? N***, where’s she at?
CERVANTES: Downstairs. You guys take things too f*** far, dude.
DEFENDANT: F*** man.
CERVANTES: Well tell them, dude, for real.
***
CERVANTES: Hey dude.
DEFENDANT: Yeah.
CERVANTES: Did you see the f*** fall?
DEFENDANT: He fell, dude, in front of me, dude. And when I—and when I tried
to fill him up with lead again I didn’t have anymore, dude. I let him have like four or
five, dude. Hey dude!
CERVANTES: Yes.
DEFENDANT: When you get out, dude, ask your old lady. She saw everything,
dude.
***
CERVANTES: Stop screwing around, dude. Tell them something, dude. Tell them
I didn’t even know.
DEFENDANT: Huh?
-9-
CERVANTES: But tell them dude, that—that I didn’t even know. Knock and tell
him, dude.
DEFENDANT: Hey officer. Man dog, this guy told me he was going to take the
blame, dog. F*** man!
CERVANTES: Oh yes, okay! That’s why they have all of us, dude.
DEFENDANT: F*** man.
CERVANTES: Officer.
DEFENDANT: Officer.
***
CERVANTES: What happened?
DEFENDANT: They came out with their guns and told us to—to put our hands up.
CERVANTES: No s***, dude. I was so drunk, dude. Tell them, dude.
DEFENDANT: Hey officer.
CERVANTES: Hey dude.
DEFENDANT: Yeah.
***
(Video ends.)”
¶ 21 After the video ended, the State rested. The DVD, among other items, was admitted into
evidence.
¶ 22 Testifying in his defense, defendant admitted that he was convicted of armed robbery in
2008 and further stated as follows. On June 11, 2013, defendant, Davila, Cervantes, and
Diosdado went to Lake Michigan and then to defendant’s house. The group drank and had a
cookout in defendant’s backyard. Sometime after midnight on June 12, Cervantes became very
intoxicated and passed out. Meanwhile, Diosdado asked defendant for cocaine. Defendant did
not know where to get cocaine, but Davila did and he made some phone calls. Eventually, the
group left in Diosdado’s car, with Diosdado driving and Davila directing her to the purchase
location. When the group arrived at 60th Street and Homan Avenue, Davila told defendant to
go and that the seller would come up a gangway. Davila also gave defendant a gun, which
defendant put in his waistband and then walked toward the sidewalk, where he saw a black
man, later known to be Cage. Thinking Cage was the seller, defendant approached him. Cage
said, “What up, Folks?” Because defendant was a Latin King and opposed to the Folks
alliance, he replied, “I ain’t no m***f*** Folks.” After Cage asked, “Then what the f*** you
doing in my hood, b***?”, defendant responded that he was there to meet somebody. Cage
said, “You better take your a*** home before I take all your s*** and smoke your a***,”
which defendant understood to mean a threat to rob and kill him. Cage smacked defendant on
the left side of the head with an open hand. Defendant stepped back, and Cage came at
defendant with his fists balled up. Defendant guarded his face with his arm, took out the gun,
and fired “back to back to back.” Cage fell and defendant ran to the car, where he returned the
gun to Davila.
¶ 23 Defendant explained that he fired the gun because he was scared for his life due to Cage’s
threats and subsequent attack. Defendant stated that at the time, he was 5 feet, 5 inches,
weighed around 135 pounds, and Cage was “big *** bigger than me.” Defendant denied
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having any interaction with anyone inside a van and did not recall seeing a van at 60th Street
and Homan Avenue.
¶ 24 Defendant also testified about his video-recorded conversation with Cervantes at the police
station. Defendant stated that certain parts of the conversation were in Spanish street slang that
was translated incorrectly. In the video, defendant used the slang word “plomie,” which meant
“I shot him” but was translated as “filled him up with lead.” Also translated incorrectly was the
phrase, “I let him have it four or five times.” When defendant told Cervantes he did a “f***
job,” it should have been translated as defendant saying that he shot somebody. “I let him have
it, dude,” should also have been translated as, “I shot somebody.” Defendant did not recall
saying, “I let him have it like four or five dude, hey dude.”
¶ 25 In closing, the State asserted in part that defendant’s testimony was contradicted by the
evidence. The State noted that neither Santiago, Glassco, nor Diosdado saw Cage slap, hit, or
threaten defendant. The State also contended:
“And that video that you saw of him in the lock-up. He wasn’t telling his friend ‘I shot
him. I shot him. He was coming at me. I was scared. I had to do it.’ Did you hear that up
there? No. He was saying, ‘we had a f*** job, Dude. I did. I filled a guy with lead, close
range. When I tried to fill him up with lead again, I didn’t have anymore, Dude. I let
him have it, four or five, Dude.’ He had two years to come up with that story that you
heard on the stand.”
¶ 26 In his closing, defense counsel asserted that defendant acted in self-defense. Defense
counsel further stated that it was not necessary for the other person to “have had a gun or knife
or stick.” Defendant was in fear of Cage, who outweighed defendant by 100 pounds and was
six inches taller than him. Defense counsel also challenged Diosdado’s testimony, stating that
she did not see the interaction between defendant and Cage. Defense counsel further contended
that Diosdado was lying and Davila was in the car the entire time. Moreover, the State failed to
call Davila and Cervantes to testify. Defense counsel also stated that the jury would be given a
second degree murder instruction if it believed defendant acted unreasonably in firing the
weapon.
¶ 27 In rebuttal, the State asserted in part that missing from defendant and Cervantes’s
conversation was “[t]he whole part about self-defense, the whole part about Brandon Cage
slapping him in the head and telling him to get off his block. It’s not there because it didn’t
happen that way.”
¶ 28 After closing arguments, the court instructed the jury on first degree murder, second degree
murder, and self-defense, among other topics. The following oral instruction was given about
the DVD:
“A tape-recording has been admitted into evidence. In addition to the
tape-recording you’ve been given[4] a transcript of the tape-recording. The transcript
only represents what the transcriber believes was said on the tape, and merely serves as
an aid when you listen to the tape. The tape and not the transcript is the evidence. If you
perceive a conflict between the tape and the transcript, the tape controls.
4
The court’s written instruction to the jury stated that “you are being given” a transcript of the
recording.
- 11 -
The tape recording and transcript also include statements made by individuals other
than the defendant. Those statements are admitted to provide context for the
defendant’s statements and are not admitted for the truth of the matter asserted
therein.”
The court had earlier confirmed with the parties that the transcripts would not go back to the
jury room.
¶ 29 After deliberating, the jury found defendant guilty of first degree murder and found that
during the commission of the offense, defendant personally discharged a firearm that
proximately caused the death of another individual.
¶ 30 Defendant filed a motion for a new trial, contending in part that the court should have
granted his motion in limine to exclude Cervantes’ statements from the video. Defendant
stated that in the video, Cervantes repeatedly made statements such as, “You always take
things too far.” Defendant continued that because he raised self-defense at trial, the
reasonableness of his actions was directly at issue. Further, Cervantes’s comments on past acts
were irrelevant, inadmissible, and highly prejudicial. At the hearing on defendant’s motion, the
State asserted that Cervantes’s words added context to the conversation. The State also noted
that the jury was given a limiting instruction that Cervantes’s statements were not evidence and
instead were context for defendant’s statements or conversation. Ultimately, the court denied
the motion for a new trial. In part, the court found that Miranda v. Arizona, 384 U.S. 436(1966), and Escobedo v. Illinois, 378 U.S. 478 (1964), did not apply as Cervantes was a
co-arrestee. The court further found that “it was an admission by silence for not addressing
what the other individual was saying.”
¶ 31 After a sentencing hearing, defendant was sentenced to 51 years in prison, which included
a 25-year firearm enhancement. Defendant was given credit for 748 days in presentence
custody.
¶ 32 II. ANALYSIS
¶ 33 On appeal, defendant contends that the trial court erred by allowing into evidence certain
statements made by Cervantes in the video as tacit admissions. Defendant argues that the court
should have excluded the statement that defendant had gone “too far” and the numerous
statements about “you guys” taking things “too far.” Defendant asserts that the tacit admission
rule is flawed and at a minimum should not apply here because defendant was in police
custody when the statements were made.
¶ 34 We generally review the trial court’s admission of evidence for an abuse of discretion.
People v. Randolph, 2014 IL App (1st) 113624, ¶ 16. A court abuses its discretion “only if the
decision was arbitrary, fanciful, or unreasonable, or no reasonable person would agree with it.”
Id. However, “to the extent that admissibility of evidence requires the interpretation of a rule
and its intended scope, our review is de novo.” People v. Colon, 2018 IL App (1st) 160120,
¶ 12 (citing People v. Romanowski, 2016 IL App (1st) 142360, ¶ 21).
¶ 35 Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or
implied admission of guilt if the defendant remains silent in the face of an accusation of
criminal conduct. People v. Sneed, 274 Ill. App. 3d 287, 295 (1995). When an incriminating
statement is made in the presence and hearing of an accused and the statement is not denied,
contradicted, or objected to, both the statement and the failure to deny it are admissible at trial
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as evidence of the accused’s acquiescence in its truth. People v. Childrous, 196 Ill. App. 3d 38,
53 (1990). For the statement to be admitted, the following elements must be met: (1) the
defendant heard the accusative statement, (2) the defendant had an opportunity to reply and
remained silent, and (3) the accusation was such that the natural reaction of an innocent person
would be to deny it. People v. Goswami, 237 Ill. App. 3d 532, 536 (1992). The statement does
not need to be made in an accusatory tone as long as it is evident that the defendant “was being
painted or portrayed as a participant in illegal and prohibited activity.” People v. Miller, 128
Ill. App. 3d 574, 584 (1984). Further, “[a]cquiescence or assent may be manifested by silence
or by an evasive, equivocal, or unresponsive reply.” Childrous, 196 Ill. App. 3d at 53.
¶ 36 As defendant notes, several jurisdictions have rejected the tacit admission rule. See, e.g.,
Jarrett v. State, 453 S.E.2d 461, 463 (Ga. 1995) (witness in a criminal trial may not testify as to
declarant’s statements based on the acquiescence or silence of the accused); Ex Parte Marek,
556 So. 2d 375, 382 (Ala. 1989) (“[t]he tacit admission rule *** is hereby abolished”);
Commonwealth v. Dravecz, 227 A.2d 904, 906 (Pa. 1967) (tacit admission rule is untenable).
However, the tacit admission rule is valid in Illinois. See e.g., Colon, 2018 IL App (1st)
160120, ¶ 17; People v. Donegan, 2012 IL App (1st) 102325, ¶ 67; People v. Campbell, 332
Ill. App. 3d 721, 733 (2002); Sneed, 274 Ill. App. 3d at 295; Goswami, 237 Ill. App. 3d at 536;
Childrous, 196 Ill. App. 3d at 53; see also Ill. R. Evid. 801(d)(2)(B) (eff. Jan. 1, 2011). We may
neither “ignore an entire body of relevant case law and the principles and guidelines articulated
therein” (People v. Luedemann, 222 Ill. 2d 530, 552 (2006)) nor overrule or ignore a supreme
court rule. We decline defendant’s invitation to dispose of the tacit admission rule.
¶ 37 Still, the tacit admission rule should not have been applied here to admit Cervantes’s
statements about defendant and “you guys” taking things “too far” and defendant’s failure to
deny those statements. It has been noted that tacit admissions should be “received with
caution.” 2 Kenneth S. Broun et al., McCormick on Evidence § 262, at 305 (7th ed. 2013)
(hereinafter McCormick on Evidence). Concerns with tacit admissions include the
“ ‘inherently ambiguous nature of the inference itself’ ” (People v. Powell, 301 Ill. App. 3d
272, 278 (1998) (quoting Michael H. Graham, Cleary and Graham’s Handbook of Illinois
Evidence § 802.7, at 679-80 (6th ed. 1994))), and that silence could be “motivated by many
factors other than a sense of guilt or lack of an exculpatory story” (McCormick on Evidence
§ 262, at 306), such as “prior experience or the advice of counsel” (Powell, 301 Ill. App. 3d at
278). The tacit admission rule appears to be on particularly shaky ground when a defendant is
in police custody and knows the police can hear his conversation, as in People v. Soto, 342 Ill.
App. 3d 1005 (2003). In Soto, the court considered the admissibility of statements made by the
defendant and a co-arrestee while they were in separate cells at a police station. Id. at 1010-11.
An officer told the defendant and the co-arrestee that she could hear what they were saying
when she was not in the room and their conversations were being monitored. Id. at 1011. Also,
it could be inferred that the defendant believed the police could hear his conversation because
he and his co-arrestee were shouting across the cell area and one of the men stated “ ‘they’ ”
could hear what was being said. Id. at 1013. The court found that the defendant’s reactions to
the co-arrestee’s statements were not tacit admissions because the defendant “did not have an
unencumbered choice to speak up and deny the statements,” as he was under arrest and in
police custody. Id. Under the “unique” circumstances, it could not “reasonably be expected
that [the] defendant would feel free to respond” to his co-arrestee’s comments. Id.
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¶ 38 The many similarities of this case with the circumstances in Soto persuade this court that
the statements by Cervantes that defendant and “you guys” take things “too far” and
defendant’s failure to deny those statements should not have qualified as tacit admissions. Like
the defendant in Soto, defendant here was under arrest and in a room at a police station.
Further, defendant knew that an officer could hear him because he called for an officer
multiple times while he spoke with Cervantes. Indeed, one of the times when Cervantes told
defendant “you guys take things to [sic] far,” happened when defendant was escorted by an
officer out of the room so he could use the bathroom. “[T]he fact that the police are present
when an accusatory statement is made may constitute a critical circumstance that eliminates
the naturalness of a response.” McCormick on Evidence § 262, at 308. And, many arrested
people know, even without Miranda warnings, “that silence is usually golden.” United States
v. Flecha, 539 F.2d 874, 877 (2d Cir. 1976). As in Soto, we cannot find that defendant here had
an “unencumbered choice to speak up and deny the statements.” Soto, 342 Ill. App. 3d at 1013.
¶ 39 The State asserts that defendant’s “freewheeling and profane” conversation dispels any
concern that he was restrained from speaking. Yet, we cannot determine the exact nature of
defendant’s comments where the accuracy of the translation was disputed. Further, that
defendant perhaps felt comfortable volunteering certain information does not necessarily mean
that he felt comfortable responding to all of Cervantes’s statements. We emphasize that our
conclusion is limited to Cervantes’s statements about defendant and “you guys” taking things
“too far.” Defendant does not argue on appeal that other statements he made in the recording
should be excluded. We find that defendant’s surroundings militate against applying the tacit
admission rule to the specified statements made by Cervantes and defendant’s failure to deny
them. See id. at 1014 (statements and the defendant’s reactions thereto did not qualify as tacit
admissions).
¶ 40 The next question is whether the error in admitting defendant’s reactions is reversible.
Defendant states that the prosecutor relied on defendant’s silence in closing argument.
Defendant further contends that a limiting instruction about Cervantes’s statements serving as
context was only given at the end of trial and not when the video was first played. According to
defendant, the belated instruction was insufficient to divest the jury of the damaging effect of
Cervantes’s statements. Defendant also argues that his credibility was crucial where he
testified in his defense and the cumulative effect of Cervantes’s accusations was to cause the
jury to disbelieve defendant’s self-defense testimony.
¶ 41 Defendant mischaracterizes the State’s closing argument. The prosecutor did not
specifically mention defendant’s silence in the face of Cervantes’s statements that defendant
went “too far.” Rather, the prosecutor asserted that defendant did not mention to Cervantes at
all that he acted in self-defense, stating that in the video, defendant “wasn’t telling his friend ‘I
shot him. I shot him. He was coming at me. I was scared. I had to do it.’ Did you hear that up
there? No.” A similar comment was made in the State’s rebuttal. The prosecutor mentioned
defendant’s silence as a general matter but did not highlight or rely on Cervantes’s statements
and defendant’s reactions to them. Thus, the State’s closing argument did not exacerbate the
error in admitting Cervantes’s statements. But see People v. Jura, 352 Ill. App. 3d 1080,
1090-91 (2004) (error in repeating hearsay description of suspect was exacerbated by the State
explicitly reminding the jury in closing argument that the defendant matched the inadmissible
hearsay description).
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¶ 42 As for the limiting instruction, it was not perfectly given. Before the video was played at
trial, the court told the jury that a provided transcript was not evidence and the only evidence
was the video. No mention was made of how to consider Cervantes’s statements until the end
of trial, when the court instructed the jury that statements made by people other than defendant
“are admitted to provide context for the defendant’s statements and are not admitted for the
truth of the matter asserted therein.” The instruction was a modified version of Illinois Pattern
Jury Instructions, Criminal, No. 3.20, in which the committee note states that “[t]he instruction
should be given during the trial when a tape-recording or other form of recording is admitted.”
Illinois Pattern Jury Instructions, Criminal, No. 3.20, Committee Note (approved Oct. 17,
2014). The additional, modified portion about Cervantes’s statements providing context was
not given until after the jury had seen the video.
¶ 43 Even still, the imperfect limiting instruction does not require that we reverse.
“Inadmissible hearsay does not require reversal where there is no reasonable probability the
jury would have found the defendant not guilty had the hearsay been excluded.” People v.
Ochoa, 2017 IL App (1st) 140204, ¶ 58 (engaging in harmless error analysis even though trial
court did not provide a limiting instruction for improper hearsay evidence). We ask whether
there is a reasonable probability that the jury would have acquitted defendant without
Cervantes’s statements that defendant or his associates went “too far.” See In re Jovan A.,
2014 IL App (1st) 103835, ¶ 37 (when examining whether admission of hearsay was harmless,
reviewing courts ask whether there is a reasonable probability that trier of fact would have
acquitted the defendant if the hearsay had been excluded).
¶ 44 We conclude that there is no reasonable probability that the jury would have acquitted
defendant if Cervantes’s statements had been excluded. The State’s witnesses provided a
consistent version of the incident. Santiago testified that defendant approached the van and
asked about Santiago’s gang affiliation. Santiago then observed Cage encounter defendant,
who asked about Cage’s gang affiliation and then shot him three times. Santiago did not
observe Cage make any physical contact with defendant and stated that Cage was not close
enough to hit defendant if he tried. Glassco testified that a man on the driver’s side of the van
asked for Santiago’s gang affiliation and then encountered Cage. After the man and Cage
exchanged words about Cage’s gang affiliation, the man shot Cage. Glassco could not identify
the shooter, but she described the same series of events as Santiago. The State also presented
the testimony of Diosdado, who was in defendant’s car and whose account matched that of
Santiago and Glassco. Diosdado testified that defendant approached a car and checked for the
occupants’ gang affiliations. Diosdado further stated that afterwards, defendant spoke to Cage
about gang affiliations, whereupon she heard three or four shots. Diosdado stated that she did
not see the interaction between defendant and Cage, but her version still supports the State’s
narrative. The State’s evidence was overwhelming. Thus, the error in admitting Cervantes’s
statements was harmless. See People v. Williams, 228 Ill. App. 3d 981, 995 (1992) (error is
harmless where there is overwhelming evidence from which jury could reasonably conclude
that the defendant is guilty beyond a reasonable doubt).
¶ 45 Lastly, defendant contends, and the State concedes, that he is entitled to 749 days of
presentence custody credit. Initially, the trial court gave defendant credit for 748 days. Under
Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), we may correct the mittimus without
remanding the case to the trial court. People v. Pryor, 372 Ill. App. 3d 422, 438 (2007). Thus,
the mittimus shall be corrected to reflect that defendant is entitled to 749 days of presentence
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custody credit.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, the judgment is affirmed and the mittimus corrected.
¶ 48 Affirmed; mittimus corrected.
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