People v. Rodriguez

2022 IL App (1st) 181293-USECOND DIVISION
June 14, 2022
No. 1-18-1293
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 10 CR 22162
)
NORBERTO RODRIGUEZ, ) The Honorable
) Luciano Panici,
Defendant-Appellant. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court.
Justices Lavin and Cobbs concurred in the judgment.
ORDER
HELD: Defendant’s convictions affirmed where the evidence, though primarily
circumstantial, was sufficient to prove him guilty beyond a reasonable doubt; the trial
court did not err by allowing evidence of a prior incident between defendant and the
victim and of information related to the victim’s funeral; the trial court did not err in
allowing evidence from defendant’s credit report; the State’s closing argument did not
deny defendant a fair trial; a Frye hearing was not required for the admission of historical
cell site analysis testimony; and there was no cumulative error warranting reversal and
remand.
No. 1-18-1293
¶1 Following a jury trial, defendant-appellant Norberto Rodriguez (defendant) was
convicted of first-degree murder and concealment of a homicidal death. He was sentenced to
60 years for the murder convictions and 5 years for the concealment conviction, to run
consecutively, for a total of 65 years in prison. He appeals, presenting six contentions for our
review: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2)
the trial court erroneously allowed inflammatory and prejudicial evidence to demonstrate that
he had poor character; (3) the trial court erroneously allowed inadmissible hearsay evidence
in the form a his credit report; (4) he was denied a fair trial as a result of the State’s improper
remarks during closing argument; (5) the trial court erred in allowing historical cell site
analysis evidence without first conducting a Frye hearing; and (6) all these errors resulted in
cumulative error. He asks that we reverse his conviction outright, or, alternatively, that we
reverse and remand for a new trial, or, again alternatively, that we retain jurisdiction and
remand for a Frye hearing on the general acceptance of historical cell site analysis. For the
following reasons, we affirm.
¶2 BACKGROUND
¶3 Defendant was charged in connection with the murder of his wife, Irma Rodriguez, after
her children reported her missing on the evening of May 31, 2009. The next day, police
found Irma’s body in the trunk of her car at 148th Street and Kilpatrick Avenue in
Midlothian, three miles from the family home. There was a bullet hole in her shirt and blood
visible on the back of her head, as well as blood stains on the trunk’s carpet; she had been
shot in the back and head. Her manner of death was homicide. Defendant was arrested in
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No. 1-18-1293
November 2010 at which time he was approximately six feet tall and weighed about 200
pounds.
¶4 Prior to trial, in anticipation of the admission into evidence of certain historical cell site
analysis and testimony, defendant filed multiple motions. One was a motion in limine
precluding the State from introducing evidence that on the night of Irma’s disappearance,
defendant’s cell phone “ping[ed]” off a cell tower located near where her body was found,
arguing that this would unfairly prejudice him. The trial court denied the motion. Another of
defendant’s pretrial motions in this regard sought a Frye hearing on the admissibility of
expert testimony, to be provided by FBI special agent Joseph Raschke, regarding the
historical cell site analysis he performed in this case. Defendant argued such analysis was
not generally accepted in the relevant scientific community and pointed to a federal court
case where agent Raschke’s methodology had been found to be unreliable. The trial court
denied this motion as well and declined to hold a Frye hearing, stating that the federal case
was inapplicable due to the differing standards between federal and Illinois state law
regarding the reliability and admissibility of evidence. The court further commented it had
recently presided over a triple murder case “where the same issue was brought up, and [the
same motion] was denied.” The trial court declared that the proposed evidence is “an
accepted scientific theory in the community; and, therefore, there need not be any Frye
hearing to determine whether or not, because it’s not novel, to determine whether or not it’s
admissible.”
¶5 At trial, Monica Medina, Irma’s daughter, testified that Irma married defendant when she
(Monica) was very young. They lived together, along with defendant and Irma’s son Gabriel
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No. 1-18-1293
(Monica’s step-brother), in the family home in Oak Forest. In 2008, Monica, Irma and
Gabriel moved out and lived with Irma’s eldest son (Monica’s brother), Martin Medina, Jr.,
in his apartment, as Irma separated from defendant. However, by early 2009, they moved
back in with defendant and defendant’s mother, Carmen (who was mentally disabled and
could not be left alone), at the Oak Forest home. According to Monica, Irma and defendant
fought almost every other day and there was much tension in the house, centered on
defendant’s concern that Irma would leave him. Monica testified that on the morning of May
31, 2009, Irma took Gabriel and her to church, out to lunch, and then dropped Monica off at
Monica’s boyfriend’s house. Monica returned home at approximately 8:10 p.m. She entered
through the garage by using a keypad and then through the service door inside the garage
leading into the home. She knew Irma drove a white Pontiac Grand Am with the
personalized license plate TITA 6. That car was not in the garage when she returned home.
However, Carmen’s red Kia, which defendant drove, was in the garage. Monica went
straight downstairs to study for her exams.
¶6 Monica testified that soon thereafter, she received a cell phone call from Gabriel asking
her to open the service door. When she opened the door, Gabriel was standing in the garage
holding Irma’s purse, which Irma had been carrying that day; he asked Monica why Irma’s
purse was on the floor in the garage. They looked around and saw that Irma’s sandals were
also on the garage floor. At this point, Monica and Gabriel walked through the house. There
were no broken windows or doors. However, they noticed that there was no one home
except Carmen, who was alone and asleep in her room, and there was food on the stove in the
kitchen. Monica and Gabriel each used their cell phones to call Irma’s cell phone multiple
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No. 1-18-1293
times, but Irma did not answer and their calls went straight to her voicemail. Monica also
called John Avolio, whom she knew was Irma’s boyfriend, and then she called her own
boyfriend with whom she had been earlier that day.
¶7 Monica further testified that about 45 minutes later, she saw defendant approaching the
house. She and Gabriel locked the front glass storm door so defendant could not enter, but
left the wooden door open so they could see him. They asked defendant where Irma was,
and he responded that he did not know. They then asked him where he had been, and he
responded that he had gone for a walk. Monica stated that in all the time she has known
defendant, she has never known him to go for a walk. Monica averred that her boyfriend
then arrived, whereupon she opened the door and pushed past defendant to get to her
boyfriend’s car. Gabriel followed, and they discussed the situation with Monica’s boyfriend.
While they were talking, defendant went over to the group and told them they should go to
Irma’s friend’s house to see if she was there. Monica’s boyfriend drove her and Gabriel to
the general area where Monica remembered Irma’s friend lived, but Monica did not know the
exact address. They did not see Irma or her car in that area, and they continued
unsuccessfully to reach Irma on her cell phone until they eventually returned home.
¶8 Finally, Monica testified briefly with respect to an incident that happened on October 17,
1997, when she was very young and living with Irma, defendant and Gabriel, who was a
baby, in a home in Chicago. Monica recalled that Irma and defendant were in their bedroom
with the door closed, arguing. The fighting escalated, whereupon Monica heard a loud noise
and saw her mother run out of the bedroom and out the front door. Moments later, defendant
came out of the bedroom and asked Monica which way Irma went. Audio of two 9-1-1 calls
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No. 1-18-1293
made on that date were published to the jury. Monica identified the voices on the calls as
belonging to Irma and defendant. Monica averred that Irma can be heard stating that
defendant, her husband, is a Chicago police officer and that he should go get the gun; Monica
also averred that defendant can be heard saying, presumably to Irma, that she (Irma) is
bleeding. Monica agreed that defendant was a Chicago police officer at that time, but he was
no longer one after that incident. Monica did not know the circumstances of the argument
and did not see the argument itself. Following police intervention and investigation, it was
discovered that during that incident, defendant had shot Irma in the hand.
¶9 Gabriel corroborated much of Monica’s testimony. He stated that when he, Monica and
Irma moved back in with defendant in January 2009 after his parents’ year-long separation,
everything seemed normal at first, but soon defendant and Irma returned to their pattern of
repeatedly arguing; they did not sleep in the same room and they did not do anything as a
couple. On May 31, 2009, Irma took Monica and him to church, to lunch, and then dropped
Monica off at her boyfriend’s house. Irma and Gabriel eventually returned home, and
defendant was there. At about 4:00 p.m., Gabriel asked Irma if she could drive him to his
friend’s residence near 147th Street and Kilpatrick Avenue in Midlothian, which she did.
Gabriel averred that defendant was coming in and out of the garage at the time of this
conversation, while he and Irma were in the house; Gabriel also averred that defendant knew
where his friend lived, as defendant had driven Gabriel there before.
¶ 10 Gabriel testified that, as Irma was getting ready to drive him, defendant and Carmen left
the house in Carmen’s red Kia. Later that evening, a friend dropped Gabriel off at home
around 8:15 p.m. and Gabriel used the keypad to open the garage door. The only car in the
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No. 1-18-1293
garage was the red Kia. As he approached the service door, he noticed Irma’s purse next to
the door, along with her sandals. He picked up the purse and, when he found the service
door locked, he called Monica to let him in. He and Monica then looked through the house;
almost all the lights were off, but there was prepared food on the stove, Carmen was home
alone, and no one else was there. Gabriel found these things to be unusual, as the house rule
was Carmen was never to be left alone due to her mental illness, and Irma never left food out
on the stove. Gabriel called Irma’s cell phone numerous times; it would ring and eventually
just went to voicemail. He also called defendant’s cell phone; it went straight to voicemail.
¶ 11 Gabriel further testified that at about 9:15 p.m., he saw defendant approaching the house,
walking up the driveway to the front door. Gabriel immediately locked the glass storm door
but left the wooden door open so he could see defendant. As Monica joined him by the door,
Gabriel repeatedly asked defendant where Irma was, and defendant, after looking around,
responded that he did not know and that he had been out on a walk at the park. Gabriel
averred that in his whole life, he had never known defendant to go for a walk. Monica’s
boyfriend then arrived and Monica opened the door to meet him. Gabriel continued to
question defendant, who went into the garage, grabbed Irma’s sandals and took them inside.
Gabriel went to speak with Monica and her boyfriend in the driveway, whereupon defendant
came back outside and told the group they should go check for Irma at her friend’s house.
The group did so, but did not see Irma or her car anywhere in the area. They returned home
and Gabriel went inside; Gabriel noted that defendant was in the shower. Gabriel further
testified that he found his backpack, which he had been keeping in the trunk of Irma’s car
that day, now in the basement of the house behind some couches.
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No. 1-18-1293
¶ 12 Officer Hoffman1 testified briefly with respect to the October 17, 1997 incident. On that
date, he and his fellow officers responded to a domestic violence call involving Irma and
defendant at their home in Chicago. When officer Hoffman arrived, he saw defendant on the
sidewalk coming from a yard between some houses. He had blood on his hands and he was
holding a bloody gun. Officer Hoffman told defendant he was under arrest, whereupon
defendant informed officer Hoffman that he was a Chicago police officer. Despite some
resistance on defendant’s part, officer Hoffman took defendant into custody.
¶ 13 Carmen Halim, Irma’s sister, testified with respect to Irma’s relationship with defendant.
She stated that after the October 17, 1997 incident, Irma decided not to follow through with
the prosecution against defendant.2 She also stated that while defendant had been a Chicago
police officer, he was no longer employed as such after the incident. Halim often spoke to
Irma when Irma had arguments with defendant, and she last saw Irma about a week before
her disappearance, at which time Irma told her she was excited because she was going to
move out of the Oak Forest home. Halim further testified, upon defendant’s objection, that
she, her other sister and their mother planned Irma’s funeral, and defendant did not help with
the planning of, pay for, or attend Irma’s funeral.
¶ 14 Martin Medina, Jr., Irma’s eldest son, testified that he did not live with Irma and
defendant in 2009. However, on May 31, he had a conversation with Irma on her cell phone
at about 6:30 p.m. It lasted about eight minutes, and that was the last time he spoke to her.
1
Officer Hoffman’s first name is not included in the record.
2
The record shows that the State charged defendant in connection with the October 17, 1997 incident and that he
was eventually acquitted.
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No. 1-18-1293
¶ 15 John Avolio testified that he met Irma in 2005 at the hospital where they worked, and by
2007, they began an intimate relationship. Irma told him she was getting a divorce. He
described that one day in 2008, Irma waited for defendant to go to work and she packed her
things and moved into an apartment with her children, where she stayed for about a year.
John testified that he and Irma eventually ended their relationship when she wanted them to
move in together but he did not. They began speaking again in early 2009, and Irma told
Avolio that she had moved back in with defendant at the Oak Forest home. Soon thereafter,
Avolio and Irma renewed their intimate relationship. He testified that a week before her
disappearance, Irma went to his home and gave him $4,000, which she owed him. He and
Irma had made plans to buy a house together once Irma divorced defendant; they had hired a
realtor and found a house, and Avolio told Irma he would put the money she gave him
toward the purchase. Avolio further testified that on the afternoon of May 31, 2009, he was
at the gym. At about 3:00 p.m., he was walking to his car to leave when he saw Irma
walking from her car and approaching him; they had not planned to meet. Avolio averred
that Irma was in a very good mood and they planned to meet at 1:00 a.m. the next morning,
after his late shift at the hospital. He did not see Irma again. Later that evening while he was
working, 3 he received a call from Monica asking if Irma was with him. Avolio stated that
neither he nor Irma ever hid their relationship, and he never met defendant in person.
¶ 16 Carmen Quinones, an attorney specializing in family law and divorce, testified that Irma
became her client in 2007, when Quinones filed a petition on her behalf to divorce defendant.
3
Stipulated testimony from Avolio’s emergency room department supervisor and hospital surveillance video
presented at trial established that Avolio’s shift was from 4:00 p m. on May 31, 2009 to 12:30 a m. on June 1, 2009,
and that he was present and accounted for during that entire time.
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No. 1-18-1293
As defendant chose to represent himself, Quinones met with him and Irma after he was
served to attempt settlement. This did not occur. Eventually, Irma asked Quinones to put the
divorce on hold. Quinones testified that she then met with Irma on May 27, 2009, a few days
before her disappearance. Quinones averred that Irma expressed her desire to renew the
divorce proceedings and, a couple days after their meeting, Quinones returned to court for
her in order to do so. She did not speak to Irma after their meeting.
¶ 17 Officer Daren Lorek testified that on May 31, 2009, he responded to a call at the Oak
Forest home from Monica and Gabriel, who reported Irma as a missing person. When he
arrived, he saw defendant standing alone outside the home smoking a cigarette. After he
relayed to defendant Monica and Gabriel’s report, defendant told officer Lorek he was
concerned about Irma’s whereabouts as well, as it was unusual for her not to be home at this
time in the evening. Officer Lorek stated that, when he asked defendant where he had been,
defendant told him he had taken his mother shopping in Chicago at 3:30 p.m. and returned
home at 7:30 p.m., whereupon he noticed that neither Irma nor her car were at the house, but
her purse was inside the house. Defendant also told officer Lorek he called Irma’s cell phone
numerous times but she did not answer. Defendant then recounted that after he arrived
home, he went for a walk because he had gotten into an argument with Carmen and, though
he admitted he was having marital problems with Irma, he stated that these were related to
Carmen living with them. Officer Lorek further testified that defendant allowed him to enter
the home. Officer Lorek observed it to be orderly, with no signs of wrongdoing; he saw
Irma’s purse and took it into evidence.
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No. 1-18-1293
¶ 18 Sergeant John Daley testified that he was assigned to look for Irma’s white Grand Am.
The car was found on June 1, 2009 on Kilpatrick Avenue between 147th and 148th Streets in
Midlothian, just south of Gabriel’s friend’s home, parked on the street in front of a fence line
near apartment buildings. Sergeant Daley testified that the keys, which had been found in a
different location, were brought to the scene. Police opened the trunk, revealing a body that
was later identified as Irma.
¶ 19 Police detective Richard Belcher testified that on June 1, 2009, he was assisting in Irma’s
missing person investigation. At the outset, he learned she was married to defendant and that
both of them had cell phones, so he executed an exigent circumstances request to their
providers for incoming and outgoing calls and cell tower locations. Soon, Irma’s car was
discovered with her body in the trunk; detective Belcher did not observe any indication that
the car had been stolen and noted that it was only three miles from the Oak Forest home.
Bank records were also obtained from Bank of America regarding multiple accounts shared
by Irma and Carmen. Detective Belcher averred that, upon his examination, he saw almost
weekly withdrawals from one account in increments between $300 and $500 from different
ATMs. In conjunction with video surveillance, he noted that on May 31, 2009, a withdrawal
was made from someone in a small maroon car, which detective Belcher stated appeared to
be a Kia, at 5:52 p.m. from an ATM in Berwyn. 4
¶ 20 Detective Belcher further testified that he examined the contents of Irma’s purse
recovered by officer Lorek and found two newspaper articles dated October 19, 1997 about
defendant and Irma’s prior shooting incident, a receipt from Burlington Coat Factory dated
4
The video surveillance footage of the transaction was played in court during detective Belcher’s testimony;
however, he admitted that it did not clearly show the model of the maroon car, its license plate, or its occupant(s).
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No. 1-18-1293
May 31, 2009, and an ATM receipt also dated May 31, 2009, showing a $40 withdrawal. He
noted that this ATM receipt had a different account number than the debit card transaction at
the Berwyn ATM that occurred on the same day. Detective Belcher examined the purse
again later and found a Bank of America ATM card inside with Irma’s name on it. He stated
that, upon further investigation, he discovered two electronic withdrawals made from that
account, one in the amount of $1,000 and another in the amount of $3,000 ($4,000 total),
both conducted on May 26, 2009 within a minute of each other at the Berwyn ATM location.
Detective Belcher further testified that he drove the route from the Berwyn ATM to the Oak
Forest home twice as part of his investigation, both times on a Sunday 5 beginning at 5:52
p.m., and the trip took him between 38 and 40 minutes.
¶ 21 Michael Scanlon testified that on May 31, 2009, he was at his home on Kostner Avenue
in Midlothian. At about 7:00 p.m., he was watching television while sitting in a chair next to
his picture window when he noticed a car pull up and park on the street in front of his home.
Scanlon stated that he saw a man get out, walk around to the trunk of the car, stare at it for a
moment, reach over and touch or rub/wipe it, then reenter the car and drive away. Scanlon
testified that the car was a white Pontiac Grand Am or Trans Am, and it was not one
common to the neighborhood; he did not notice the car’s license plate. He described the man
as tall, thin and Hispanic. Some days later, when he heard and saw news reports of Irma’s
missing car, which was found only two blocks west of his home, he recognized it as the car
he had seen the day she disappeared and he called police.
5
May 31, 2009, the day of Irma’s death, was a Sunday.
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No. 1-18-1293
¶ 22 Additional police officers, a crime scene investigator, an assistant medical examiner, and
various forensic personnel testified to the following. Briefly, in addition to the blood in
Irma’s hair, blood stains on her body and in the carpet of the trunk, and the bullet hole in her
shirt, there was a blood-like stain on the car’s bumper with a single hair in it. Inside the
garage at the family home in Oak Forest, a clump of human hair was found on the cement
floor, accompanied by blood stains and bullet fragments; there were also little blood stains in
two other areas on the garage floor. Irma’s body had two bullet holes and two graze wounds;
two bullets were recovered from her body. It was determined that these two bullets and the
bullet fragments recovered from the garage floor were fired from the same firearm.
¶ 23 Following a hearsay objection raised by defendant regarding the admissibility of credit
reports obtained from TransUnion, and the trial court’s overruling of that objection, Richard
Orlowski, a senior consultant of litigation from TransUnion, testified with respect to
defendant’s credit report prepared on December 23, 2009. While detailing the multi-page
report, Orlowski identified several accounts belonging to defendant showing they were in
collections status, a tax lien, and a Chapter 7 bankruptcy. He also identified other accounts
in the report, some of which were in good standing, others which were not in good standing,
and others that had been closed, paid or reported stolen. Orlowski admitted that TransUnion
does not create records such as these but only collects information from other companies, and
he could not ensure that those companies reported information correctly.
¶ 24 Roxanne Hollingsworth, a court appearance operations analyst for Bank of America,
testified with respect to the bank’s record-keeping of checking and savings accounts, as well
as the recording of ATM transactions on customer accounts. She then testified specifically
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No. 1-18-1293
about records related to multiple Bank of America accounts held jointly by Irma and Carmen.
Hollingsworth noted that in one account, a money market, there was a balance of $12,899.91
in January 2009, but by May 20, 2009, the balance was $5,504.34. She also noted that on
May 26, 2009, there were two transactions: a withdrawal from a savings account in the
amount of $1,000, and a transfer from that account into a checking account in the amount of
$3,000. She further confirmed a withdrawal at 5:52 p.m. on May 31, 2009 in the amount of
$500 from an ATM in Berwyn. Hollingsworth averred that the records of the withdrawals do
not specify who made them.
¶ 25 Ricardo Leal, a records custodian and subpoena analyst for Sprint Telecommunications
Corporation, testified that pursuant to subpoena, subscriber information and a 2009 cell tower
site location list for defendant’s cell phone were prepared, noting that these provided records
of calls made to and from defendant’s cell phone and identified the location of the towers that
were utilized for those calls; Leal testified only with respect to defendant’s call records. He
identified several calls from May 31, 2009: outgoing calls at 12:07 p.m., 1:58 p.m., 5:12
p.m., and 11:43 p.m., along with a call made at 7:55 a.m. on June 1; an incoming call at 8:29
p.m. that went to voicemail; and a direct connection that took place at 6:49 p.m. and lasted
10.5 seconds. Admittedly, the records could not identify who was using the phone at those
times. Solangia Haddock, a subpoena specialist from U.S. Cellular, similarly testified that
pursuant to subpoena, subscriber information and a 2009 cell tower site location list for
Irma’s cell phone were prepared. With respect to calls made to and from Irma’s phone on
May 31, 2009, she identified an outgoing call at 10:56 a.m.; incoming calls at 12:06 p.m.,
12:13 p.m., 12:35 p.m., and 12:44 p.m.; outgoing calls at 12:54 p.m., 12:57 p.m., and 6:02
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No. 1-18-1293
p.m.; an incoming call at 6:30 p.m.; several short-duration incoming calls around 8:30-9:30
p.m. consistent with going to voicemail; and several other short calls from 11:00 p.m. to
midnight. She also identified an incoming call on June 1, 2009 at 7:54 a.m.
¶ 26 Upon defendant’s objection, and consistent with the trial court’s pretrial rulings, FBI
special agent Raschke, assigned to the bureau’s Cellular Analysis Survey Team, was
qualified and testified as an expert in the field of historical cell site analysis. He explained
that he performed a historical cell site analysis with respect to Irma’s and defendant’s cell
phone numbers, based on call records and 2009 cell tower site location lists from Sprint and
U.S. Cellular. He described that his analysis of this information would show simply in what
general area these cell phones would have been at a particular time in relation to certain cell
towers.
¶ 27 First, agent Raschke testified generally with respect to how cellular networks function
and the records that are generated. Briefly, he explained that when a cell phone makes or
receives a call, the phone “communicates with a cell tower” that has “radio frequency
transmitters and receivers,” which are just pieces of equipment that connect to the actual
cellular network, enabling the phone to work. When a cell phone is on, it is scanning the
radio frequency environment, measuring signals from cell towers (and even different sides of
these towers), located in several surrounding areas to “always use the strongest, clearest
signal” it is receiving, as cell phones are programmed to do to ensure the best call quality.
According to agent Raschke, the strongest, clearest signal “generally comes from the tower
that the phone is closest to.” He then clearly reiterated that his analysis would not be able to
pinpoint a phone’s exact location or specific address at the time of use, but would only be
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No. 1-18-1293
able to show that a phone “was in the general area covered by” a certain tower at a particular
time.
¶ 28 Next, agent Raschke testified specifically with respect to his analysis of Irma’s and
defendant’s cell phones for May 31 to June 1, 2009. As to Irma’s phone, agent Raschke
noted that it used a cell site at 5:12 p.m. and 6:30 p.m. that was less than a half mile from the
Oak Forest home. As to defendant’s phone, agent Raschke noted that at 1:58 p.m., it used a
cell tower near the Oak Forest home; at 4:50 p.m., it used a tower located at I-55 and Kedzie
Avenue near Chicago; at 5:12 p.m., it used a tower on North Avenue west of Kedzie Avenue
on the north side of Chicago; and at 6:49 p.m., it used a tower less than a mile west of the
Oak Forest home. The 8:29 p.m. call to defendant’s phone that went to voicemail used a
tower consistent with being east or northeast of the Oak Forest home, consistent with the
direction where Irma’s car was found from the home, and inconsistent with the direction of
the home itself, which was west. And, there were multiple calls between 9:46 p.m. and 11:28
p.m. which used a cell tower consistent with the location of the Oak Forest home. Agent
Raschke also noted that there were some attempted incoming calls made to Irma’s cell phone
after 6:30 p.m. with no cell site listing, which he explained indicated that her phone was off-
network, meaning it could have been powered off, the battery died, it was broken or there
was simply no signal.
¶ 29 Agent Raschke concluded his testimony by further explaining, again, that his analysis
only showed the tower or tower sector used by Irma’s and defendants’ cell phones at certain
times, and he could not say that a particular cell phone was at an exact address at those times.
He also noted for the jury that, while cell phones will always use the strongest, clearest
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No. 1-18-1293
signal, and while the general rule is that this usually comes from the tower that the phone is
closest to, there are some exceptions. For example, he described instances in which the
closest cell tower to a phone may become overloaded or is not operating properly; the phone
may then seek a signal from a different, unobstructed tower nearby. Agent Raschke averred
he did not check the 2009 maintenance records for the towers at issue, and he did not check
the area for any obstructions to those cell towers.
¶ 30 Following closing argument,6 the jury found defendant guilty of first-degree murder and
concealment of a homicidal death, and that he personally discharged a firearm that
proximately caused death to another. He was sentenced consecutively, for a total of 65 years
in prison.
¶ 31 ANALYSIS
¶ 32 Defendant presents six contentions for review. We address each separately.
¶ 33 I. Sufficiency of the Evidence
¶ 34 Defendant’s first contention is that the evidence presented against him at trial was
insufficient to prove him guilty beyond a reasonable doubt, warranting the outright reversal
of his conviction. Citing a lack of direct evidence, including eyewitnesses or forensic
evidence, the inability of cell phone evidence to specifically place him in a particular location
at a particular time, and that the state of his marriage and finances did not actually suggest a
motive, he insists that the State presented, at best, a “weak circumstantial case[] which
merely established that [he] might be guilty,” and, accordingly, this “did not permit the jury
6
The propriety of several comments made by the State during closing argument form the basis of one of defendant’s
contentions on appeal. Due to the length of closing arguments and the variety of topics they addressed, we chose
not to present those individual comments here. Rather, we will do so in more detail below when we address the
issue surrounding their propriety.
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No. 1-18-1293
to rationally conclude that there was no reasonable doubt as to his guilt.” Based on our
review of the record, we disagree.
¶ 35 At the outset, we note that defendant devotes a good portion of his brief asserting that
Jackson v. Virginia, 443 U.S. 307 (1979), requires de novo review of his contention since it
amounts to “a question of law, not fact.” This most certainly is not the case here. While he
couches his claim in terms of rationality and posits that this Court owes no deference to the
jury’s determination of guilt, the underlying essence of defendant’s argument is obvious: it
is, plainly and simply, a challenge to the sufficiency of the evidence used to convict him.
Contrary to defendant’s assertion, our standard of review does not change depending on the
type of evidence presented—direct, circumstantial, or whatever combination it may have
been. Rather, our standard of review is clear, and we reiterate it now as we review
defendant’s claim.
¶ 36 When a criminal defendant challenges the sufficiency of the evidence used to convict
him, the standard of review is whether, when viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See People v. Smith, 185 Ill. 2d 532, 542 (1999); People v.
Hunley, 313 Ill. App. 3d 16, 20 (2000); see also Jackson, 443 U.S. at 319. Courts of appeal
will not retry the defendant. See People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). Instead,
the jury, as the trier of fact in the instant trial, hears and sees the witnesses and, thus, has the
responsibility to adjudge their credibility, resolve any inconsistencies, determine the weight
to afford their testimony and draw reasonable inferences from all the evidence presented.
See People v. Steidl, 142 Ill. 2d 204, 226 (1991); Hunley, 313 Ill. App. 3d at 21. Ultimately,
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No. 1-18-1293
a conviction will not be overturned unless the evidence is so improbable or unsatisfactory as
to create a reasonable doubt of guilt. See People v. Maggette, 195 Ill. 2d 336, 353 (2001);
People v. Brown, 185 Ill. 2d 229, 247 (1998). “[T]his standard of review applies in all
criminal cases, whether the evidence is direct or circumstantial.” Maggette, 195 Ill. 2d at
353; see People v. Gilliam, 172 Ill. 2d 484, 515 (1996), and People v. Pintos, 133 Ill. 2d 286,
291 (1989) (stating same).
¶ 37 Defendant is correct in noting there is a difference between circumstantial and direct
evidence. However, and undoubtedly, our courts have made abundantly clear that
circumstantial evidence is, indeed, sufficient to sustain a criminal conviction; it is not any
less viable or valid. See Maggette, 195 Ill. 2d at 353; Gilliam, 172 Ill. 2d at 515. Rather, just
as with direct evidence, as long as circumstantial evidence satisfies proof beyond a
reasonable doubt of the elements of the crime charged, namely, the corpus delicti (here, the
fact of death and the fact that the death was through criminal agency) and that the crime was
committed by the person charged, it is sufficient to sustain a conviction. See People v. Hall,
194 Ill. 2d 305, 330 (2000); People v. McVay, 2019 IL App (3d) 150821, ¶ 40. Moreover, it
is also undisputed that, in circumstantial evidence cases, a jury is not required to accept any
or every possible explanation compatible with defendant’s innocence and elevate it to the
status of reasonable doubt. See People v. Cline, 2022 IL 126383, ¶ 34; accord Gilliam, 172
Ill. 2d at 515-16, citing People v. Herrett, 137 Ill. 2d 195, 206 (1990). In other words, the
jury does not need to be satisfied beyond a reasonable doubt as to each link in the chain of
circumstances but, rather, that all the circumstantial evidence, taken together, satisfies it
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No. 1-18-1293
beyond a reasonable doubt of the defendant’s guilt. See Hall, 194 Ill. 2d at 330; McVay,
2019 IL App (3d) 150821, ¶ 40; accord People v. Scott, 2020 IL App (1st) 180200, ¶ 39.
¶ 38 In the instant case, we find, based on the record before us, that the circumstantial
evidence presented was more than sufficient to prove defendant’s guilt beyond a reasonable
doubt.
¶ 39 Defendant admits in his brief on appeal that there is no question Irma died and that her
death was a homicide. This leaves, then, a burden on the State to prove defendant committed
that homicide beyond a reasonable doubt. The State’s theory of the case was that Irma, who
had a turbulent relationship with defendant for many years, finally decided to leave him and
take with her much of the couple’s funds; when defendant discovered this, he killed her in
the garage of the Oak Forest home, put her body in the trunk of her car and drove it to the last
place he knew she had been outside the home that day, Gabriel’s friend’s house near 148th
Street and Kilpatrick Avenue, whereupon he abandoned her car in an attempt to conceal the
murder. All the circumstantial evidence presented here, taken together, supported this theory
beyond a reasonable doubt.
¶ 40 The State presented repeated evidence of the tumultuous relationship between Irma and
defendant, lasting over a decade. Monica testified that during the October 17, 1997 incident,
Irma and defendant were arguing in their bedroom when there was a loud noise; Irma
immediately ran out of the room and the house, defendant followed her moments later, and
9-1-1 audio captured their voices detailing that Irma was bleeding and that defendant had a
gun. Responding officer Hoffman testified that when he arrived at the scene, defendant was
walking around outside with blood on his hands and carrying a bloody gun. Irma had been
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No. 1-18-1293
shot in the hand. Although, as her sister testified, Irma did not follow through with
defendant’s prosecution for the incident, defendant lost his job as a Chicago police officer
following it. And, even though years passed, the incident clearly remained significant to
Irma, as detective Belcher found two 1997 newspaper articles about it in the purse she was
carrying on the day of her murder.
¶ 41 Several witnesses corroborated that Irma and defendant were having marital problems at
the time of her murder. Monica stated that in 2008, Irma took her children and left the family
home in Oak Forest in order to separate from defendant; Irma eventually returned in early
2009, but she and defendant fought almost every other day and there was much tension in the
house centered on defendant’s fear that Irma would leave him. Gabriel noted the same,
testifying that after the separation, defendant and Irma returned to their pattern of repeatedly
arguing and they did not sleep in the same room or do anything together as a couple. Irma’s
sister stated that she often spoke to Irma after her fights with defendant and, the week before
she was murdered, Irma told her she would soon be moving out of the Oak Forest home.
Avolio, Irma’s boyfriend since 2007, confirmed this; he and Irma, who never hid their
relationship, had recently reunited, hired a relator, and found a house in which they planned
to live. On May 26, 2009, five days before her murder, Irma gave Avolio $4,000 which he
used for the house, as confirmed by the two bank withdrawal slips, one in the amount of
$1,000 and the other in the amount of $3,000, found in her purse. And, Irma visited
Quinones, her divorce attorney, on May 27, 2009, asking her to renew her previously filed
divorce petition against defendant, which Quinones did.
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No. 1-18-1293
¶ 42 Additional evidence, including financial information, cell phone records and forensic and
witness testimony further supported the State’s theory. First, bank records from the money
market account Irma and defendant’s mother shared showed that between January and the
end of May 2009, the balance declined from almost $13,000 to slightly over $5,000. Video
surveillance showed that at 5:52 p.m. on the day of Irma’s murder, someone in a maroon Kia
made a withdrawal from Irma and defendant’s mother’s shared account at the Berwyn ATM.
By all accounts, defendant’s mother owned a red Kia, she was mentally incapable of being
left alone, and defendant used her car. In fact, Gabriel testified that he saw defendant and
Carmen leave in the Kia that afternoon. Moreover, defendant’s own financials were in poor
condition, exhibiting a tax lien, delinquent accounts and a bankruptcy.
¶ 43 Next, cell phone evidence supported the State’s proposed timeline of the murder and
contradicted important information defendant gave to police that night. The State proposed
that Irma was murdered sometime between 6:38 p.m. after she spoke to her eldest son on the
phone and before 8:10 p.m. when Monica retuned home. Irma’s phone used a cell site at
5:12 p.m. and 6:30 p.m. that was less than a half mile from the Oak Forest home; she was
clearly at or near the house at that time. Interestingly, defendant’s cell phone records showed
he made an outgoing call from Chicago, also at 5:12 p.m. The remainder of the calls in
Irma’s log were short-duration calls to her phone after 8:30 p.m. going to voicemail; this is
consistent with Monica and Gabriel’s testimony that they called her phone several times but
only connected to Irma’s voicemail. Meanwhile, officer Lorek, who responded to Monica
and Gabriel’s missing person’s report, testified that defendant told him that he had been
concerned about Irma and called her cell phone numerous times to locate her. Yet,
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No. 1-18-1293
defendant’s cell records show he made outgoing calls at only at 11:43 p.m. that night and
7:55 a.m. the next morning. Moreover, officer Lorek testified that defendant told him he had
taken his mother shopping in Chicago that afternoon at 3:30 p.m. and did not return home
until 7:30 p.m. Cell records confirmed that defendant’s phone used cell towers near Chicago
at 4:50 p.m. and near the north side of Chicago at 5:12 p.m., but that it then used a tower less
than a mile west of the Oak Forest home at 6:49 p.m. And, later, at 8:29 p.m., defendant’s
phone used a cell tower for a direct-to-voicemail call showing its location as being east or
northeast of the Oak Forest home, consistent with the direction where Irma’s car was found
but inconsistent with the home itself, which would have been west of that tower.
¶ 44 Finally, forensic and additional testimonial evidence supported the State’s case. Monica
and Gabriel testified that when they returned home, there was half-eaten food left out on the
stove, but all the lights were off in the house and Carmen was home alone. They both
described that these things were incredibly unusual: Irma always repackaged and refrigerated
leftover food, and the family’s rule was that Carmen was never to be left home alone due to
her mental illness. They also described that, upon questioning defendant after he arrived
home, he told them he had gone for a walk at the park. They found this incredibly unusual as
well; both testified that in all the years they had lived with defendant, they never knew him to
go for walks. Gabriel testified that on the afternoon of Irma’s murder, he had asked her if she
would drive him to his friend’s house at 148th Street and Kilpatrick Avenue, a conversation
which, as Gabriel described, defendant was home to overhear; according to Gabriel,
defendant was also familiar with this location, as he had driven Gabriel to this same friend’s
house before. Irma’s car, and body, were found just south of this location. Officer Lorek
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No. 1-18-1293
testified defendant told him he found Irma’s purse inside the house when he returned home at
7:30 p.m. that night. This, however, is in direct contradiction to Monica and Gabriel’s
testimony that they found Irma’s purse, along with her sandals, in the garage after 8:15 p.m.,
whereupon they brought her purse inside. Gabriel also found his backpack, which he had
been storing in Irma’s trunk that day, suddenly moved to the basement behind some couches.
Moreover, there were no signs of a break-in at the Oak Forest home, and there was no
indication that Irma’s car had been stolen. Additionally, after watching surveillance video of
a maroon car making a withdrawal at the Berwyn ATM from Irma and Carmen’s shared bank
accounts at 5:52 p.m., detective Belcher drove the same path from there to the Oak Forest
home, clocking in at 38 to 40 minutes; this is consistent and fits the timeline of defendant
having seen the amount of money missing from the accounts and then calling Irma at 6:49
p.m. from less than a mile from the home as he drove there. Also, Scanlon testified that on
the evening on the day of the murder, he saw a white Pontiac Grand Am or Trans Am, which
he later identified as Irma’s, momentarily park in front of his house, which was only two
blocks away from where Irma’s car was found. He saw a tall, thin Hispanic man exit the car,
walk around to the trunk, stare at it and then reach over and wipe it; he then got back in the
car and drove away. And, forensic evidence showed that there was blood on the bumper of
Irma’s car; there was a clump of human hair and blood in several places on the floor of the
garage at the Oak Forest home; and the bullet fragments found in the garage matched the
bullets recovered from Irma’s body, indicating that they came from the same gun, shot in the
garage.
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No. 1-18-1293
¶ 45 Contrary to defendant’s argument, proof of physical evidence connecting a defendant to a
crime is not, nor has ever been, required to establish his guilt. See People v. Williams, 182
Ill. 2d 171, 192 (1998); accord People v. Bobo, 2020 IL App (1st) 182628, ¶ 43. Indeed, the
bulk of the evidence presented at trial here was circumstantial. However, that evidence,
along with the credibility of the witnesses and the weight to be given the evidence presented,
was ultimately for the jury to consider. See Williams, 182 Ill. 2d at 192; Steidl, 142 Ill. 2d at
226. Obviously, as a court of appeals, our review of cases would be much easier were every
one that came before us based on clear, direct evidence; the same sentiment, we are sure, is
held by trial courts and juries everywhere. However, that is not reality; life, and the law,
rarely operate in such manner. Regardless, such philosophical waxing does not, in any way,
undermine the propriety and validity of circumstantial evidence, nor the value it has, in our
jurisprudence. Just as direct evidence is required to meet certain legal thresholds to convict a
defendant beyond a reasonable doubt, circumstantial evidence is an alternative, but
nonetheless viable and acceptable, method to convict a defendant, as long as it meets the
same threshold as direct evidence. In the instant case, that threshold was met,
overwhelmingly. We find, contrary to defendant’s contention, that there most certainly was
sufficient evidence for the jury to rationally conclude as it did here, finding him guilty of
first-degree murder. Accordingly, and pursuant to the legal standards we have outlined, we
hold that a rational jury could clearly have found the essential elements of the crimes and
defendant’s role as the perpetrator beyond a reasonable doubt. Accordingly, there is no basis
to reverse his convictions.
¶ 46 II. Admission of Evidence: October 1997 Incident and Irma’s Funeral
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No. 1-18-1293
¶ 47 Defendant next contends that the trial court erroneously admitted inflammatory and
prejudicial evidence at trial which showed nothing more than his poor character, namely, the
October 17, 1997 incident during which he shot Irma in the hand, and that he neither paid for
nor attended Irma’s funeral. He claims that this evidence should have been excluded because
the shooting incident was both remote in time and factually dissimilar to the charged
offenses, and the evidence surrounding the funeral was inflammatory and irrelevant. He
insists the admission of this evidence necessitates the reversal of his conviction and remand
for a new trial. We disagree.
¶ 48 The parties are in alignment with respect to the standard of review here. The
admissibility of evidence at trial is a matter solely for the trial court. See People v. Illgen,
145 Ill. 2d 353, 364 (1991); People v. Taylor, 409 Ill. App. 3d 881, 914 (2011). In
determining whether to admit evidence before a jury, a trial court must first ask whether it
fairly tends to prove or disprove the offense charged and whether that evidence is relevant in
that it tends to make the question of the defendant's guilt more or less probable. See People
v. Wheeler, 226 Ill. 2d 92, 132 (2007); People v. Dunmore, 389 Ill. App. 3d 1095, 1105-06
(2009). The trial court may reject the evidence, even if otherwise relevant, on the grounds
that it has little probative value regarding the offense in question due to its remoteness,
uncertainty or unfairly prejudicial nature. See People v. Harvey, 211 Ill. 2d 368, 392 (2004);
People v. Figueroa, 381 Ill. App. 3d 828, 840-41 (2008). Ultimately, however, the decision
whether to admit the evidence lies within the trial court's discretion and will only be reversed
where it is arbitrary, fanciful or unreasonable, or where no reasonable person would adopt the
view of the court. See Dunmore, 389 Ill. App. 3d at 1105-06.
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No. 1-18-1293
¶ 49 We examine the admission of evidence concerning the October 1997 incident here first.
¶ 50 The parties further agree that, while evidence of other crimes or prior bad acts is only
admissible when relevant for purposes other than establishing a defendant’s propensity to
commit crime, there is a statutory exception when these other crimes or prior bad acts
specifically involve instances of domestic violence. That is, section 115-7.4 of the Code of
Criminal Procedure provides that specific instances of a defendant’s prior acts of domestic
violence are admissible and may be considered for their bearing on any relevant matter,
including propensity, as long as their probative value is not outweighed by the risk of undue
prejudice. See 725 ILCS 5/115-7.4 (West 2016); People v. Dabbs, 239 Ill. 2d 277, 290-91
(2010); accord People v. Daniel, 2022 IL App (1st) 182604, ¶¶ 129-131. In making this
evaluation of probative value versus prejudice, section 115-7.4 specifies that the trial court
may consider the proximity in time of the domestic violence evidence to the charged offense,
their degrees of factual similarity, and other relevant facts and circumstances. See 725 ILCS
5/115-7.4(b) (West 2016); Daniel, 2022 IL App (1st) 182604, ¶ 130.
¶ 51 Defendant insists that in applying these factors to the October 1997 incident during which
defendant shot Irma in the hand, “no judge could have reasonably found” that this evidence’s
probative value outweighed the undue prejudice it caused defendant before the jury. He
claims that the 12-year gap between that incident and Irma’s May 2009 murder severely
diminishes the evidence’s probative value; the two events lack any factual similarity, as the
prior incident was an accident during which only one shot was fired while Irma and
defendant were clearly married, while the murder was deliberate and occurred within the
context of a pending divorce; and the prior incident was singular in nature and ambiguous,
27
No. 1-18-1293
rather than demonstrating a pattern. We find, however, that defendant’s claims amount to
nothing more than a mischaracterization of the evidence.
¶ 52 First, with respect to proximity in time, it is true that the October 1997 incident occurred
12 years before the May 2009 murder. However, and while defendant points to cases which
have found similar lengths of time weigh against admissibility, there are cases where courts
have properly found that such gaps do not. Compare People v. Peterson, 2011 IL App (3d)
100513, ¶53 (affirming exclusion of prior incidents that took place 11 to 22 years before
charged offense) vacated by People v. Peterson, 958 N.E.2d 284 (2011), with People v.
Donoho, 204 Ill. 2d 159, 184 (2003) (affirming admission of incident that occurred 12 to 15
years before crime charged and citing cases where incidents occurring over 20 years prior
were deemed admissible). Ultimately, as our supreme court has declared, whether other
crimes evidence should be admitted “should not, and indeed cannot, be controlled solely by
the number of years that have elapsed between the prior offense and the crime charged.”
Illgen, 145 Ill. 2d at 370.
¶ 53 The key in the instant cause with respect to time is this: the contentious relationship
between Irma and defendant clearly was constant and lasted throughout the years between
the October 1997 incident and Irma’s May 2009 murder. Unlike defendant’s
characterization, the evidence presented at trial refutes any intimation that the October 1997
incident, and the circumstances surrounding it, comprised a “one-time thing.” Collaborative
testimony showed that the October 1997 incident happened as Irma and defendant were
fighting; that fighting continued through the years until Irma left with the children in order to
separate from defendant in 2008; and that fighting resumed the moment she moved back in
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No. 1-18-1293
with defendant in January 2009, five months before her murder. This was a pattern
throughout these 12 years, hardly rendering remoteness a factor for the exclusion of the
October 1997 incident.
¶ 54 Defendant’s further insistence that the two events lack any factual similarity and there are
no other relevant facts or circumstances to support the admission of the October 1997
incident also fails to hold water. Rather, in our view and upon examination, the incident and
the crime charged share many factual similarities. Both of them involved firearms, took
place in Irma and defendant’s home, and resulted in Irma being shot. Additionally, both of
them occurred during very contentious points in Irma and defendant’s relationship: Monica
specifically testified that the October 1997 incident was precipitated by the couple’s loud
arguing in their bedroom, and the crime charged occurred in the context of a pending divorce
which Irma had legally revived only four days before her murder. Additionally, and again
contrary to defendant’s insistence, there were other relevant facts linking the incident and the
crime charged, namely, the newspaper articles of the October 1997 incident found in Irma’s
purse. From the fact that Irma was carrying those 12-year-old clippings in the purse she was
using on the day she was murdered, it can easily be gleaned that the October 1997 incident
remained significant to her through the years. Moreover, the record demonstrates that the
October 1997 incident was not the only other crimes or bad acts evidence sought to be
presented at trial against defendant to show propensity. 7 The trial court, however, clearly
weighed these to determine probative value versus prejudice, concluding that, at least with
7
Pursuant to the record, the State sought the admission of evidence with respect to not only the October 1997
incident, but also events of domestic violence involving defendant that happened in 1992, 2002 and 2003. The trial
court ruled that only the 1992 and October 1997 incidents were admissible for propensity. As the parties address
only the October 1997 incident, we have limited our discussion accordingly.
29
No. 1-18-1293
respect to the October 1997 incident, the factors weighed in favor of its admission. Based on
all this, we do not find that the trial court abused its discretion in admitting evidence
regarding the October 1997 incident.
¶ 55 We likewise reach the same conclusion with respect to the trial court’s admission of
evidence demonstrating that defendant did not pay for or attend Irma’s funeral. Briefly, as a
threshold matter, the parties note that, while defendant raised objections at trial to both
evidence that he did not pay for the funeral and evidence that he did not attend it, he
specified in his posttrial motion only his objection to the evidence that he did not attend.
Clearly, to properly preserve an issue for review, a defendant must both timely object at trial
and include his assertion of error in his written posttrial motion. See People v. Enoch, 122
Ill. 2d 176, 186 (1988) (timely objection and written posttrial motion are required to preserve
issue for appellate review). Though admitting his failure, defendant insists that his posttrial
objection to the evidence that he failed to pay for the funeral “was the same” as an objection
to evidence that he did not attend, since he had raised them together earlier, thereby
rendering them “essentially one and the same.” Defendant presents no legal support for his
conclusion of looping these two separate points of evidence together and making a leap to
say the proper presentation of one for review also preserves the other. In other words,
evidence was presented to show defendant did not pay for Irma’s funeral; separate evidence
was then presented to show that he did not attend her funeral. Contrary to defendant’s claim,
these were not “one and the same.” Without more, and in light of our timeless rules
concerning the preservation of issues for appeal, we find no reason to absolve defendant from
forfeiture of his argument with respect to his failure to pay for the funeral.
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No. 1-18-1293
¶ 56 Defendant goes on to insist that, despite forfeiture, we should employ the first prong of
plain error to review both claims together, as the evidence against him was closely balanced.
See People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (under first prong, he must prove there
was plain error and the evidence was so closely balanced that this error alone severely
threatened to tip the scales of justice against him). However, we have already concluded the
exact opposite, namely, that the evidence against defendant was not closely balanced but,
rather, overwhelmingly proved his guilt beyond a reasonable doubt. Moreover, we
specifically did so based on evidence separate and apart from the evidence presented that he
did not pay for or attend Irma’s funeral. Thus, even if it could be concluded that there was
error in the admission of the evidence at issue, it would have been, in all respects, harmless
beyond a reasonable doubt. See People v. Mueller, 2021 IL App (2d) 190868, ¶ 56 (the
inquiry is whether the defendant’s conviction would stand regardless of the error, and
considerations may include whether other properly admitted evidence supported the
conviction). Accordingly, and in light of this, we need not determine whether the trial court
abused its discretion in admitting the evidence of defendant’s failure to pay for and attend
Irma’s funeral where we already found there to be overwhelming evidence of his guilt apart
from it. See People v. McGee, 398 Ill. App. 3d 789, 794 (2010), citing People v. Herron,
215 Ill. 2d at 187; see also People v. Walker, 232 Ill. 2d 113, 124 (2009) (absent error, there
can be no plain error).
¶ 57 For all these reasons, we find no basis to reverse and remand for a new trial with respect
to the cited evidence presented at trial.
¶ 58 III. Admission of Evidence: Defendant’s Credit Report
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No. 1-18-1293
¶ 59 Defendant’s third contention on appeal focuses on the admission into evidence of his
2009 credit report, which showed that he had a tax lien against him, a bankruptcy and
delinquent accounts. He asserts that, because this report was prepared by TransUnion based
on information it obtained from third-parties, it amounted to hearsay within hearsay. He
further asserts that, although the State provided an exception to the first layer by
demonstrating, through TransUnion senior consultant Orlowski’s testimony, that TransUnion
prepared the report under the business-record exception, the State did not provide an
exception to the statements underlying the TransUnion report and the trial court improperly
failed to require such a foundation. Defendant therefore claims that the trial court’s
admission of this evidence was erroneous, the error was not harmless, and reversal and
remand are required. Again, we disagree.
¶ 60 As a threshold matter, we note that defendant, citing to People v. Sundling, 2012 IL App
(2d) 070455-B, ¶ 82, and People v. Risper, 2015 IL App (1st) 130993, ¶33, but without
further explanation, declares that “[w]hether a statement constitutes hearsay is a legal
question” and, thus, a de novo standard of review is applicable. He is mistaken. This Court,
in People v. Perkins, 2018 IL App (1st) 133981, recently tackled the question concerning the
admission of hearsay evidence and the proper standard of review. Therein, we explained that
while de novo review of the trial court’s admission of hearsay evidence is proper when there
is a dispute over the legal content of a hearsay exception (i.e., what the exception says or
encompasses in legal terms), abuse of discretion review of the trial court’s admission of
hearsay evidence is proper where the dispute is not a misinterpretation of the hearsay
exception itself but, rather, a question of whether the statement at issue falls within the
32
No. 1-18-1293
hearsay exception (i.e., does the specific statement involved in the facts at issue fit into the
exception). See Perkins, 2018 IL App (1st) 133981, ¶¶ 52-53. Clearly, in the latter instance,
the admission of hearsay evidence lies solely within the discretion of the trial court. See
Perkins, 2018 IL App (1st) 133981, ¶ 53. In the instant cause, defendant’s argument is not
that the trial court misinterpreted the exception of hearsay within hearsay in legal terms.
Instead, he insists that pursuant to the specific facts of this case, the trial court improperly
found that the credit report was admissible under a hearsay exception. His argument, then,
is, at its core, one involving the admission of evidence. See Illgen, 145 Ill. 2d at 364; see
also Perkins, 2018 IL App (1st) 133981, ¶ 53, citing People v. Spicer, 379 Ill. App. 3d 441,
449 (2008) (“[t]he trial court has discretion to determine whether statements are hearsay and,
if so, whether they are admissible under an exception”); accord People v. Littleton, 2014 IL
App (1st) 121950, ¶ 49 (“Illinois courts apply an abuse-of-discretion standard when
reviewing a trial court’s decision regarding the admission of hearsay”). Accordingly, we
employ an abuse of discretion standard of review of this issue, and we will reverse the trial
court’s hearsay ruling here only if we determine that it was arbitrary, fanciful, or
unreasonable, or where no reasonable person would take the view adopted by the trial court.
See Perkins, 2018 IL App (1st) 133981, ¶ 53; accord Littleton, 2014 IL App (1st) 121950, ¶
49. 8
¶ 61 As noted earlier, Orlowski testified regarding a multi-page report TransUnion prepared in
2009 concerning defendant’s credit. He identified several of defendant’s accounts, which
showed he had a tax lien, he had filed for Chapter 7 bankruptcy, and he had accounts in
8
Also, we note that we may affirm the trial court when correct based on any reason appearing in the record before
us. See Perkins, 2018 IL App (1st) 133981, ¶ 53.
33
No. 1-18-1293
collections status. Orlowski also identified accounts belonging to defendant showing some
to be in good standing, others not in good standing, and others that had been closed, paid or
reported stolen. Orlowski admitted that TransUnion does not create credit records but,
rather, collects credit information from other companies and reports it; he could not ensure
that those companies’ information was correct; and TransUnion had been sued in the past for
reporting inaccurate credit information.
¶ 62 As the parties correctly note, the TransUnion report incorporates hearsay within hearsay.
Briefly, hearsay is an out-of-court statement offered for the truth of the matter asserted. See
Littleton, 2014 IL App (1st) 121950, ¶ 52, citing People v. Caffey, 205 Ill. 2d 52, 88 (2001).
Though hearsay is generally inadmissible, it may be admissible if it fits within an exception
to the rule against hearsay. See Littleton, 2014 IL App (1st) 121950, ¶ 64; citing Caffey, 205
Ill. 2d at 88-89. Where, as here, a hearsay statement (the TransUnion report) contains further
hearsay within it (statements from the third-party reporting agencies), such hearsay within
hearsay is admissible as long as each part, or layer, of the combined statements meets an
exception to the hearsay rule. See People v. Thomas, 178 Ill. 2d 215, 237-38 (1997).
¶ 63 In his brief on appeal, defendant does not contest that the State laid an adequate
foundation for the TransUnion report itself, i.e., the first layer of hearsay; he admits that the
State overcame any barrier to its admission by showing, through Orlowski’s testimony that it
falls under the business records exception to the hearsay rule, as TransUnion makes these
reports in the regular course of its business. Rather, his argument rests in his contention that
the information contained in the report which came from third-parties, i.e., the second layer
of hearsay, was not admissible as the State did not offer an exception to the rule against
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No. 1-18-1293
hearsay for that portion and, more critically, that the trial court erroneously did not require it
to lay a foundation for its admissibility.
¶ 64 However, as the State aptly points out, our Court has made clear that, “[w]here a third
party is authorized by a business to generate the record at issue, the record is of no use to the
business unless it is accurate and, therefore, the record bears sufficient indicia of reliability to
qualify as a business record under the hearsay rule.” Argueta v. Baltimore & Ohio Chicago
Terminal R.R. Co., 224 Ill. App. 3d 11, 20-21 (1991). This makes perfect sense. A business,
whose business it is to obtain information from third parties to create its own records, would
have no use for that information if it were not accurate. In fact, as our Rules of Evidence
state, hearsay is admissible under the exception of business records where the record was
created at or near the time of activity by a person with knowledge, kept in the course of a
regularly conducted business activity, and if it is the regular practice of that business activity
to make the record. See Ill. R. Evid. 803(6) (eff. Sept. 28, 2018). Therefore, where a
business receives information from a third party, that information can be admitted as part of
the business’s own records under Rule 803(6) on a showing that the business received the
information in its normal course of business, integrated that information, and used it in its
daily activities. See Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶ 86 (holding that while
a person receiving information from a business cannot solely by virtue of receiving it lay a
sufficient foundation for its admission, “there is an exception” where a business receiving it,
acting in the regular course of business, integrates the information received and relies on it
for its daily business operations).
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No. 1-18-1293
¶ 65 The credit report here fits squarely into this exception for third-party information
received by a business that then integrates it into its daily operations as part of its business.
That is, TransUnion’s business is to obtain credit information from third-party sources as its
regular practice. Undeniably, this is the very essence of what TransUnion does. It then
integrates this information and uses it in its daily operation, namely, to compile people’s
credit reports and report them, as a credit reporting agency. It is clearly reasonable, then, to
find that the third parties from which TransUnion obtains financial information provide that
information to TransUnion pursuant to a business relationship, and that TransUnion, in turn,
integrates that information and uses it in the course of its own business. Accordingly, as this
second layer of hearsay also fits within an exception to the hearsay rule, we find that the trial
court did not abuse its discretion in admitting the TransUnion credit report and its contents.
Compare Solis, 2012 IL App (1st) 110875, ¶ 86, and Argueta, 224 Ill. App. 3d at 20-21, with
People v. McCullough, 2015 IL App (2d) 121364, ¶¶ 121-22 (hearsay within hearsay
properly excluded where third-party caller who provided hearsay information was an
“outsider” wholly unrelated to telephone company and, thus, was not acting within the
business of that company). And, in contrast to any intimation otherwise, this is true where,
as here, the trial court may not have issued an explicit ruling as to the hearsay exception but
the record before us otherwise supports its decision that it falls within one and its admission
is proper. See Perkins, 2018 IL App (1st) 133981, ¶ 53 (“We may affirm the trial court when
correct for any reason appearing in the record”).
¶ 66 Even were we to find that the trial court did err in admitting the credit report, which we
do not, we still would not reverse and remand defendant’s conviction as he urges because any
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No. 1-18-1293
such error would be harmless. See Littleton, 2014 IL App (1st) 121950, ¶ 65 (reviewing
court is to determine whether error in admission of hearsay evidence is nonetheless harmless;
if so, reversal is not warranted). Defendant claims that, “given the weak circumstantial
evidence of guilt in this case,” the State’s argument that defendant’s motive for murder was
his financial distress was highly probative and “the linchpin of that argument” was
defendant’s credit report. Defendant then goes a step further to state that “[w]ithout the
credit report, the State would have been left without a plausible motive for the charged
offense, making it reasonably possible that the jury would not have found [him] guilty.”
¶ 67 “ ‘The admission of hearsay evidence is harmless error where there is no reasonable
probability that the [trier of fact] would have acquitted the defendant absent the hearsay
testimony.’ ” Littleton, 2014 IL App (1st) 121950, ¶ 65, quoting People v. Nevitt, 135 Ill. 2d
423, 447 (1990); accord People v. Meyers, 2018 IL App (1st) 140891, ¶47. We have already
discussed at length that, contrary to defendant’s insistence, the evidence against him, minus
the TransUnion credit report, though circumstantial, was not weak. Instead, it was
overwhelmingly sufficient to sustain his conviction beyond a reasonable doubt. Moreover,
there was much other evidence of defendant’s financial situation and/or financial motive
presented at trial, apart from the particular TransUnion report at issue. First, the jury heard
evidence from multiple witnesses that defendant had lost his job as a Chicago police officer
following the incident where he shot Irma in the hand. Second, there was much evidence
showing that Irma was planning on leaving defendant in the days before she was murdered—
her boyfriend, sister and attorney all corroborated each other in this regard. Finally, evidence
was presented demonstrating that Irma had withdrawn considerable amounts of money out of
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No. 1-18-1293
an account she shared with defendant’s mother; the money market account had been depleted
from almost $13,000 in January 2009 to only about $5,000 by May 2009, and Irma withdrew
$4,000 just five days before May 31—the same day surveillance footage showed someone in
a small maroon car (just like the one belonging to defendant’s mother which defendant used
regularly due to her mental incapacities and which he used that very afternoon, as witnessed
by Gabriel) use Carmen’s ATM card to make a withdrawal, and the same day Irma was
murdered, less than about two hours after that withdrawal. Therefore, even if the admission
of the TransUnion report amounted to error (which, again, it did not), that error was
harmless, as there is no reasonable probability that the jury here, based on all the other
evidence presented, would have acquitted defendant absent that report’s admission.
¶ 68 Ultimately, we find no error on the part of the trial court in allowing the admission of the
TransUnion credit report.
¶ 69 IV. State’s Closing Argument
¶ 70 Defendant next contends that he was denied a fair trial due to improper comments made
by the State during its closing argument. He cites four individual instances of error and
additionally argues that when taken together, they amounted to a pattern of misconduct
constituting plain error.
¶ 71 Defendant admits in his brief on appeal that he lodged only one objection at trial in
response to the citations of error he now raises, and that he did not preserve even that
objection in his motion for a new trial. He acknowledges, therefore, that he has forfeited this
issue. See Piatkowski, 225 Ill. 2d at 564 (issues not raised at trial or in a posttrial motion are
not preserved for review and are forfeited). However, in addition to insisting that de novo
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No. 1-18-1293
review is required, he asks us to reach the issue under both prongs of plain error review since
the evidence in his cause was closely balanced and since the four cited errors were so serious
that they affected the fairness of his trial. See Herron, 215 Ill. 2d at 178-79. Again, we have
already discussed, and repeatedly so, the evidence against defendant was not closely
balanced; accordingly, his request for plain error review under that prong fails. As for his
request for review under the second prong, we likewise fail to find, as we describe below,
any merit for reversal and remand of his conviction. We would further note that our ultimate
conclusion would be the same under either the incorrect de novo standard of review
defendant insists is required, or an abuse of discretion standard, which is the proper and
applicable standard here. See People v. Cornejo, 2020 IL App (1st) 180199, ¶¶ 126-28
(affirmatively holding that we review closing argument prosecutorial misconduct claims for
abuse of discretion, and not de novo).
¶ 72 The State is allowed a great deal of latitude in closing argument. See People v. Nieves,
193 Ill. 2d 513, 532 (2000); accord People v. Wiley, 165 Ill. 2d 259, 294 (1995). It " 'may
comment on the evidence and any fair, reasonable inferences it yields.' " People v. Phillips,
392 Ill. App. 3d 243, 275 (2009), quoting People v. Nicholas, 218 Ill. 2d 104, 121 (2005).
The test for determining whether there was reversible error because a remark resulted in
substantial prejudice to a defendant is whether the remark was a material factor in his
conviction, or whether the jury would have reached a different verdict had the State not made
the remark. See People v. Flax, 255 Ill. App. 3d 103, 109 (1993); accord Nieves, 193 Ill. 2d
at 533. We review the allegedly improper remark in light of all the evidence presented
against the defendant (see Flax, 255 Ill. App. 3d at 109), as well as within the full context of
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No. 1-18-1293
the entire closing argument itself (see People v. Cisewski, 118 Ill. 2d 163, 176 (1987)).
Ultimately, unless deliberate misconduct by the State during closing argument can be
demonstrated, comments will be considered incidental and uncalculated and will not form the
basis for reversal. See People v. Cloutier, 156 Ill. 2d 483, 507 (1993).
¶ 73 Based on the record before us, and when viewed within their context and within the
entirety of this trial, we do not find that the State's comments, as cited by defendant, were
erroneous or that they merit reversal and remand of his convictions.
¶ 74 The first comment defendant cites occurred when the State remarked, in its closing
argument:
“So did the defendant perform the acts which caused the death of Irma Rodriguez?
Well, let’s look to the opposite. Let’s look at any evidence that points to anyone
other than the defendant who would have performed these acts. There is none. There
is no evidence that points that [sic] anybody else.”
Defendant insists that, with this remark, the State improperly shifted the burden to him to
provide evidence demonstrating his innocence. His insistence is a mischaracterization.
¶ 75 The State’s remark was nothing more than a reasonable inference from the evidence
presented, which it had every right to make. The State’s theory was that defendant killed
Irma; defendant’s theory was that it was someone else. The State presented much
circumstantial evidence in support of its theory, including bank records, cell phone records
and testimony from family and friends about Irma and defendant’s relationship. It also, quite
significantly, presented evidence that this was not a random act of violence: specific
testimony indicated that there was no evidence that the family home was broken into that
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No. 1-18-1293
evening, and there was no evidence that Irma’s car had been stolen. Moreover, in support of
his theory, defendant told jurors during his opening argument that the State wanted them to
believe “the husband did it” and to “jump to that conclusion,” just as the police did, without
considering “any other people.” With the cited remark in closing, the State was responding
to the argument invited by defendant himself; it was discussing that there was no evidence
pointing to anyone else, especially when based on the evidence already presented at trial.
This was just another way for the State to refute defendant’s theory. See People v. Legore,
2013 IL App (2d) 111038, ¶ 56 (defendant cannot complain of the State’s comments on
argument he invited at trial). Furthermore, we find that the State in no way commented or
implied that defendant was required to present evidence. It simply remarked that no
evidence existed to support his theory, and this was proper for the State to do. See People v.
Glasper, 234 Ill. 2d 173, 212 (2009) (no error where State’s comments about lack of
evidence suggested the defendant needed to present some to prove his innocence, and were
also invited by his argument and were reasonable in light of the evidence presented). Finally,
the record shows that the trial court explicitly instructed the jury, twice (once at the outset of
trial and again after closing argument), that the burden of proving defendant’s guilt rested
solely with the State, and that the State had to do so beyond a reasonable doubt in order for
them to convict him. From all this, we find no error with this remark from the State.
¶ 76 The next comment defendant cites originates from the State’s remarks about where
Irma’s keys were found. In further discussing that Irma’s murder was not a random act of
violence, the State commented that the jury “would have to believe that this was a stranger
danger random act of violence, and that her keys magically get back to the house.” The only
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No. 1-18-1293
evidence presented about Irma’s keys, however, as defendant points out, was that they were
brought by police to Sergeant Daley, who assisted in recovering Irma’s car; the keys were
found by police at another location, but that location was not disclosed at trial. Defendant
insists that, in conjunction with his earlier argument about burden shifting, the State’s remark
proved highly incriminating, as it intimated that only one of four people could have murdered
her and brought the keys home—her loving children, her disabled mother-in-law, or
defendant with whom she was having problems. However, Irma’s keys and their location did
not factor into the evidence against defendant in the slightest. They were mentioned
incredibly briefly at trial, and only in connection with how the police were able to open the
trunk of the car to find Irma’s body. That the State mentioned them during closing—again,
very briefly, in passing, and without any discussion—renders the cited comment, in our view,
to be inconsequential. Moreover, the record shows that defendant objected to the State’s
remark in open court that there had “been no testimony where the keys were,” the trial court
immediately sustained defendant’s objection, and the State did not mention the keys again.
From all this, it cannot be said that this comment was, at all, a material factor in defendant’s
conviction so as to have caused him prejudice. See People v. Smith, 2014 IL App (1st)
103436, ¶ 70, citing People v. Runge, 234 Ill. 2d 68, 142 (2009) (where other factors show
comment did not amount to prejudice, reversal is not warranted).
¶ 77 Defendant’s third citation of error is his assertion that the State “overstated what the
historical cell-site analysis established.” He claims that, whereas agent Raschke specified
that this evidence could only provide a general location for a phone and not a specific one,
the State nonetheless remarked in its closing argument that this evidence “put[] her [Irma] in
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No. 1-18-1293
her residence" at 6:30 p.m., “put him [defendant] right at the same location as Irma” at 6:49
p.m., and then proved he was “where Irma’s car [was] found” at 8:29 p.m.—all comprising
improper misstatements of the evidence and causing prejudice. Defendant’s assertion,
however, is a classic example of improperly isolating remarks from a lengthy closing
argument in order to claim error. As the record wholly demonstrates, in the several
paragraphs of the transcript of the State’s closing argument preceding the remarks at issue,
the State devoted much time to reviewing agent Raschke’s testimony and its content. It
stated, explicitly, and directly in line with his explanations, that the cell phone analysis
evidence can tell only “the general area a person is” at “the time they are making or receiving
phone calls.” Then, when detailing the evidence of Irma and defendant’s cell phones in
particular, the State further clarified, and again in line with agent Raschke’s testimony, that
Irma’s phone showed “she was kind of in the area” of the family home at 6:30 p.m., because
the cell tower closest to the residence had the strongest signal and it was about half a mile
away. At this point, the State remarked that this evidence “puts her in her residence at 6:30”
p.m., immediately explaining this was a “reasonable inference” from all the evidence
presented, including Gabriel and Monica’s observations of food on the stove. Defendant
objected, and the trial court, without sustaining or overruling the objection, instructed the
jury that reasonable inferences may be made but they should not consider closing arguments
as evidence. Contrary to defendant’s characterization, these remarks, when taken in context
of the whole closing argument, were not erroneous. The State clarified for the jury the
limitations of the cell phone analysis evidence, just as agent Raschke did. The cited
comments, moreover, were simply reasonable inferences from all the evidence presented, not
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No. 1-18-1293
just the cell phone analysis evidence itself. Additionally, not only did the trial court provide
proper instructions to the jury in this regard as a curative measure, but we would be hard-
pressed to find prejudice, particularly where defendant’s theory of the case, namely, that he
was not the killer, had nothing to do with exact locations anyway (i.e., whether Irma and/or
defendant were inside the home as opposed to merely near it). See People v. Rush, 294 Ill.
App. 3d 334, 340-41 (1998) (State has right to comment on evidence in closing argument and
make any reasonable inference therefrom, even if it is unfavorable to defendant; and, a trial
court’s instructions to jury that closing argument is not evidence cures any error resulting
from State’s remarks).
¶ 78 Defendant’s final citation of error on the part of the State during closing argument is that
it urged the jury to convict out of sympathy for Irma’s children and not based on proof of his
guilt. He refers to the State’s remarks that it is “terrifying” to know Monica and Gabriel
were calling Irma when she was already dead, that they were “innocent people” and the
“victims here” whose mother was taken away, and that had they known it was the last time
they would see her, they “would have stuck around.” Defendant insists such comments did
nothing but inflame the passions of the jury to convict him, providing extra prejudice as they
were made by the State during rebuttal closing argument, to which he could not respond.
Defendant is correct that courts highly disfavor sympathetic and emotional appeals to juries
describing the family of a murder victim left behind. See People v. Mapp, 283 Ill. App. 3d
979, 990-91 (1996). However, even where such remarks are made, they must be reviewed
within the context of the entirety of closing argument, that is, closing argument proper and
rebuttal, and, where it can be said that such improper remarks most likely did not play a role
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No. 1-18-1293
in the jury’s verdict, particularly based on overwhelming evidence of the defendant’s guilt,
we will not conclude that reversal is warranted. See Mapp, 283 Ill. App. 3d at 991; see also
People v. Barker, 298 Ill. App. 3d 751, 757-58 (1998) (comments regarding family members
left behind, though improper and should be admonished, did not merit reversal where
evidence of guilt was overwhelming); see also People v. Hope, 116 Ill. 2d 265, 275-76
(1986) (murder victims do not live in vacuums and mentions of victim’s family do not
automatically amount to reversible error; how such comments are introduced must be
examined); contrast People v. King, 2020 IL 123926, ¶ 21 (admission of testimony about
victim’s family’s reaction to victim’s death was clearly erroneous). In the instant cause, we
find that defendant again pulls the State’s comments out of context of what was a lengthy
closing and rebuttal argument. First, he neglects to mention that, in his own closing
argument, he referenced repeatedly that he cooperated in the search for Irma by, for example,
consenting to officer Lorek’s entry of his home that night and placing numerous calls to Irma
to assist in finding her—actions that clearly demonstrated both his concern for her and his
innocence. The State’s cited comments came in response to these assertions. The State
restated defendant’s closing proposition and then proceeded to compare his actions to those
of Irma’s children, i.e., they called Irma repeatedly, went looking for her and reported her
missing to police, whereas defendant showered, stayed in the house, and his cell phone
records showed only one call that evening after Irma’s disappearance. The State then related
all this back to the evidence presented in an effort to dispel defendant’s insistence that his
actions demonstrated the concern of an innocent person. Clearly, when the comments were
made, the State was responding directly to defendant’s own assertions, made first.
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No. 1-18-1293
Additionally, and again, the evidence against defendant was overwhelming here. No fair-
minded juror could have reasonably voted to acquit defendant based solely on these cited
comments by the State. See Barker, 298 Ill. App. 3d at 757-58, citing Mapp, 283 Ill. App. 3d
at 991 (despite even serious prosecutorial misconduct in referencing family during closing
argument, overwhelming evidence of guilt supported affirmance).
¶ 79 Finally, defendant attempts to advocate for reversal by claiming that while each cited
comment may not, in and of itself, warranted such a remedy, the cumulative effect of them
demonstrates sufficient prejudice so as to have denied him his right to a fair trial. We do not
agree. Under whatever measure of review—direct, plain error, closely balanced evidence or
fundamental fairness—we have thoroughly examined the record, considered each of these
cited instances at length, and have found none of them amount to reversible error.
Accordingly, as each instance is not error, their cumulative effect similarly cannot rise to the
level of reversible error either. See People v. Irwin, 2017 IL App (1st) 150054, ¶ 57.
¶ 80 V. Historical Cell Site Analysis and Frye
¶ 81 Defendant’s fifth contention on appeal is that the trial court erred in admitting agent
Raschke’s testimony regarding the historical cell site analysis data without first holding a
hearing pursuant to Frye v. United States, 293 F. 1013 (1923). He claims that because agent
Raschke’s testimony was based on “the scientific underpinnings of cellular telephone
networks,” the State had the burden to show historical cell site analysis is generally accepted
by the relevant scientific community and, by denying his request to hold a Frye hearing, the
court admitted Raschke’s testimony in error, which was not harmless because it “played a
critical role” in his conviction. Again, we disagree.
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No. 1-18-1293
¶ 82 Indeed, the admission of expert testimony is governed by Frye. See In re Commitment of
Simons, 213 Ill. 2d 523, 529-30 (2004); accord People v. Fountain, 2016 IL App (1st)
131474, ¶ 57. The Frye standard dictates that scientific evidence is admissible at trial when
the methodology or scientific principle upon which the opinion is based is sufficiently
established to have gained general acceptance in a particular field. See Fountain, 2016 IL
App (1st) 131474, ¶ 57; People v. Wilson, 2017 IL App (1st) 143183, ¶ 45. This does not
mean universal acceptance, nor does it require that the methodology be accepted by even a
majority of experts; instead, it is sufficient that the underlying method is reasonably relied
upon by experts in the relevant field. See Fountain, 2016 IL App (1st) 131474, ¶ 57, citing
Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 78 (2002), abrogated on
other grounds by Simons, 213 Ill. 2d at 530. Significantly, the Frye test applies only to
“new” or “novel” scientific methodologies, which are those methodologies that are “original
or striking” or do not resemble something already known or used. Fountain, 2016 IL App
(1st) 131474, ¶ 57 (internal citations omitted); see also People v. Williams, 2017 IL App (1st)
142733, ¶ 38, citing People v. McKown, 236 Ill. 2d 278, 282-83 (2010). Once a
methodology has gained general acceptance in the particular scientific community, its
general acceptance is presumed and it is considered established as a matter of law. See
Williams, 2017 IL App (1st) 142733, ¶ 38 (it is presumed accepted in subsequent litigation).
A court may determine such general acceptance either based on the results of a Frye hearing
or by taking judicial notice of unequivocal and undisputed prior judicial decision or technical
writing on the subject. See Williams, 2017 IL App (1st) 142733, ¶ 38, citing People v.
McKown, 226 Ill. 2d 245, 254 (2007). Also significantly, a reviewing court is free to
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No. 1-18-1293
consider court opinions from other jurisdictions in determining whether a Frye hearing was
warranted. See Fountain, 2016 IL App (1st) 131474, ¶ 57, citing Simons, 213 Ill. 2d at 531.
¶ 83 As the record reveals, defendant filed three pretrial motions seeking to preclude the
introduction of the historical cell site analysis, with the third one (which is at issue here)
requesting a Frye hearing on its admissibility. The trial court denied the motion. Citing the
applicability of the Frye standard, the court noted that historical cell site analysis is “an
accepted scientific theory in the community; and, therefore, there need not be any Frye
hearing to determine whether or not, because it’s not novel, to determine whether or not it’s
admissible.” The court also commented that it had presided over a triple murder case “where
the same issue was brought up, and it [the same motion] was denied.” For various reasons,
and based on the record before us, we find no error on the part of the trial court in denying
defendant’s request for a Frye hearing.
¶ 84 First, and foremost, our courts have repeatedly held that testimony regarding historical
cell site information is not a new or novel scientific principle or methodology. See Fountain,
2016 Il App (1st) 131474, ¶¶ 58-59 (citing collection of cases and declaring use of cell phone
location records to determine general location of a cell phone does not constitute “new” or
“novel” scientific information; rather, it has already been “widely accepted as reliable by
numerous courts throughout the nation”); see also Williams, 2017 IL App (1st) 142733, ¶ 39
(same); accord United States v. Hill, 818 F. 3d 289, 297 (7th Cir. 2016) (federal district
courts have uniformly rejected challenges to admissibility of historical cell site analysis, as
the science and methods on which this is based “are understood and well documented”).
Defendant admits as much in his own brief on appeal. But, upon his open recognition of
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No. 1-18-1293
such caselaw, he goes on to assert that we should not follow these holdings because the use
of historical cell site analysis is still new. We find his assertion inexplicable here. Fountain,
which we have cited herein, was decided some six years ago, and its progeny, which consists
of much published and unpublished caselaw, has been consistent in holding that historical
cell site analysis is, in direct contradiction to his insistence, not new or novel. See, e.g.,
Fountain, 2016 Il App (1st) 131474; Williams, 2017 IL App (1st) 142733. Defendant has
provided no caselaw to the contrary. As such, a Frye hearing was not required here. See
Fountain, 2016 Il App (1st) 131474, ¶ 59 (scientific concepts that are not new or novel do
not require Frye hearing).
¶ 85 Moreover, we point out that agent Raschke, in particular, is not new to this Court.
Fountain, Williams, Wilson, and Hill—just to name a few—were all cases that saw agent
Raschke testify regarding historical cell site analysis in criminal trials. Time and again, in
those cases and others, our Court found that it was not an abuse of discretion to admit his
testimony in this regard. See Fountain, 2016 Il App (1st) 131474, ¶ 61 (trial court did not err
in not conducting a Frye hearing with respect to agent Raschke’s historical cell site analysis
where he used historical data from the defendant’s cell phone records to demonstrate the
towers that the defendant’s phone had actually activated, as this not new or novel scientific
principle or methodology); Williams, 2017 IL App (1st) 142733, ¶ 39 (where agent Raschke
testified that cell phones use radio signals to connect to cell towers, which is generally but
not always the closest tower to the cell phone, and once the signal connects, the phone
company records some basic information such as the phone numbers involved, length of the
call and identification of the towers, this was not evidence requiring Frye hearing); Wilson,
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No. 1-18-1293
2017 IL App (1st) 143183, ¶ 47 (where Frye standard did not apply to agent Raschke’s
historical cell site analysis, defense request for trial court to hold Frye hearing would have
been futile and ineffective assistance of counsel claim failed); Hill, 818 F. 3d at 298
(“Historical cell-site analysis can show with sufficient reliability that a phone was in a
general area *** and the science is well understood. [Citation omitted.] This technique
requires specialized training, which Agent Raschke has and has employed successfully on
hundreds of occasions”). This was particularly true where the record in those cases showed
that agent Raschke emphasized during his expert testimony that a defendant’s cell phone’s
use of a cell site did not mean that the defendant was right at that tower or at any particular
spot near that tower. See, e.g., Hill, 818 F. 3d at 298-99 (admission into evidence of agent
Raschke’s testimony of historical cell site analysis was not abuse of discretion, particularly
where his testimony on both direct and cross examination made clear the evidence’s pitfalls
and imprecision). As we have discussed herein, agent Raschke’s testimony in the instant
case was exactly that: he was careful to emphasize, repeatedly, that historical cell site
analysis in general terms is limited and he explained, again repeatedly, that the data he
reviewed from Irma and defendant’s phones provided only the general area in which their
phones were located based on tower usage, and that it in no way indicated Irma or
defendant’s precise locations at precise times. Since it is clear that the methodology of
historical cell site analysis—and from agent Raschke himself, no less—is accepted in our
courts, its consideration as an established matter of law rendered a Frye hearing, for this
reason as well, unnecessary in the instant cause. See Williams, 2017 IL App (1st) 142733, ¶
38.
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No. 1-18-1293
¶ 86 Defendant insists that a Frye hearing was nonetheless required here because agent
Raschke’s testimony was based on, as he classifies it, “the science underlying ratio-spectrum
telecommunications.” He claims that while reading coordinates of cell sites from phone
records and plotting them on a map may not be considered by our courts as scientific
procedure (see Fountain, 2016 IL App (1st) 131474, ¶ 58, and Wilson, 2017 IL App (1st)
143183, ¶46), agent Raschke did more here. That is, in an attempt to link inferences
together, defendant claims that, because agent Raschke testified to locations of cell towers
used by a given phone, this information is only relevant when one infers that the cell phone is
connecting to the closest possible cell tower, and that requires one to infer the geographic
location of the phone, and that inference is based on “underlying radio-spectrum
communications” of cellular telephone networks. While we agree that agent Raschke
perhaps did more than plot dots on a map for the jury (as he did, for example, in Wilson), we
disagree with defendant’s notion that his testimony somehow veered off into a new realm of
scientific methodology simply because he briefly talked about cell phone towers. This is
plainly not true.
¶ 87 Rather, upon our review of his testimony as contained in the record before us, we find
that agent Raschke testified in much the same manner as he has in cases past, including
Fountain, Williams, and Hill. Yes, he spoke about how cell towers operate—but this was
brief and nothing new, novel, or confusing to the average, everyday cell phone user, which
today, is virtually everyone in our society. The first part of his testimony was very
generalized, and he gave an elementary, even rudimentary, description of how cellular
networks function. He explained that when a cell phone makes or receives a call, the phone
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“communicates with a cell tower” that has “radio frequency transmitters and receivers,”
which are just pieces of equipment that connect to the actual cellular network, enabling the
phone to work. He also noted that when a cell phone is on, it is scanning for a radio
frequency, measuring signals from cell towers to “always use the strongest, clearest signal”
as cell phones are programmed to do to ensure the best call quality, and that the strongest,
clearest signal “generally comes from the tower that the phone is closest to.” Such
information has become part and parcel of daily life: cell phones ping from the cell tower
closest to them, unless, of course, the tower is obstructed or not functioning properly when
the phone is in use. Nowadays, and especially in light of the common quest for the best cell
phone signal, this can hardly be considered a scientific principle. Moreover, there is no
mention in the record, by agent Raschke during his testimony or by anyone else, for that
matter, of the phrase “radio-spectrum communications.” This is a construct of defendant’s
own making. Such a term was never used at all. “Radio frequency” was used, but again, this
can hardly be considered a novel concept in today’s society, which has now made even
radios seem antiquated.
¶ 88 Defendant also makes much of the trial court’s comment, made when it denied his
motion, that it had presided over a triple murder case “where the same issue was brought up,
and it [the Frye motion] was denied.” He insists this was improper because, according to the
Frye standard, if the trial court does not hold a Frye hearing, it must take judicial notice of
“unequivocal and undisputed prior judicial decision or technical writing on the subject” in
order to determine the evidence’s validity and admissibility (Williams, 2017 IL App (1st)
142733, ¶ 38), and, as the triple murder case to which this trial court referred was not an
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“unequivocal and undisputed prior judicial decision,” it did not count as a viable basis to
deny his motion. While this may be true, we again note that, not only is historical cell site
analysis now presumed accepted in subsequent litigation (see Williams, 2017 IL App (1st)
142733, ¶ 38), we, as a reviewing court, are free to consider court opinions from other
jurisdictions in determining whether a Frye hearing was warranted (see Fountain, 2016 IL
App (1st) 131474, ¶ 57), which we have concluded was not in the instant case. And, we
would further note that the trial court made the brief comment of the triple murder case in
passing; it was not the foundation for the denial of defendant’s Frye motion. To the contrary,
that was, as the trial court declared, because it found historical cell site analysis to be “an
accepted scientific theory in the community; and, therefore, there need not be any Frye
hearing to determine whether or not, because it’s not novel, to determine whether or not it’s
admissible.”
¶ 89 Finally, even if the trial court erred in not holding a Frye hearing, which it did not, any
error in this regard would be harmless. Defendant insists that the historical cell site analysis
“played a critical role” in his conviction. This is pure speculation. As we have noted
repeatedly, the evidence against defendant was overwhelming. This evidence consisted of
much more than just the historical cell site analysis to which agent Raschke testified. We
have detailed that abundantly in our decision herein. To say that the jury relied solely, or
even mostly, on this testimony when so much other evidence was presented is something we
will not do. Furthermore, the record clearly demonstrates that defendant had an opportunity
to cross-examine agent Raschke to the fullest regarding the evidence at issue and its
shortcomings. Agent Raschke even admitted that he did not check the 2009 maintenance
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records for the cell towers he used as the basis for his analysis, and he did not conduct any
network field testing in 2009 or anytime thereafter. This, combined with the repeated
limitations presented to the jury, on both agent Raschke’s direct and cross examinations, that
historical cell site analysis cannot pinpoint an exact location or specific address of an
individual but can only show that a cell phone “was in a general area covered by” a certain
tower at a particular time in relation to other certain cell towers, renders any perceived error
in the trial court’s failure to hold a Frye hearing harmless.
¶ 90 VI. Cumulative Error
¶ 91 Finally, defendant asserts on appeal that if we do not find that any of his contentions
individually merit reversal of his conviction, we should nonetheless reverse and remand for a
new trial. He claims that all the alleged errors he cited, combined with “the closely balanced
evidence,” demonstrate that their cumulative effect resulted in the denial of a fair trial.
¶ 92 There is generally no cumulative error where a defendant’s alleged errors do not amount
to reversible error on any individual issue. See People v. Green, 2017 IL App (1st) 152513,
¶ 118. Based on our thorough review of the record, and our equally thorough examination of
the alleged errors raised by defendant, we have found that there was no error in any of the
claims pursued by him on appeal. Since we have found no individual error, there can be no
cumulative error. See Green, 2017 IL App (1st) 152513, ¶ 118 (no cumulative error can be
found on appeal were no error occurred at all during trial); see also Hall, 194 Ill. 2d at 350-
51; People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 110 (cumulative errors that
warrant extreme result of reversal and remand for new trial must themselves be extreme;
short of this, cumulative error warranting reversal and remand will not be found).
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¶ 93 CONCLUSION
¶ 94 Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court.
¶ 95 Affirmed.
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