People v. Roman

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Roman, 2013 IL App (1st) 110882
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARTIN ROMAN, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-11-0882
Filed November 6, 2013
Held Defendant’s murder conviction was reversed and the cause was remanded
(Note: This syllabus for a new trial where prejudicial gang evidence that was not related to
constitutes no part of defendant’s identification and had no probative value to any issue in the
the opinion of the court case was improperly admitted at defendant’s trial and the State’s
but has been prepared courtroom cart bore a “Gang Unit” sticker, notwithstanding the State’s
by the Reporter of contention that the gang evidence established a motive for an otherwise
Decisions for the inexplicable act, since evidence that defendant is a gang member or
convenience of the involved in gang activity is admissible only when there is sufficient proof
reader.)
gang membership or activity is related to the charged crime, and in
defendant’s case, such proof was lacking and the admission of the gang
evidence was reversible error.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-03180; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Kristen E. Mueller, of State Appellate Defender’s Office, of Chicago, for
Appeal appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter
Fischer, and Whitney Bond, Assistant State’s Attorneys, of counsel), for
the People.
Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion.
Justices Pucinski and Mason concurred in the judgment and opinion.
OPINION
¶1 Determining whether the State is introducing evidence of gang membership for a relevant
and permissible purpose or for an illegitimate and highly prejudicial effect can present the
trial judge with a difficult task. At issue, of course, is the fundamental right to a fair trial.
¶2 The admission of gang-related evidence is at the core of this appeal, in which a jury
convicted the defendant, Martin Roman, of murder. He and several codefendants had beaten
to death a factory employee in the parking lot where the victim worked. The trial court
sentenced Roman to 32 years in prison. Roman contends several errors by the trial court are
grounds for reversing his conviction, including the admission of testimony and photographic
evidence that Roman was a member of a street gang.
¶3 Although we consider the crime and the defendant’s conduct to be reprehensible, the
admission of gang-affiliation as to Roman was of no probative value. The State contends it
“was introduced for the limited purpose of showing the circumstances surrounding
defendant’s identification,” but the record reveals that the gang evidence had nothing to do
with witness identification of Roman Martin, or with any other issue. Accordingly, his
conviction must be reversed and the case remanded for a new trial.
¶4 BACKGROUND
¶5 In the early hours of December 24, 2007, Francisco Reyes was beaten and killed by a
group of men in the parking lot of a tortilla factory in Chicago. Martin Roman and five other
men, Daniel Roman, Carlos Lopez, Ismael Morales, Omar Morales, and Adolfo Zuniga, who
lived in the neighborhood, were later arrested and charged with first degree murder and
robbery. (All references to “Roman” refer to Martin Roman; Daniel Roman will be identified
with his first and last names.) Roman and Zuniga were tried together after their codefendants
had been tried and convicted. Before trial, defendants’ attorneys sought to bar the State from
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presenting evidence regarding an incident on December 4, 2007, when three men beat a man
in the factory parking lot and smashed car windows. The trial court denied the request
finding the evidence more probative than prejudicial because it supported the State’s theory
of a motive for the murder. The defense also asked the court to preclude the State from
presenting gang-related evidence at trial. Specifically, defense counsel sought to prevent the
State from using photographs of defendants’ gang tattoos, arguing they were prejudicial and
served no purpose other than to inflame the jury. The trial court denied that motion on the
grounds that the photographs supported the State’s theory that the offense was gang-related
and corroborated the witnesses’ identifications of the perpetrators. The trial court also
refused defense counsel’s request that the State remove or cover a “Gang Unit” sticker from
the cart they used in the courtroom, despite the State’s offer to do so. The judge stated the
sticker “never mattered to a jury before” and expressed concern that the prosecution might
lose the cart without it.
¶6 The State’s evidence at trial consisted primarily of the testimony of three eyewitnesses,
Sylvia Ortiz, Fernando Garcia, and Juliana Flores, who all saw the murder occur. Ortiz and
Garcia lived with their son on the second floor of an apartment building across the street
from the tortilla factory. They said they watched the crime from separate windows facing the
parking lot. Flores was with her boyfriend, who lived downstairs from Ortiz and Garcia. She
too watched the beating from an apartment window.
¶7 Ortiz testified that on December 4, 2007, a few weeks before the murder, she heard a
banging noise outside at about 1 a.m. She looked out her window and saw three men hitting
the factory door with baseball bats. Ortiz recognized all three men, Martin Roman, Daniel
Roman, and Ismael Morales, because she frequently saw them hanging around the
neighborhood. When no one opened the factory door, Ortiz saw the men break car windows
in the parking lot. Ortiz called the police, who arrived about 15 minutes later.
¶8 One of the factory employees, Pedro Martinez, testified he arrived at work on the evening
of December 3 and saw a group of young men, including codefendant Zuniga, hanging out
on the corner near the factory. Later that evening, a man whom Martinez had not seen before
came to the factory to sell a car jack. A few minutes later, another man came into the factory.
He had been beaten up and his face was bleeding. After letting the injured man in, one of the
employees closed the factory door. Later, loud banging on the door could be heard and the
two men stayed in the factory until the banging stopped. Martinez went outside and saw that
his car windows were broken and another car was damaged. Martinez saw the same crowd
of five or six young men, including codefendants Zuniga, Carlos Lopez, and Omar Morales,
standing on the corner. He testified that he saw this group near the factory almost every day
when he arrived at and left work.
¶9 About three weeks later, shortly after midnight on December 24, Ortiz and Garcia were
home when they heard a voice outside. They both recognized the person speaking as Daniel
Roman, who was talking on a cell phone. Ortiz said Daniel Roman told the person on the
phone to come over because there was someone they were going to beat up. Garcia heard
Daniel Roman say “come help me. There is a person who works at the factory that we can
beat up. Come on. Let’s fuck him up.” Soon after, Roman, Carlos Lopez, Ismael Morales,
and Omar Morales arrived. Garcia and Ortiz recognized them because they had seen them
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hanging out in the neighborhood every day for four or five years. After the men gathered,
they ran toward the factory parking lot where Francisco Reyes was driving a forklift. Juan
Ramirez, one of Reyes’s coworkers, testified that a supervisor had sent Reyes out to the
parking lot shortly before the murder to unload a shipment of corn. The men grabbed Reyes
off the seat of the forklift, forced him to the ground, and began hitting and kicking him.
¶ 10 At some point, Adolfo Zuniga arrived in a car and joined the others in beating Reyes.
Then one of the men went across the street and picked up a concrete rock. Garcia testified
Ismael Morales dropped the rock on Reyes’s head and Carlos Lopez dropped the rock on him
a second time. Ortiz also testified that a rock was dropped on Reyes’s head twice, but did not
identify who dropped it. Ortiz said that as Reyes lay on the ground, one of the men removed
a wallet and some pieces of paper from Reyes’s pocket and, after striking Reyes with the
rock, scattered.
¶ 11 Inside the factory, a supervisor asked Juan Ramirez to check on Reyes because he had
not returned from unloading the corn. Ramirez found Reyes lying on his back in the parking
lot. He ran back into the factory to call 911. Reyes was taken to a hospital where he died the
next day. The medical examiner testified that the cause of death was cranial cerebral injuries
due to assault.
¶ 12 Detectives Roberto Garcia and Peter Maderer investigated the murder. On December 27,
Fernando Garcia went to the police station and told Detective Garcia what he saw the night
of the murder. He testified he did not come forward earlier because he feared retribution,
particularly because the uncle of some of the perpetrators lived in the apartment below his.
Fernando Garcia identified photos of Roman, Daniel Roman, Ismael Morales, Omar Morales,
Adolfo Zuniga, and Carlos Lopez as the perpetrators. Garcia also viewed three in-person
lineups. At the first, he identified Omar Morales as one of the perpetrators. At the second,
he identified Roman, Ismael Morales, Daniel Roman, and Adolfo Zuniga. At the third, he
identified Carolos Lopez. Garcia, at trial, made an in-court identification of Roman as one
of the men who beat Reyes. He also testified that he was “one hundred percent sure” Roman,
Daniel Roman, and Ismael Morales were members of a street gang, the Latin Kings, because
he often saw them in the neighborhood making gang signs and yelling at passing cars. The
State also asked Garcia to illustrate the Latin Kings’ gang sign and yell the gang’s slogan,
“King Love,” during his testimony.
¶ 13 On January 1, 2008, Sylvia Ortiz spoke to Detective Garcia at the police station. She
testified she did not speak to the police on the night of the murder because she was afraid
since the Morales brothers were related to her downstairs neighbor. The police showed Ortiz
a photo array. She identified Roman, Ismael Morales, and Daniel Roman as three of the
perpetrators but failed to identify Zuniga, who appeared in one of the photos. Ortiz later
viewed three in-person lineups. At the first, she identified Roman, Ismael Morales, and
Daniel Roman, and made a tentative identification of Zuniga. At the second lineup, she
identified Omar Morales. At the third lineup, she identified Carlos Lopez. Ortiz also
identified Roman in court. She testified that she did not know whether Roman or any of his
codefendants were gang members but frequently saw them hanging out on the corner.
¶ 14 The State also presented Juliana Flores as a witness. Flores testified that on the night of
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the murder she was staying at her boyfriend’s apartment in the same building as Ortiz and
Garcia, across the street from the factory. At about 1:15 a.m., Flores heard a man talking
outside. When Flores looked out the window, she saw Daniel Roman talking on his cell
phone and heard him say something about beating someone up. She then heard people
running and looked out the window to see a group of men running toward a man on a forklift.
Flores said she looked away. The next time she looked out the window, she saw that the man
on the forklift was on the ground and the men were kicking and punching him. Flores
testified that the perpetrators included Roman, Daniel Roman, Omar Morales, Ismael
Morales, and Carlos Lopez, and that codefendant Zuniga arrived later and joined in on the
beating. Flores said she had a clear view from her window but did not see the entire beating
incident because she was looking out the window every once in a while.
¶ 15 Flores and her boyfriend, Jaime Gonzalez, went to the police station on December 24,
2007, and spoke with Detective David Roberts. Flores gave Detective Roberts the first and
last names of Roman, Daniel Roman, and Ismael Morales and the first names, approximate
ages, and location of three other individuals. Flores returned to the police station on January
9, 2008, where she viewed photographs and a lineup. In the lineup, Flores identified Roman,
Daniel Roman, and Ismael Morales as three of the men who took part in the beating. From
photographs, Flores identified six men, including the defendant, as the men who beat Reyes.
Flores testified that she knew the men because she had seen them in the neighborhood and
her boyfriend had introduced her to them. Flores also said her boyfriend was a member of
the Latin Kings street gang and that he used to hang out with Roman and his codefendants,
who were also Latin Kings.
¶ 16 Michael Delacy, an investigator with the Cook County States Attorney’s office, testified
that he took photographs of Roman’s tattoos. The State published those photos, which
showed numerous gang-related tattoos on Roman’s upper body. Before Delacy’s testimony,
the defense renewed their objection to the introduction of gang evidence because they argued
there was no connection between defendant’s gang membership and the witnesses’
identification of the perpetrators. The trial court disagreed, stating that some of the witnesses
could identify the perpetrators because they frequently saw them flashing gang signs in the
neighborhood.
¶ 17 Detective Garcia testified about the lineups he conducted with the three eyewitnesses,
Flores, Garcia, and Ortiz, where they each identified Roman as one of the perpetrators of the
December 24 attack on Reyes. Also, over defense counsel’s objection, the State showed
Detective Garcia photographs of Roman’s tattoos and asked him about their significance.
Detective Garcia testified that the tattoos showed that Roman was a gang member.
Specifically, Garcia stated that the tattoo of a five point crown and the tattoo of the letters
“LK” identified Roman as a member of the Latin Kings and that a tattoo with the number
“25,” and the word “Cal” indicated Roman belonged to the 25th Street and California
Avenue branch of the gang. After Garcia testified, defense counsel asked the State to produce
documents showing Garcia was a gang expert. The trial court denied the request stating, “I
don’t think you need to be an expert to read 25 and Cal ***. I think everybody in the
neighborhood knows the symbolism of the gang symbols depending on where they live and
what they’re about. *** He’s been working 16 years, and does these kinds of cases all the
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time. You could cross-examine him about that if you wish.”
¶ 18 Roman did not testify or present any witnesses. Following closing arguments, the jury
deliberated and found Roman guilty of first degree murder. Zuniga, Roman’s codefendant
was acquitted. In his motion for a new trial, Roman argued, in part, that the trial court erred
in permitting the State to present gang evidence and pictures of Roman’s tattoos. The trial
court denied the motion and sentenced Roman to 32 years in prison. Roman’s motion to
reconsider his sentence was denied. Roman filed this timely appeal.
¶ 19 ANALYSIS
¶ 20 Roman raises five issues on appeal, three involving errors by the trial court and two
involving errors by his defense counsel and the State. The first error deals with the trial
court’s admission of gang-related evidence, namely, testimony from two witnesses that
Roman was a member of the Latin Kings street gang, photographs of Roman’s tattoos, and
testimony from Detective Garcia that the tattoos showed that Roman was affiliated with the
Latin Kings. The other alleged errors involve comments by the trial judge to a potential juror
during voir dire and his compliance with the requirements of Illinois Supreme Court Rule
431(b) (eff. July 2, 2012), the State’s remarks during closing argument, and the effectiveness
of defense counsel in allowing the jury to be given an exhibit showing that Roman’s
codefendants had been convicted in four separate trials. Because we agree with Roman’s first
contention, that the trial court erred in permitting the State to introduce gang-related evidence
during trial we reverse and remand on that basis alone. Further, we also address the trial
court’s questioning of potential jurors during voir dire in an effort to resolve problems that
can arise due to the language of Rule 431(b).
¶ 21 Gang Evidence
¶ 22 Roman contends he was denied his right to a fair trial when the State presented
prejudicial gang evidence that had no probative value in the case. Roman asserts the trial
court erred in finding that the evidence of gang membership substantiated the witnesses’
identifications, because all of the witnesses testified they knew him and his codefendants
from seeing them in the neighborhood over several years. Roman also argues the trial court
erred in finding his gang membership was probative of a motive in the case, because the
State presented no evidence or testimony showing the murder was a gang-related crime.
Roman further contends the trial court erred in permitting the State to show pictures of
Roman’s tattoos and to have Detective Garcia testify that the tattoos were evidence Roman
was a gang member without first qualifying Detective Garcia as an expert. The State
maintains the gang evidence was admissible to strengthen the eyewitnesses’ identification
of Roman and to support its theory of the case. Alternatively, the State asserts that even if
the trial court did err in admitting gang evidence, Roman cannot show he was unfairly
prejudiced by it.
¶ 23 Relevant evidence is “evidence having any tendency to make the existence of a fact that
is of consequence to the determination of the action more or less probable than it would be
without the evidence.” People v. Gonzalez, 142 Ill. 2d 481, 487-88 (1991). Our supreme
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court has held “any evidence which tends to show that an accused had a motive for killing
the deceased is relevant because it renders more probable that the accused did kill the
deceased.” People v. Smith, 141 Ill. 2d 40, 56 (1990). It is the function of the trial court to
weigh the probative value of the evidence against the risk of unfair prejudice it carries; we
will not overturn a court’s decision on that balancing process absent a clear abuse of that
discretion. People v. Johnson, 208 Ill. 2d 53, 102 (2003).
¶ 24 Generally, evidence a defendant was a gang member or involved in gang-related
activities is admissible to show a common purpose or design or to provide a motive for an
otherwise inexplicable act. Smith, 141 Ill. 2d at 58. There may be a strong prejudice against
street gangs, however, so a trial court should take great care when exercising its discretion
to admit gang-related testimony. People v. Davenport, 301 Ill. App. 3d 143, 152 (1998)
(citing People v. Lucas, 151 Ill. 2d 461, 487-89 (1992)). A defendant cannot automatically
be assumed to be guilty based on membership in an undesirable group. People v. Matthews,
299 Ill. App. 3d 914, 923 (1998).
¶ 25 Evidence a defendant is a gang member or is involved in gang activity is admissible only
where there is sufficient proof “membership or activity in the gang is related to the crime
charged.” People v. Strain, 194 Ill. 2d 467, 477 (2000). “To ensure a careful exercise of
discretion, a trial court should require the prosecution to demonstrate a clear connection
between the crimes and the gang-related testimony.” People v. Weston, 2011 IL App (1st)
092432, ¶ 23. Where the State’s theory of gang-related motive is not supported by the
evidence, the only purpose for telling the jury that the crime was gang related could be to
inflame the passion or arouse prejudice against gangs. Smith, 141 Ill. 2d at 62.
¶ 26 The trial court found and the State asserts here that evidence regarding Roman’s
membership in the Latin Kings was admissible because it strengthened the witnesses’
identifications of Roman as one of the perpetrators. For support, the State relies on People
v. Gonzalez, 142 Ill. 2d 481 (1991). In Gonzalez, defendant was convicted of armed robbery
and aggravated battery for stealing the victim’s bike and punching the victim in the face.
Gonzalez, 142 Ill. 2d at 485. The victim told the police the defendant hung out with a group
of boys the victim knew were members of the Spanish Cobra street gang, because he saw
them flashing gang signs to a passerby. Id. The police showed the victim an album with
photographs of 75 to 100 Spanish Cobra gang members, and the victim identified defendant.
Id. at 486. The appellate court reversed defendant’s conviction and remanded for a new trial,
finding the evidence of street-gang activity irrelevant and, further finding that certain
comments about gangs made by the prosecutor in closing argument denied the defendant a
fair trial. Id. at 487.
¶ 27 In reversing the appellate court, the supreme court noted that the reliability of the
victim’s identification of defendant as the offender was the central issue in the case. Id. at
488. The court found that the gang evidence was relevant to the events leading to defendant’s
identification and arrest. Id. The court stated, “[t]he gang-related evidence was relevant to
the jury’s consideration of the steps in the investigation, and of the circumstances
culminating in the defendant’s arrest as the offender.” Id. The court further found that
because the probative value of the evidence outweighed its prejudicial effect, the gang-
related evidence was “admissible for the purpose of showing ‘the procedures and
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circumstances leading to the arrest and identification of the defendant ***.’ ” Id. at 489.
¶ 28 This case is not analogous, however, because although two eyewitnesses, Garcia and
Flores, testified they knew Roman to be a member of the Latin Kings street gang, that was
not the basis for any of the eyewitnesses’ identifications of Roman as one of the perpetrators
in the crime. Garcia and Ortiz said they knew Roman and his codefendants because they had
seen them in the neighborhood for four or five years. They both knew the men well enough
to state that some of the men were cousins, that their uncle lived in their building, and that
their grandmother lived in the neighborhood. They were also able to identify one of the
codefendants, Daniel Roman, by his voice. Similarly, Flores testified that she saw Roman
and his codefendants in the neighborhood and met several of them through her boyfriend. In
addition, all three witnesses identified the defendant in a photo array, a lineup, and in court.
Roman’s membership in a gang was not the reason they were able to identify him, and given
the inflammatory nature of gang-related evidence, the trial court should not have permitted
the State to introduce this testimony.
¶ 29 The error in permitting witnesses to testify about Roman’s gang membership was
exacerbated when the State introduced into evidence pictures of defendant’s tattoos and
elicited testimony from Detective Garcia that the tattoos showed that Roman was a member
of the Latin Kings. Although the State asserts the pictures help corroborate the eyewitnesses’
identifications of Roman and his codefendants, none of the witnesses mentioned Roman’s
tattoos in their testimony or suggested the tattoos were an aid to identifying him as one of the
perpetrators. Given that the photographs were not relevant to the witnesses’ identification
of the perpetrators, they could only serve to inflame the jury, and therefore, the trial court
erred in permitting the State to present them at trial.
¶ 30 The trial court also erred in finding the gang evidence was admissible because it
supported the State’s theory that the murder was gang related. The State argues the gang
evidence was permissible because it helped establish a motive for an otherwise inexplicable
act. See Smith, 141 Ill. 2d at 58 (gang-related activity is admissible to show common purpose
or design, or to provide a motive for an otherwise inexplicable act). The State asserts the
perpetrators killed the factory employee to avenge a perceived slight of the Latin Kings when
factory workers gave shelter to two men a few weeks earlier. The State, however did not
present any evidence at trial to support this theory of the case. First, neither Roman nor any
of his co-defendants were charged with any gang-related offenses in connection with the
murder. Second, although the State elicited testimony from Sylvia Ortiz and Pedro Martinez
about the December 4 incident outside the factory, it failed to present evidence that the
December 24 murder was in retaliation for a perceived slight to the Latin Kings. Finally,
there was no evidence that either incident was gang related, as the eyewitnesses did not
testify that the perpetrators flashed gang signs, yelled gang slogans, or did anything to
indicate they were members of a gang during the December 4 incident or the December 24
murder.
¶ 31 During oral arguments, the State asserted that Roman’s gang membership was relevant
to show that the codefendants, who were all members of the same gang, hung out together
and therefore, were likely to have committed this crime together. At trial, several witnesses
testified that Roman and the codefendants were frequently seen hanging out together in the
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neighborhood. In fact, some witnesses testified that one of Roman’s codefendants was his
brother and two of his codefendants were his cousins. Evidence that they were also members
of a gang was not necessary to establish that the perpetrators knew each other and may have
committed this crime together. Therefore, in the absence of any evidence that the crime was
gang related and given the highly prejudicial nature of gang evidence, the trial court erred in
finding it was admissible to support the State’s theory of the case.
¶ 32 Following oral argument, the State filed a motion to cite People v. Morales, 2012 IL App
(1st) 101911, as additional authority on the issue of gang evidence. Morales was an appeal
by one of Roman’s codefendants, Ismael Morales, following his conviction for the murder
and robbery of Reyes. Like Roman, Morales argued the trial court erred by permitting
evidence of his gang membership by one of the eyewitnesses and two police officers, because
it gave rise to unfair prejudice that substantially outweighed the probative value of the
evidence. Morales, 2012 IL App (1st) 101911, ¶ 37. Unlike Roman, Morales did not
challenge the trial court’s ruling that the gang evidence tended to strengthen the
eyewitnesses’ identification of the perpetrators but only that the gang evidence was
unnecessary. Id. ¶ 42. The Morales court disagreed and affirmed the trial court, finding that
the probative value of the limited gang evidence on the identification issue outweighed the
danger of unfair prejudice. Id. ¶ 55. The court also found that the trial court did not abuse its
discretion in permitting the police officers to testify about the perpetrators’ possible gang
membership because the testimony was limited and was part of a narrative explaining their
investigation and why some witnesses were reluctant to speak with them. Id. ¶ 48.
¶ 33 The State urges this court to adopt the rationale in Morales and affirm the trial court’s
decision to admit evidence of gang membership. Morales is distinguishable in several
important respects, however. First, the trial court in Morales gave a limiting instruction,
telling the jurors “ ‘you are getting this information not just to brand people as [gang
members] or anything else, but you’re getting this because this is [the] basis of the witness
identification. *** [That] is why you’re being allowed to hear about it. That’s why its
relevant as it goes to part of the reason he is able to make identifications in court in this
trial.’ ” Morales, 2012 IL App (1st) 101911, ¶ 14. In affirming the trial court, the Morales
court mentioned this limiting instructions several times, noting that it “ameliorate[d] the
prejudice arising from the gang evidence.” Id. ¶ 49. In Roman’s trial, as the State concedes,
the jurors received no similar instruction informing them of the limited purpose for admitting
the gang evidence that might ameliorate the prejudicial effect of that evidence.
¶ 34 The Morales court also emphasized that the gang evidence was limited in scope and
offered solely for the purpose of identification and to explain why some witnesses were
initially reluctant to come forward and speak to the police. Id. ¶ 48. Here, the evidence was
not nearly as limited. The jury was shown pictures of tattoos on Roman’s chest and Detective
Garcia was permitted to describe each and explain how they were evidence that he was a
gang member. This evidence and testimony was not offered to support any eyewitnesses’
identifications. Nor was it offered as part of the police investigation.
¶ 35 We further note that unlike in Morales, the gang evidence was not necessary to explain
why the eyewitnesses were initially reluctant to talk to the police. Garcia and Ortiz testified
they were afraid to talk to the police because the defendants’ families lived down the block
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and their uncle lived in their building. Therefore, evidence of gang membership was not
necessary to explain their delay in coming forward on the record before us. Given the
absence of a limiting instruction or a connection between Roman’s gang membership and the
reluctance of the witnesses to speak with police, Morales does not apply here.
¶ 36 The State contends that even if the gang evidence was erroneously admitted, the error
was harmless and the conviction should stand because the evidence of Roman’s guilt was
overwhelming. “The erroneous admission at trial of *** gang evidence does not
automatically warrant reversal.” People v. Easley, 148 Ill. 2d 281, 330 (1992). This error “is
harmless where the court is satisfied beyond a reasonable doubt that the error did not
contribute to the defendant’s conviction.” Davenport, 301 Ill. App. 3d at 153. “The effect of
inflammatory evidence depends upon the circumstances of the case.” Easley, 148 Ill. 2d at
330.
¶ 37 The State’s evidence at trial consisted primarily of three eyewitnesses who identified
Roman as one of the perpetrators in the December 24 murder, which occurred in a parking
lot across the street at about 1 a.m. There was no physical evidence tying Roman to the
crime. We cannot say beyond a reasonable doubt that the gang-related evidence admitted at
trial, including Flores’ testimony that Roman was a member of the Latin Kings, Garcia’s
testimony that he frequently saw Roman and his codefendants flash gang symbols and yell
at cars in the neighborhood, as well as his display of the Latin Kings’ gang sign and slogan
in court, and Detective Garcia’s testimony regarding the gang significance of Roman’s
tattoos, pictures of which were shown to the jury, did not contribute to Roman’s conviction
in the absence of physical evidence tying him to the crime. Therefore, given the strong
prejudice against street gangs and the likelihood that the effect, if not the purpose, of the
gang-related evidence was to stir the emotions of the jury, combined with the absence of any
relevance to a motive or the witnesses’ identifications of the perpetrators, we find the
admission of this evidence was reversible error.
¶ 38 One further point, though minor in comparison to the preceding issues. The trial court
refused to grant defense counsel’s request to remove the “Gang Unit” sticker from the State’s
courtroom cart, despite the State’s offer to do so. The trial court’s refusal was unreasonable.
The presence of the “Gang Unit” sticker on the cart has the potential to negatively impact the
defense given the strong prejudice against street gangs. Whether the case involves gang
affiliation or not, fairness dictates the cart be identified with a sticker that does not transmit
a potentially prejudicial message, especially when an innocuous alternative is so easy. Just
as gang-related symbols and regalia are prohibited in court, so should the “Gang Unit”
sticker.
¶ 39 Supreme Court Rule 431(b)
¶ 40 Roman argues the trial court erred by failing to disqualify biased jurors who said during
voir dire that they could not adhere to the four principles set forth in Illinois Supreme Court
Rule 431(b) (eff. July 1, 2012). The rule codifies the Illinois Supreme Court’s holding in
People v. Zehr, that four inquiries must be made of potential jurors in a criminal case that
“ ‘go[ ] to the heart of a particular bias or prejudice which would deprive [a] defendant of his
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right to a fair and impartial jury.’ ” People v. Zehr, 103 Ill. 2d 472, 477 (1984) (quoting
People v. Zehr, 110 Ill. App. 3d 458, 461 (1982)). Rule 431(b) in effect at the time of
Roman’s trial provided as follows:
“(b) The court shall ask each potential juror, individually or in a group, whether that
juror understands and accepts the following principles: (1) that the defendant is presumed
innocent of the charge(s) against him or her; (2) that before a defendant can be convicted
the State must prove the defendant guilty beyond a reasonable doubt; (3) that the
defendant is not required to offer any evidence on his or her own behalf; and (4) that the
defendant’s failure to testify cannot be held against him or her; however, no inquiry of
a prospective juror shall be made into the defendant’s failure to testify when the
defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to
specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b)
(eff. May 1, 2007).
¶ 41 After Roman’s trial, Rule 431(b) was amended, in relevant part, to provide as follows:
“The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts *** that if a defendant does not testify it cannot be held against
him or her; however, no inquiry of a prospective juror shall be made into the defendant’s
decision not to testify when the defendant objects.” Ill. S. Ct. R. 431(b)(4) (eff. July 1,
2012).
¶ 42 In addressing the entire panel of potential jurors, the trial judge explained all four Zehr
principles and asked if anyone had a problem with them. No hands were raised. When
addressing the prospective jurors individually, the trial judge asked them essentially the same
question regarding the fourth Zehr principle in a manner closer to the 2012 language: “You
will not hold it against either of them should they choose not to testify?” Two prospective
jurors, who were seated on the jury answered “No,” while two others who were chosen as
alternate jurors answered “Yes” and “Right.” Roman argues that both “no” and “yes” cannot
be appropriate answers to the same question and this supports his assertion that a biased juror
sat on his jury. Despite his failure to raise the issue earlier, he requests that we review the
issue for plain error because it affected the fairness of his trial. See People v. Piatkowski, 225
Ill. 2d 551, 565 (2007) (plain error rule applies when a clear and obvious error occurred and
the evidence is so closely balanced that the error threatened to tip the scales of justice against
defendant or the error is so serious that it affected the fairness of the defendant’s trial). We
disagree.
¶ 43 Although prospective jurors gave different answers to the same question, this highlights
a problem with the language of Rule 431(b) and is no evidence of bias. To suggest that by
answering no, the juror who was seated on the jury was informing the court she would hold
it against Roman if he did not testify and that defense counsel did not immediately object
defies credulity. A more reasonable explanation is that the double negative language in the
rule caused confusion for the potential jurors, who were trying to inform the trial judge that
they would not hold it against Roman if he failed to testify, but answered the question both
in the affirmative and the negative.
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¶ 44 Also, while the presence of a double negative in the transcript raises an ambiguity, often
in informal speech what is referred to as double negatives are used without causing confusion
or misunderstanding. The reason for this is that speakers are in a position to observe one
another’s tone of voice, gestures, facial expression, and other oral/visual characteristics, as
in this case.
¶ 45 Legal grammarian and author of the leading books on legal writing, Bryan Garner, in A
Dictionary of Modern Legal Usage 584 (2d ed. 1995), refers to a “negative upon negative”
as “colliding negatives.” He observes that lawyers have trouble “decoding” colliding
negatives; a supreme court rule should be written to avoid the need of anyone resorting to
“decoding.”
¶ 46 Removal of the language regarding a defendant’s “failure to testify” improved the Rule
but in the process the drafters created colliding negative language that can confound the
record. An amendment would reduce the likelihood of juror confusion in the future by
eliminating the colliding negative. It also should provide clarity to reviewing courts that are
asked to determine whether a trial court has complied with the rule.
¶ 47 Given our determination that Roman’s conviction must be reversed due to the admission
of irrelevant and prejudicial gang evidence, we need not address the other issues raised by
him on appeal.
¶ 48 CONCLUSION
¶ 49 For the reasons set forth above, we reverse Roman’s conviction and remand his cause for
a new trial, as provided in this decision.
¶ 50 Reversed and remanded.
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