No. 1-14-3741 Opinion filed August 1, 2017 Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) Appeal from the Circuit Court ) THE PEOPLE OF THE STATE OF ILLINOIS, of Cook County. ) ) Plaintiff-Appellee, ) No. 11 CR 6292 ) v. ) ) JOE ROSADO, The Honorable ) Maura Slattery Boyle, ) Defendant-Appellant. Judge, presiding. ) )

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.

OPINION

¶1 Before this case was tried, a jury acquitted Joe Rosado of delivering, on March 29, 2011,

a controlled substance to an undercover police investigator. After the acquittal, before a different

jury but the same judge, Rosado was tried in this case for delivering a controlled substance to the

same undercover police investigator on March 23, six days before March 29. The State was

allowed to present testimony that Rosado had sold drugs on March 29; however, Rosado was not

allowed to tell the jury of his acquittal. On appeal, Rosado challenges both evidentiary rulings.

We find that the trial court abused its discretion: the March 29 testimony was not proper other- 1-14-3741

crimes evidence, and Rosado should have been allowed to inform the jury of his acquittal. We

reverse his conviction and remand for a new trial.

¶2 BACKGROUND

¶3 In 2011, Rosado was arrested for and charged with a series of drug transactions that

allegedly took place within a two-week period in March 2011. In case No. 6287, Rosado was

charged with selling drugs on March 18, 2011. In this case (case No. 6292), he was charged with

delivering 15 to 100 grams of cocaine within 1000 feet of a high school on March 23, 2011.

Finally, in case No. 6291, he was charged with selling drugs on March 29, 2011. He was arrested

on April 1, 2011.

¶4 The State elected to try the case involving the March 29 transaction first. Before trial, the

State moved to admit evidence of both the March 18 and the March 23 incidents as “other

crimes” evidence. The trial court denied this motion, reasoning that the evidence was more

prejudicial than probative and that the jury might convict Rosado based on the other-crimes

evidence. At the jury trial, Rosado argued that his brother, Javier Moreno, had sold the drugs;

Rosado was acquitted.

¶5 Before trial in this case, the State nevertheless moved to admit evidence of the March 29

incident as “other crimes” evidence, to show identity. The trial court admitted the evidence over

Rosado‘s objection, without referencing whether the evidence was more probative than

prejudicial. The trial court also denied Rosado’s request to inform the jury that he had been

acquitted of selling drugs on March 29.

¶6 During opening argument, the State referred to the March 29 drug sale; Rosado’s counsel

then told the jury that it should not consider the March 29 sale, but concern itself with the

charges at issue.

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¶7 Officer Emerico Gonzalez testified that on March 23, 2011, he was assigned to purchase

narcotics from Rosado. Gonzalez, wearing civilian clothes and driving a civilian vehicle, was the

“undercover” officer, while other police officers performed surveillance and enforcement.

Gonzalez had a recording device, marked money with which to buy the drugs, and a cell phone

number that had been given to him by Rosado.

¶8 When Gonzalez entered the restaurant, a woman greeted him, and he told her that he was

looking for Jose. She corrected him and told him he was looking for “Joe Joe.” Gonzalez did not

see Rosado in the restaurant, so he asked the woman if she could call Joe Joe. The woman did

but told Gonzalez that Joe Joe was not answering the phone. Gonzalez called the number he had

been given, but no one answered. The woman made a second phone call and held a conversation.

She informed Gonzalez that Joe Joe would be there around 3. Gonzalez walked out of the

restaurant to his car and then received a call from Rosado. A recording of this call and a

transcript (translated into English from Spanish) were presented to the jury:

“Gonzalez: I wanted to ask you can we do something today?

Answer: What do you want[,] the same thing?

Gonzalez: Yea yea, the same thing you gave me before for 800.

Answer: Okay can you give me five minutes I’ll call you back, in five minutes.

Gonzalez: Five minutes, okay I’ll be waiting for you inside then.”

¶9 Gonzalez went back into the restaurant and sat down at a table. There were two or three

people in the restaurant. Rosado entered, wearing a brown jacket and light colored pants, and

gestured to Gonzalez to wait, then went into the kitchen area. Gonzalez saw Rosado’s back.

After one or two minutes, Rosado gestured for Gonzalez to follow him into the men’s restroom.

There, Rosado placed a plastic bag containing cocaine on the counter, and Gonzalez gave

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Rosado $800 in marked bills. Gonzalez could see the side and front of Rosado’s face, from two

or three feet away. Gonzalez placed the bag in his waistband, and both men walked out.

Gonzalez returned to his car and notified the others of the purchase. The contents of the bag

tested positive for cocaine. At 4:25 p.m., Gonzalez viewed a photo array and identified Rosado

as the man who had sold him the drugs. Rosado was arrested on April 1, but Gonzalez did not

know if any of the marked bills had been recovered after the arrest.

¶ 10 Gonzalez knew Rosado’s brother, Javier Moreno, because he also was investigating

Moreno for drug sales. Both brothers were Hispanic with black hair, brown eyes, and goatees.

Gonzalez compared pictures of both men and testified that their hairlines and facial hair were

slightly different and that Rosado is slightly older and taller than Moreno. Both brothers spoke

Spanish but had different voices and mannerisms and different cell phone numbers. Gonzalez

testified that the man he spoke to and purchased drugs from on March 23 was Rosado, not

Moreno, because Moreno had a tattoo on his hands and the man in the restroom did not have that

tattoo. Moreno’s picture was not in the photo array viewed by Gonzalez.

¶ 11 Gonzalez went on to describe an undercover drug purchase made six days later, on March

29. This transaction took place in Gonzalez’s car outside the same restaurant, and he bought 4½

ounces of cocaine from Rosado for $3100. He denied purchasing drugs from Moreno on March

29.

¶ 12 Gonzalez stated that he had seen Rosado and purchased drugs from him before March 23,

but he did not remember the date. It was possible that he had talked to Moreno on March 24, 25,

or 26 and possibly bought drugs from Moreno on March 24 and 26.

¶ 13 Officer Robert Ramirez testified that he was an enforcement officer during the March 23

drug purchase, stationed near the restaurant. After the purchase, Ramirez used a police computer

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to generate a photo array. Ramirez knew that Rosado’s picture was in the photo array and knew

which photo was Rosado’s. He presented the array to Gonzalez, who identified Rosado. Ramirez

also worked on the March 29 investigation but did not present a photo array to Gonzalez after

that purchase.

¶ 14 Officer David Torres testified that on March 23, he was working as a surveillance officer.

Torres parked in a car at the northwest corner of the intersection (kitty-corner from the

restaurant) with the car facing away from the restaurant. Torres remained in his car throughout.

He saw Gonzalez arrive in a civilian car and go into the restaurant, then return to his car a few

minutes later. Gonzalez had a phone conversation, then re-entered the restaurant. A few minutes

later, a man with a goatee and wearing a brown jacket and light colored pants entered the

restaurant. Torres saw the man’s profile and identified him as Rosado. A few minutes later,

Torres heard a radio report from Gonzalez that the drug transaction had been successful. Torres

also testified that he had worked as a surveillance officer on March 29. He testified that he did

not see Moreno on March 29 or March 23, did not see Rosado on March 29, and did not know if

Moreno had been in the restaurant on March 23.

¶ 15 Officer Joseph Watson testified that during the March 29 drug purchase, he was assigned

to surveillance and was parked on the north side of Cermak Road, across the street from the

restaurant. Watson saw Rosado driving a white Ford Expedition and turning off Cermak onto

Christiana Avenue. Gonzalez had already parked outside the restaurant and gone inside. Rosado

parked on Christiana and also went inside; Watson could see Rosado’s back but did not

remember what Rosado wore. After a few minutes, Gonzalez and Rosado left the restaurant and

got into Gonzalez’s car; then Rosado went back into the restaurant, and Gonzalez alerted the

other officers of a drug purchase. Watson could not see what had occurred in Gonzalez’s car.

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Watson also worked as a surveillance officer on March 23, again parked across the street from

the restaurant. He denied seeing Moreno on either March 23 or March 29.

¶ 16 During closing arguments, the State referred to the March 29 purchase, arguing that the

purchase identified Rosado because of its similarities to the March 23 purchase. Rosado’s

counsel argued that Gonzalez had little opportunity on March 29 to successfully identify Rosado

and that Gonzalez had confused Rosado for his brother, Moreno, who was being investigated

during the same time frame. The trial court instructed the jury on the other-crimes evidence:

“Evidence has been received that the defendant has been involved in an offense other than that

charged in the indictment. This evidence has been received on the issue of the defendant’s

identification and may be considered by you only for that limited purpose. It is for you to

determine whether the defendant was involved in that offense, and, if so, what weight should be

given to this evidence on the issue of identification.”

¶ 17 The jury found Rosado guilty. In his posttrial motion, Rosado argued that the trial court

erred in admitting evidence of the March 29 drug sale and in disallowing evidence of his

acquittal for that sale. The trial court denied the motion and sentenced Rosado to seven years of

imprisonment. (Rosado pleaded guilty to the March 18 drug sale.)

¶ 18 STANDARD OF REVIEW

¶ 19 We review the admission of the other-crimes evidence and the trial court’s decision not to

admit evidence of the acquittal for an abuse of discretion. See People v. Wilson,

(2005). An abuse of discretion occurs when a trial court’s decision is “arbitrary, fanciful, or

unreasonable to the degree that no reasonable person would agree with it.” (Internal quotation

marks omitted.) See People v. Lerma,

.

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¶ 20 ANALYSIS

¶ 21 Admission of Other-Crimes Evidence

¶ 22 Rosado first contends that the trial court abused its discretion in admitting evidence of the

March 29 drug sale as other-crimes evidence. Other-crimes evidence is inadmissible to show a

defendant’s propensity to commit crime because a jury might convict the defendant not based on

the evidence adduced at trial, but on the notion that defendant deserves punishment. People v.

Placek,

(1998). Such evidence can be admitted, however, to prove intent,

modus operandi, identity, motive, absence of mistake, or any relevant, material fact other than

propensity. People v. Donoho,

(2003). But even when this evidence is

admissible, the trial court still must weigh its prejudicial effect versus its probative value and

exclude it if its prejudicial effect substantially outweighs its probative value. Placek,

. The State’s proof of the other crime need not be beyond a reasonable doubt “but must be

more than a mere suspicion.” People v. Davis,

(1993). And “the mere

fact of acquittal does not necessarily mean that [the] defendant did not commit the alleged other

offense.” People v. Baldwin,

.

¶ 23 The State argues that Officer Gonzalez’s identification of Rosado was the core issue at

trial and the March 29 evidence “lent credibility to the officers’ identification of [Rosado],

showed that a relationship between the parties was established, and gave a more complete picture

of the crime charged.” In support, the State directs us to People v. Vazquez,

(1989). But Vazquez actually illustrates the evidentiary problem with the State’s argument.

¶ 24 Vazquez was charged with two counts of selling drugs, once on June 12 and another sale

on July 2. Vazquez,

. The State chose to try Vazquez for the July 2 sale

and used evidence of the June 12 sale.

The Vazquez court accepted this evidence to refute

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Vazquez’s defense that he had not been involved in the July 2 sale, to bolster the State’s

identification of Vazquez as the seller, and to show the relationship between buyer and seller.

.

¶ 25 What occurred here is precisely backwards from Vazquez. There, the evidence used was

of a prior sale. The officers could successfully identify Vazquez on July 2 and were able to buy

drugs with ease because they recognized him from June 12 and had already established a buyer-

seller relationship. Here, the State submitted evidence from a later sale, on March 29. But the

officers did not explain how their ability to recognize Rosado on March 23, both in person and in

the photo array that same day, was somehow increased based on what they saw six days later on

March 29. Further, the March 29 evidence could not explain how the buyer-seller relationship

had already been established on March 23. (The same logical problem applies to another case

cited by the State, People v. Bowman,

(1992), where a witness testified that

she recognized the defendant from a previous drug sale.)

¶ 26 The trial court abused its discretion in admitting this evidence because it could not bolster

identification (the only basis on which it was admitted) and had no other relevance; it also was,

as such, more prejudicial than probative.

¶ 27 Evidence of Rosado’s Acquittal

¶ 28 Rosado further argues that the trial court erred in not allowing him to inform the jury that

he already had been tried and acquitted of the March 29 drug sale. Rosado relies primarily on

People v. Ward,

.

¶ 29 Ward was accused of sexually assaulting two women, M.M. and L.S. Id. ¶¶ 5-6. Ward

was first tried for assaulting L.S. but was acquitted after arguing that L.S. had consented. Id. ¶ 5.

In the M.M. trial, the State asked to admit evidence of the assault on L.S. under section 115-7.3

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of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)), which allows

admission of prior sexual crimes to show propensity. Id. ¶ 7. The trial court allowed this

evidence but ruled that Ward’s counsel could not present evidence that he had already been tried

and acquitted of assaulting L.S. Id. ¶ 10. L.S. testified at the M.M. trial and briefly referred to the

fact that she had testified before. Id. ¶ 14. The jury was instructed multiple times that it must

decide whether Ward had committed the offense against L.S. and how much weight to give to

that evidence. Id. ¶ 15.

¶ 30 The Illinois Supreme Court held that the trial court abused its discretion in excluding the

evidence of Ward’s acquittal. The supreme court determined that the acquittal was certainly

probative of the issue, since “the complete absence of any reference to the outcome in that case

severely restricted defendant’s ability to convey a complete context for L.S.’s allegations.” Id.

¶ 39. And the potential for unfair prejudice was high, given the inflammatory nature of the

allegations, and the jury instruction that Ward had been “involved in an offense” implied that

Ward had been charged, and perhaps convicted, of assaulting L.S. (Internal quotation marks and

emphasis omitted.) Id. ¶¶ 44-45. Finally, the Court held that the error was not harmless, as the

propensity evidence was quite important in a case where the sole issue in dispute was Ward’s

consent defense. Id. ¶ 49.

¶ 31 The State argues that Ward is distinguishable because the evidence of the March 29 drug

sale was not overly inflammatory and was used for identification purposes instead of propensity

and that the acquittal was not obviously relevant to the identification. Ward indeed differs,

particularly in that the other-crimes evidence in Ward was admitted as propensity evidence under

a specific statute, as opposed to this case, where the evidence could only be admitted as

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something other than propensity under the standard rules of evidence. And the evidence of the

March 29 transaction was certainly not inflammatory as was L.S.’s description of sexual assault.

¶ 32 But nowhere does Ward limit its holding to prior cases of sexual assault admitted under

section 115-7.3 or to cases involving emotional, wrenching testimony from sympathetic victims.

Ward’s holding, which enforces the familiar principles of relevance, probative value, and unfair

prejudice, applies with equal force here.

¶ 33 The State argues that “the acquittal was not directly relevant to identity.” We don’t know

whether that is true, as we will never know the jury’s reasoning. But in both the March 23 and

March 29 cases, the central question was identification, enough to invoke Ward’s holding.

¶ 34 Rosado relies on People v. Bedoya,

(2001), where Bedoya’s

conviction was reversed because the jury was not told that Bedoya had been acquitted of

aggravated discharge of a firearm, though that charge was used as other-crimes evidence in a

subsequent trial. The State attempts to distinguish Bedoya by arguing that the jury instruction

given to Rosado’s jury was less prejudicial than that given in Bedoya. Contrary to the State’s

representation, the jury in this case appears to have been given the same instruction as in Bedoya,

the pattern instruction: “Evidence has been received that the defendant has been involved in an

offense other than that charged in the indictment,” and the jury must determine “whether the

defendant was involved in that offense.” Illinois Pattern Jury Instructions, Criminal, No. 3.14 (3d

ed. 1992). Like the Bedoya court, we also are concerned that “[t]he jury could have been left

with the false impression that those ‘offenses’ were alive and pending.” Bedoya,

. The acquittal definitely relates to one of the tasks given by the instruction: determining

whether Rosado was, in fact, involved in the March 29 offense.

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¶ 35 The trial court should have allowed Rosado to introduce evidence of his acquittal. The

acquittal was relevant, in that it made “the existence of any fact that is of consequence to the

determination of the action more probable or less probable.” Ill. R. Evid. 401 (eff. Jan. 1, 2011).

And it was highly probative on the crucial issue of identification. Did the police officers

(especially Officer Gonzalez) recognize the man who sold the drugs on March 23 as Rosado? Or

did they have him mixed up with his brother Moreno, who was also being investigated by the

same officers during the same time period? The evidence of the March 29 acquittal would have

provided the jury with a “complete context” for Officer Gonzalez’s allegations that Rosado had

sold him drugs that day—especially in light of Officer Gonzalez’s vehement protestations that

Rosado, not Moreno, had sold the drugs on March 29. The acquittal would have strongly

impeached Officer Gonzalez’s testimony, and he was the most consequential witness against

Rosado—the only officer who saw the drug seller up close.

¶ 36 When admitting other-crimes evidence, we often warn trial courts not to allow a “mini-

trial” on the other crime, since that could confuse the jury and waste time. Ward,

. But if a trial court is going to admit it, the trial court must do so equitably. Rosado

should have been allowed to tell the jury about the acquittal.

¶ 37 Beyond these timeworn evidentiary rules, a question of basic fairness must be dealt with.

The State chose to try the March 29 case before the March 23 case. Rosado, for whatever reason,

was acquitted. And yet, the State was allowed to proceed with the March 23 case as though the

acquittal never happened and re-present the March 29 evidence to a second jury, forcing Rosado

to defend himself again. Further, the trial court allowed the State to use other-crimes evidence in

this case after having denied leave to do so in the March 29 case, concluding there that the

evidence was more prejudicial than probative. The record does not reveal a sound reason for why

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the trial court made an about-face and ruled to the contrary here. Both in terms of logic and

fairness, the trial court’s decision was “unreasonable” and an abuse of discretion.

¶ 38 The Errors Are Not Harmless

¶ 39 The State argues that overwhelming evidence of guilt shows that any errors were

harmless beyond a reasonable doubt. See People v. Patterson,

(2005). But

the State’s brief then equates “overwhelming” evidence with evidence that is “not closely

balanced.” “Closely balanced” is part of a plain error analysis, not harmless error. People v.

Thompson,

(2010). Many attorneys (and judges, for that matter) find this

area of law confusing, and we will not further muddy the waters by importing “not closely

balanced” into harmless error analysis.

¶ 40 Improper admission of other-crimes evidence is harmless if the defendant has not been

prejudiced or denied a fair trial, and the State must show beyond a reasonable doubt that the

result would have been the same without the improper admission. People v. Gregory,

. We will consider whether the other crimes evidence was a “material

factor” in the conviction.

¶ 41 The State has not shown that these errors were harmless beyond a reasonable doubt.

Officer Gonzalez spoke with someone who answered Rosado’s cell phone and discussed a drug

transaction, but the conversation was short, and the other party did not identify himself. None of

the other officers saw the drug seller up close; they were parked on the opposite side of the

intersection from the restaurant. The case depended on Officer Gonzalez, who had also been

investigating Moreno at the same time and admitted he could not remember which days he had

bought drugs from Moreno. There was no physical evidence tying the drugs or the money to

Rosado. Officer Gonzalez’s testimony might have been sufficient to support a conviction, but

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that is not the same thing as “overwhelming” evidence. See People v. Hogan,

(2009) (finding evidence was sufficient to support conviction, but not overwhelming for

harmless error analysis). So the March 29 evidence was a “material factor” in the jury’s decision.

¶ 42 Rosado is entitled to a new trial. The case is remanded to the presiding judge of the

criminal division of the circuit court with instructions that the case be assigned to a different

judge for any further proceedings. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (listing powers

of reviewing court).

¶ 43 Reversed and remanded with directions.

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