People v. Ramos

2018 IL App (1st) 151888

103 N.E.3d 427

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Juan RAMOS, Defendant–Appellant.

No. 1–15–1888

Appellate Court of Illinois, First District, SIXTH DIVISION.

March 30, 2018

Michael J. Pelletier, Patricia Mysza, and Sharon Goot Nissim, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Brian A. Levitsky, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 After a joint jury trial with co-defendant Saul Sandoval, defendant Juan Ramos was convicted of armed robbery with a firearm and sentenced to 29 years in prison.¹ Critical to the State's case was historical cell site analysis (HCSA) evidence which was presented to the jury in the form of testimony from a detective. We find that this evidence was inadmissible hearsay and was prejudicial. We reverse defendant's conviction and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 In June 2015, the State charged defendant by indictment with, among other things, one count of armed robbery. 720 ILCS 5/18–2(a)(2) (West 2014). The gist of the indictment was that defendant robbed Francisco Vivas of jewelry while brandishing a firearm. The case proceeded to a jury trial.

¶ 4 At trial, 71–year–old Francisco Vivas testified that on August 3, 2014, he went to Swap–O–Rama, a flea market located at 42nd Street and Ashland Avenue in Chicago, to sell jewelry. Around 4:30 p.m., Vivas left and drove to the Berwyn Fruit Market, a grocery store on Harlem Avenue in Berwyn, Illinois. To travel to the Berwyn Fruit Market from Swap–O–Rama, Vivas took Ashland Avenue to Interstate 55 (I–55), exited I–55 at Harlem Avenue, and proceeded north on Harlem Avenue until reaching the destination. After completing that stop, Vivas drove to Kathleen Snyder's house in Riverside, Illinois, some 1.5 miles away from the Berwyn Fruit Market, to drop off some jewelry.

¶ 5 When Vivas arrived at Snyder's house, two men approached him from behind and attacked him. One of the men pulled Vivas's shirt over his head, and the other took his car keys, opened his car, and removed several bags containing gold jewelry. At that point, Snyder came outside and saw that Vivas was under attack. Vivas heard Snyder yelling and saw one of the men point a gun at her and tell her to "shut up."

¶ 6 Kathleen Snyder testified that she saw Vivas pull into her driveway around 5:30 p.m. When she walked outside to greet him, she heard him saying "call the police" and saw a person, whom she later identified at trial as defendant, beating Vivas's head against one of her car's tires. Snyder also saw another man, whom she later identified at trial as Sandoval, a little further away "dancing around or something." Snyder testified that the attackers had t-shirts covering their faces like masks, so that only their eyes and the middle portion of their faces were visible. Snyder asked defendant and Sandoval what they were doing. In response, according to Snyder, Sandoval pointed a gun at Snyder and said, "[t]his doesn't concern you, bitch.’ " They fled in a van shortly thereafter.

¶ 7 Two days later, Vivas and Snyder went to the police station to view a lineup. When the subjects were first presented, their faces were covered with t-shirts so that only their eyes and the middle portion of their faces were visible, similarly to how the attackers appeared during the robbery. However, Snyder told a police officer that one of the suspects had a goatee and asked that the suspects lower their masks. Snyder then saw that one of the men had a goatee. That man was defendant, whom Snyder informed the police was the person she saw assaulting Vivas. Snyder later identified Sandoval as the person who pulled a gun on her based on the fact that he had "goofy" eyes. Vivas did not make an identification because his head had been covered by his own shirt during much of the attack. However, on August 8, Vivas identified two pieces of jewelry—an earring and a bracelet—that the police recovered during their investigation which he claimed were taken during the robbery.

¶ 8 Detective Frank Lara testified that he worked for the Riverside police department and that he assisted with the robbery investigation. Detective Lara testified that he interviewed Snyder at her home. After that conversation, he explained that he "was looking for two male Hispanics" who had t-shirts wrapped around their heads and faces and "were between 5'8? and 5'10? and * * * had medium builds."

¶ 9 The following day, Detective Lara went to the Berwyn Fruit Market. There, he met with the store manager and viewed surveillance footage of the store's parking lot. The video showed that at 5 p.m., a white Acura driven by Vivas pulled into the lot and parked. Vivas exited his vehicle and entered the store. A silver SUV then drove down the parking aisle towards the store, passed Vivas's car, and entered the parking lot of an O'Reilly's Auto Shop located across the street, at which point the SUV parked. Twenty minutes later, Vivas returned to his car, left the parking lot, and began traveling North on Harlem Avenue. When Vivas passed O'Reilly's Auto Shop, the silver SUV exited the parking lot and began traveling north on Harlem Avenue.

¶ 10 Detective Lara checked the SUV's license plate number and learned that it was registered to Rene Abeja. That lead ultimately led Detective Lara to a residence at 4909 West 30th Street in Cicero, Illinois, where Detective Lara set up surveillance with another police unit. Detective Lara observed three people emerge from a house, walk into an alley, and load furniture and boxes into a white truck. Two of the individuals, whom Detective Lara later identified as defendant and Sandoval, were male Hispanics, between 5'8? and 5'10?, had medium builds, and had shirts wrapped around their heads. A short while later, Detective Lara observed the silver SUV which he had seen on the surveillance footage emerge from the alley, drive past Detective Lara's car, and park. As the SUV passed Detective Lara, he saw Abeja in the driver's seat. At that point, Detective Lara pulled behind the SUV, activated his emergency lights, and detained Abeja. At the same time, officers from the other surveillance unit went into the alley and detained defendant, Moya, and Sandoval. Custodial searches produced a credit card, cell phone, and a gold earring from defendant, and a cell phone from Sandoval.

¶ 11 On August 5, 2014, Detective Lara searched the SUV and recovered a clear necklace and a gold bracelet. Vivas identified the bracelet as belonging to him. Later in the investigation, Detective Lara went to Swap–O–Rama, where he met with the manager and viewed surveillance footage from August 3, 2014. That footage showed Vivas leave Swap–O–Rama around 4:30 p.m., get into his car, and leave traveling south on Ashland Avenue. Then, "within a minute or two," a silver SUV exited the parking lot and also began traveling south on Ashland Avenue. On cross-examination, Detective Lara testified that he was not able to identify the driver of the silver SUV or any of its passengers.

¶ 12 Detective James Lazansky testified that he was a detective with the Riverside police department. As part of the robbery investigation, Detective Lazansky served a search warrant on T–Mobile company seeking historical cell site location data for the cell phones recovered from defendant and Sandoval. Detective Lazansky explained to the jury that "cell tower location history is when you use your cell phone, it pings on a certain tower. So it could be within a short distance of where your phone is hitting." He elaborated: "[w]herever you travel, you're going to go from one tower to another tower to another tower, and your cell phone is going to ping on that certain tower in the area that you're at."

¶ 13 Detective Lazansky then explained that in response to the warrant, "T–Mobile gave us a spreadsheet of all the latitudes and longitudes and dates and times of where the cell phone towers were hitting." Detective Lazansky stated that the T–Mobile records for defendant's phone did not contain any cell tower history for August 3, 2014. However, he testified that the cell tower history for Sandoval's phone "dictated the exact location of Swap–O–Rama and followed the victim exactly how he showed us going down I–55. It kept pinging down I–55 to Harlem Avenue. It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged there." Detective Lazansky explained that a ping "[b]asically * * * gives us the latitude and longitude and then you punch in the latitude and longitude into Google Earth, which gives you the exact geographic location of where the phone is hitting on the cell tower."

¶ 14 During defendant's closing argument, defense counsel attempted to use a copy of the trial transcript and notes that he had written on the transcript. When the court became aware of this, it admonished defense counsel in the presence of the jury to put the transcript down. During an ensuing sidebar conference, the court explained, "[y]ou can argue whatever you wish, but no one is to refer to the transcript because it's never been introduced, and it's never been authenticated, and the court reporter's notes have not been requested to be authenticated by anyone."

¶ 15 The jury found defendant guilty of armed robbery and the court imposed a sentence of 29 years in prison. This appeal followed.

¶ 16 ANALYSIS

¶ 17 Defendant presents nine issues for our review which span the entire trial, from jury selection to sentencing. Defendant argues that: (1) the jury received improper Rule 431(b) admonishments (see Ill. S. Ct. R. 431(b) ), (2) his identification was the product of a suggestive lineup, (3) his identification was unreliable (4) the State failed to prove that a gun was used during the crime, (5) an inculpatory text message found on Sandoval's...