2022 IL App (1st) 191920-U
SECOND DIVISION September 27, 2022
No. 1-19-1920
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 JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 7189 ) EMMANUEL RAYA, ) Honorable ) William G. Gamboney, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: Affirmed. Though it was error to admit photographs of defendant’s gang tattoos containing swastikas, and accompanying expert testimony that gang founder “idolized Adolf Hitler,” defendant cannot show either ineffective assistance or reversible evidentiary error, as error would not have affected jury’s verdict.
¶2 A jury convicted defendant Emmanuel Raya of the first-degree murder of Jeanette
Laureano. The State’s theory was that defendant shot Jeanette in tribute to one “Omski,” a fellow
Maniac Latin Disciple who had been killed by Spanish Cobras, a rival gang with whom Jeanette
associated. In support of this theory, the State offered ten photos of defendant’s numerous gang
tattoos and a gang expert’s testimony about Omski’s murder, the gang feud that arose from it,
and its alleged relevance to this shooting.
¶3 Two of defendant’s tattoos depict swastikas. As the State’s expert testified, the swastika No. 1-19-1920
was adopted as one of the Maniac Latin Disciples’ symbols because the gang’s founder “idolized
Adolf Hitler.” Defendant argues on appeal that the swastika tattoos, and the expert’s testimony
about their significance, had no relevance to Jeanette’s murder and were highly inflammatory
and thus prejudicial.
¶4 Defendant seeks relief on alternative theories of ineffective assistance of counsel and
preserved evidentiary error by the trial court. On either theory, the result is the same: we agree
with defendant that it was error to admit the Nazi-themed evidence, as it was far more prejudicial
than probative, but we do not find any reasonable probability that the State’s use of this improper
evidence swung the verdict in its favor. Thus, whether viewed as a lack of prejudice in an
ineffective-assistance claim or as harmless error, we affirm defendant’s conviction on this basis.
¶5 BACKGROUND
¶6 I. The shooting
¶7 On March 18, 2016, Jeanette Laureano parked in front of a convenience store at Diversey
and Kilbourn Avenues, in Spanish Cobra territory. Though Jeanette was not officially a Spanish
Cobra, she did closely associate with members of that gang. Her cousin, Hector Laureano, got
out of the minivan and walked toward the store. Someone shouted “Cobra Love” from a passing
car. Hector, who was a Spanish Cobra, flashed the gang’s hand symbols and yelled, “DK”—
short for “disciple killer,” a reference to the gang’s rivals, the Maniac Latin Disciples.
¶8 In short order, an armed man stepped out of a black Mercedes that was following a few
cars behind on Diversey. Realizing that he’d been lured into admitting his affiliation, Hector ran
back to Jeanette’s minivan, banged on the hood to warn her of the approaching danger, and kept
running. The man walked up to the driver’s side window; fired several shots at close range,
killing Jeanette; and got back into the Mercedes, which sped away down Kilbourn.
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¶9 The shooting was captured on the store’s surveillance camera, but the shooter’s face was
obscured and thus unidentifiable in the video. The evidence implicating defendant as the shooter
came from three principal sources: two eyewitness identifications; Blanca Camacho, the owner
and driver of the black Mercedes; and the gang evidence at issue here.
¶ 10 II. Eyewitness identifications
¶ 11 Based on information gleaned from a variety of sources, Detective Arthur Taraszkiewcz
of the Chicago Police Department (CPD) assembled a photo array that included defendant and
showed it to Hector and four other witnesses. None of these witnesses identified defendant when
they first viewed the photo array.
¶ 12 Detective Taraszkiewcz testified that gang members are often reluctant to cooperate with
the police. Hector was a case in point. When he first viewed the photo array, he was not sure that
he wanted to make an identification, although he did think that he was able to. (He thought the
shooter was #4 in the array.) Hector wanted to check in with his aunt—Jeanette’s mother—to see
what she wanted him to do, and to figure out whether the matter was going to be “handled by the
streets” before he cooperated with the police. After speaking to Jeanette’s mother, Hector
decided to cooperate. He went back to the station and identified defendant from the same array.
¶ 13 Celestino Banuelos and Romiro Jimenez, both Spanish Cobras, were in the van when
Jeanette was shot. Banuelos described the shooter as “kind of light-skinned,” with a small, light-
blue tattoo under his eye. But that is as far as he went. According to Detective Taraszkiewcz,
Banuelos did not want to be involved with the Maniac Latin Disciples; as he told the detective, “I
don’t need those kind of problems.”
¶ 14 Detective Taraszkiewcz described Jimenez as “a hard-core Spanish Cobra” who “would
hardly even look at” the detectives and seemed to take “a certain amount of satisfaction” in being
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“intentionally uncooperative” with the police.
¶ 15 Ruth Martinez, an acquaintance of Jeanette’s, and Martinez’s roommate Jennifer Bennett,
were standing near the van, talking to Jeanette, when the shooter approached. Unlike the other
witnesses, Martinez and Bennett had no gang affiliation; they just happened to be at the store,
buying drinks, when they saw Jeanette and stopped to chat. As the shooter approached, they
backed away from the minivan.
¶ 16 Bennett testified that the shooter wore a black hoodie, but it did not cover his face, which
she was thus able to see, albeit briefly. When she viewed the photo array, one person “looked
familiar” to her, but she “wasn’t sure based on the picture alone,” and she “didn’t want to pick
the wrong person.” She told the detective that she “would have felt more comfortable seeing him
in person,” so she was brought back to the station a couple weeks later to view a live, four-
person lineup. She identified defendant.
¶ 17 Like Bennett, Martinez did not identify anyone from the photo array and later viewed the
live lineup. Unlike Bennett, however, Martinez did not identify defendant. Rather, she identified
one of the fillers. Martinez testified that she was not wearing her glasses when she saw the
shooting; she went to the convenience store right after Bennett woke her up from a nap and
forgot to put them on.
¶ 18 Although the security footage does not reveal the shooter’s face, it does reveal that the
shooter was left-handed. (Or at least a left-handed shot.) For what it’s worth, it was undisputed at
trial that defendant is left-handed.
¶ 19 III. Blanca Camacho
¶ 20 The license plate of the black Mercedes was traced to Blanca Camacho. Camacho knew
defendant well. She testified that he was a Maniac Latin Disciple who went by the street name
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“Horny D.” Camacho and defendant had been dating for a few months, and in November 2016 (8
months after the shooting) they had a child together. Camacho had previously dated defendant’s
cousin for 16 years and had three children with him.
¶ 21 Defendant asked Camacho to pick him up at Hermosa Park, near Kenneth and Belden, in
Maniac Latin Disciple territory. In due course, defendant directed her to Kilbourn and Diversey.
Along the way, Camacho got the sense that they were following someone a few cars ahead of
them. There was another man who came along with defendant, but Camacho did not know him.
¶ 22 Defendant got out of the car at the intersection of Kilbourn and Diversey. Camacho saw
something in his hand, but she did not know, at the time, what it was. Camacho heard gunshots
but did not see the shooting. She asked the other man what was going on; he said nothing.
Defendant got back into the car, told Camacho to drive, and screamed something about “Umski”
[sic]. Camacho did not understand what he was saying. She also heard “a lot of clicking” coming
from the backseat, where defendant was sitting, that “sounded like a gun.” Defendant ultimately
directed Camacho to drop them off at Kenneth and Belden. As he got out of the car, defendant
said, “that’s what he get.”
¶ 23 Scared that defendant had just put and her children in harm’s way, Camacho abandoned
her Mercedes near Belmont and Harlem. Defendant came to her house the next day and asked,
among other things, where the car was, because he “needed to get rid of it.” Camacho told him.
The police never found Camacho’s Mercedes.
¶ 24 Indeed, the police had searched in vain for the Mercedes, for over two weeks, before
arresting Camacho and questioning her as a suspected accomplice in the murder. Camacho was
interrogated for upwards of two days before she implicated defendant, and then only after the
detectives showed her the security video in which the shooter is seen arriving at, and then
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leaving, the murder scene in her car. According to the detectives, although Camacho evidently
lied about any number of things before changing her tune—she was, to be sure, in no hurry to
implicate defendant, or in general to say anything more than necessary—she never wavered on
her claim that she did not know that defendant had a gun, or that he planned to kill anyone, when
she gave him a ride to Kilbourn and Diversey. Camacho was never charged.
¶ 25 The defense vigorously attacked Camacho’s credibility on this point, painting her as a
knowing and thus complicit getaway driver. The trial court agreed with the defense’s argument
that there was enough evidence of Camacho’s potential involvement in the offense to instruct the
jury, pursuant to the accomplice-witness instruction in IPI 3.17, that her testimony was “subject
to suspicion and should be considered by you with caution.” Illinois Pattern Jury Instruction,
Criminal 4th, No. 3.17.
¶ 26 The defense also sought to rebut Camacho’s testimony by presenting an alibi defense.
Defendant’s brother, Rickey Raya, testified that defendant had been his primary caregiver since
he became a paraplegic after being shot in 2001. Defendant and Rickey lived together, with their
father. Defendant was caring for Rickey and never left the house on the day of the shooting.
¶ 27 Rickey also testified that defendant looked a lot like his cousin, Manuel, with whom
Camacho had three children. Elaborating on this theme, the defense argued that Camacho
pointed the finger at defendant to protect Manuel. By the time of trial, Manuel was deceased.
¶ 28 IV. Gang evidence
¶ 29 The State called CPD Officer Eric Miehle as a gang expert. His testimony was relevant
primarily to the State’s theory of motive. Officer Miehle testified, in sum, to the ongoing rivalry
between the Maniac Latin Disciples and the Spanish Cobras. He delineated the gangs’ respective
territories for the jury and explained that, since the leaders of many of Chicago’s principal gangs
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were successfully targeted by law-enforcement in the 1990s, the gangs had largely splintered into
factions, each claiming their own territory within the gang’s turf.
¶ 30 Defendant belonged to the Kenneth-Belden faction of the Maniac Latin Disciples, named
after the intersection—where defendant was dropped off after the shooting—in the heart of their
territory around Hermosa Park. That area is also known as “Omskiville,” in honor of a Maniac
Latin Disciple, Omar Gonzalez, or “Omski,” who was killed by a Spanish Cobra in the 1990s.
According to Officer Miehle, gangs sometimes “honor” or pay “tribute” to a fallen member by
shooting a member of the rival gang in retaliation—typically on the fallen gang member’s
birthday, or else on the anniversary of his death. The date of Jeanette’s murder, March 18, was
Omski’s birthday.
¶ 31 Through Officer Miehle, the State also introduced 10 photos of defendant’s numerous
gang tattoos, which the trial court admitted on the issues of motive and identification. These
tattoos spanned the better part of defendant’s body, ranging from his lower legs to his face and
covering nearly all of his neck and back.
¶ 32 Many were references to Kenneth and Belden—either those words spelled out; or the
initials “K” and “B;” or the numerals “11” and “2,” stand-ins that correspond to the position of
these letters in the alphabet; or the phrase “BK Mafia.” There were various instances of the letter
“D,” a standard reference to “Disciples” in the gang’s name; and the word “Horny,” a reference
to defendant’s street name, “Horny D.” There is one instance of “Hermosa,” a reference to
Hermosa Park; and two instances of “Omskiville,” one on defendant’s lower back and another on
one of his hands.
¶ 33 The “2” and the “11” were small blue tattoos near his eyes, as Banuelos had described to
Detective Taraszkiewcz.
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¶ 34 And there were various images, mostly of the Maniac Latin Disciples’ symbols. There
were various horned devil-like creatures, hearts with horns, and pitchforks—always facing up, to
show respect for the gang, whereas the Spanish Cobra diamond was depicted in various tattoos
facing down, to show disrespect to these rivals.
¶ 35 Two of these images included swastikas. On defendant’s left arm, a hooded, horned
creature holding a pitchfork has a swastika where one would expect to see a face. And on
defendant’s left leg, there is a “D” with a swastika inside of it.
¶ 36 During his direct examination, Officer Miehle specifically noted these swastikas and, in
response to the State’s questions, explained what he understands them to represent. The founder
of the Maniac Latin Disciples was a “history buff” who “idolized Adolf Hitler” and thus “used
the street name of Hitler.” Like Hitler, the gang’s founder “didn’t believe in a group running
everything” but rather “believed in one individual strong enough to control the nation” (or the
gang). When Officer Miehle continued, “[s]o when he was murdered by the Latin Kings some
time in the ’70s,” the court sustained defense counsel’s objection to this “running narrative,” and
thus ended the discussion of the swastikas and Adolph Hitler.
¶ 37 V. Theories, arguments, and verdict
¶ 38 As noted at the outset, the State argued that this was a gang tribute killing—an act of
retaliation by a Maniac Latin Disciple against the Spanish Cobras, in retaliation for the murder of
Omski, carried out, as per tradition, on Omski’s birthday. The State countered with a multi-
faceted defense that challenged the reliability of the identifications and the credibility of
Camacho and asserted an alibi. Defendant never challenged the State’s assertion that he was a
Maniac Latin Disciple. To the contrary, defense counsel had offered to stipulate to that fact, in a
pre-trial hearing, in an effort to keep all of defendant’s gang tattoos out of evidence. The State
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relied heavily on those tattoos, and Officer Miehle’s testimony, to support its theory of motive,
but it made no further mention of the swastikas or the testimony about Hitler. After the jury
found defendant guilty of first-degree murder, the trial court sentenced him to 50 years in prison,
including the mandatory firearm enhancement. This appeal follows.
¶ 39 ANALYSIS
¶ 40 The substantive question before us is whether the State’s use of defendant’s swastika
tattoos and Officer Miehle’s accompanying testimony—the Nazi-themed evidence, as we will
sometimes call it—unfairly prejudiced defendant and thus warrants a new trial. But first, a few
words on the parties’ disagreement over how this issue has been raised on appeal.
¶ 41 I. Forfeiture
¶ 42 In his opening brief, defendant acknowledged that the precise points of error argued on
appeal—the prejudice resulting specifically from the swastika tattoos and the testimony about
“Hitler”—were not properly raised in the proceedings below. Take the swastika tattoos: before
trial, counsel objected to the State using any of defendant’s tattoos, arguing that because they
were all gang-related, they were, in general, were more prejudicial than probative. Counsel thus
offered to stipulate to defendant’s gang membership in an effort to exclude them all.
¶ 43 The trial court rejected this argument, finding that defendant’s gang tattoos in general
were highly probative on the questions of motive and identification. In the wake of that ruling,
defense counsel could have more specifically sought to exclude the swastika tattoos in particular,
on the ground that those tattoos carried a unique risk of prejudice, given the swastika’s ordinary
and perhaps inevitable connotations. But counsel did not single out those particular tattoos for
additional objection.
¶ 44 On appeal, defendant viewed that as a forfeiture and thus raised the issue as ineffective
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assistance of counsel, citing the familiar standard in Strickland v. Washington, 466 U.S. 668, 697
(1984) to claim that trial counsel was deficient for failing to object to these particular swastikas,
and that this deficiency resulted in prejudice to him. In its response brief, the State claimed that
counsel’s objection to the tattoos in general was sufficient to raise the appellate issue; for this
reason (among others), counsel could not be deemed deficient. There was a similar back-and-
forth in the briefs about the adequacy of counsel’s objections to Officer Miehle’s testimony, but
we will not belabor those details.
¶ 45 Defendant took the State’s response on appeal as a concession that any claim of error was
preserved, not forfeited. So he sought leave to file a supplemental brief addressing the issue as
preserved evidentiary error by the trial court, rather than ineffective assistance of counsel. We
granted defendant leave, over the State’s objection. The State responded, in its own supplemental
brief, that it would be inappropriate to consider the issue as preserved error, since defendant
failed to do so in his opening brief. In other words, by treating a preserved issue as forfeited—a
“strategic decision,” the State says—he thus worked a fresh “forfeiture” on appeal.
¶ 46 There is much that we could say about all of this, but all we need say is that none of it
matters to the disposition of this case.
¶ 47 If we agreed with defendant that trial counsel’s objections were insufficient and thus that
the proper appellate issue was ineffective assistance, we would be free, actually encouraged, to
resolve the case (if possible) on the issue of prejudice alone, if we found that any deficiency by
counsel did not impact the verdict. See People v. Coleman, 183 Ill. 2d 366, 397–98 (1998) (court
may reject ineffectiveness claim if defendant cannot show prejudice, without reaching question
of deficiency, as “lack of prejudice renders irrelevant the issue of counsel’s performance.”).
¶ 48 If, on the other hand, we agreed with the State that counsel preserved the issue below
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with adequate objections to the Nazi-themed evidence, we would be equally free to resolve the
case (if possible) on the issue of harmless error alone. See, e.g., People v. Delhaye, 2021 IL App
(2d) 190271, ¶ 99 (stating, in typical fashion, “Even if the videos were improperly admitted,
considering the entirety of the record, any error in their admission was harmless.”)
¶ 49 Either way—preserved trial-court error or ineffective assistance—we would apply
exactly the same standard. Prejudice, under Strickland, 466 U.S. at 694, means “a reasonable
probability that, but for counsel’s unprofessional errors [in failing to object to the improper
evidence], the result of the proceeding would have been different.” A non-constitutional
evidentiary error is harmless if “there is no reasonable probability that the jury would have
acquitted the defendant absent the [introduction of the improper evidence].” In re E.H., 224 Ill.
2d 172, 180 (2006) (quoting People v. Nevitt, 135 Ill. 2d 423, 447 (1990)).
¶ 50 So we need not decide whether trial-court error or ineffective assistance provides the
appropriate analytical framework—or, for that matter, whether counsel adequately objected to
one piece of disputed evidence but not the other. If defendant cannot show prejudice or harmful
error, he cannot prevail on appeal. See Strickland, 466 U.S. at 694; E.H., 224 Ill. 2d at 180. For
the reasons discussed below, we reach that conclusion here.
¶ 51 We begin by assessing the nature and extent of the prejudice caused by the disputed
evidence and the use that the State made of it at trial. We then consider there is a reasonable
probability that any prejudicial effect of the evidence affected the verdict, given the overall
strength of the State’s case against him.
¶ 52 II. The Nazi-themed evidence
¶ 53 Defendant argues that the Nazi-themed evidence would inevitably lead the jury to believe
that he harbored Nazi sympathies or beliefs—that he espoused the pernicious ideology of the
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regime whose foremost symbol he twice tattooed on his body. Thus, revealing his swastika
tattoos to the jury could easily stoke contempt for him without adding anything probative, since
Jeanette’s murder had nothing to do with antisemitism, white supremacism, or other canonical
Nazi or neo-Nazi beliefs. See Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Lynn, 388 Ill. App.
3d 272, 278 (2009) (“Typically, the prejudicial effect of certain evidence ‘means that the
evidence in question will somehow cast a negative light upon the defendant for reasons that have
nothing to do with case on trial.’ ” (quoting People v. Dea, 353 Ill. App. 3d 898, 903 (2004)
(Steigmann, J., specially concurring)).
¶ 54 This much is undeniable: defendant’s swastika tattoos would, at first blush, strike the jury
as an expression of Nazi or neo-Nazi ideology. That is what the symbolic or expressive act of
displaying a swastika, on one’s body or anywhere else, generally means. And that remains true
even if, as the State assures us, it was not trying to paint defendant as a neo-Nazi, but rather to
show his gang membership and loyalty, the extent to which he was steeped in the gang’s
symbolism, history, and lore, and his respect for its fallen members.
¶ 55 The State’s purposes, intentions, or theories of relevance do not limit the meaning that a
historically laden symbol like a swastika will inevitably bear in the jurors’ minds. Just as words
have meanings imparted to them by their place in the language, symbols—at least certain
symbols, the swastika surely prominent among them—have meanings imparted to them by their
place in history. Symbols, like words, mean what they mean, and their meanings are not entirely
up to us when we use them.
¶ 56 Proudly display a swastika, and people will think—without hesitation and usually with no
small amount of horror and contempt—that you are aligning yourself with the Nazi regime and
what it stood for. Tell a jury that the defendant is tattooed with swastikas, and the jury, at least at
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first blush, will draw the same conclusion. That may not be the State’s point in using this
evidence, but the unspoken implications are all but certain to come across, anyway.
¶ 57 Granted, one can try to disavow those implications. But when a symbol is this laden with
meaning, disentangling the two is no easy task. The State is confident it succeeded in that task
here. Officer Miehle’s testimony, the State argues, “refute[d]” any “prejudicial “interpretation of
the tattoo[s]” as an expression of Nazi or neo-Nazi beliefs. We mean no criticism of the officer—
he was simply explaining what he was asked to explain—but his testimony hardly distanced the
swastika tattoos from their usual meaning.
¶ 58 Officer Miehle testified that the swastika is a symbol used by the Maniac Latin Disciples.
And he set out to explain the origins of this piece of gang iconography. To this end, he linked the
symbol to one “Mr. Rodriguez,” the gang’s founder and one of its “fallen members,” as the State
likes to say. Thus, the State’s theory, more specifically stated, is that defendant’s swastika tattoos
were a symbol of respect for Mr. Rodriguez. But that doesn’t necessarily show that the swastika
tattoos are not still an expression of Nazi ideology. To settle that question, we need to know how
and why a swastika honors Mr. Rodriguez.
¶ 59 The jury heard the reason: because Mr. Rodriguez “idolized Adolf Hitler,” so much so, in
fact, that he adopted the Nazi dictator’s surname as his own street name. And Mr. Rodriguez, or
“Hitler,” as he asked to be called, was an avowed fascist—he “believed in one individual strong
enough to control the nation” (or the gang). Officer Miehle thus explicitly tied the gang’s
founder (if not the gang’s founding) to at least one key tenet of Nazi belief, its murderous
political ideology. That is as far as the explanation went, as the court sustained counsel’s
objection to the officer’s “narrative” about “Hitler.”
¶ 60 True, Officer Miehle said nothing out loud about the canonical Nazi ideologies of white
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supremacism and antisemitism. But was the jury really expected to separate Nazism’s racist,
nationalist, and bigoted views from its fascism? Could one reasonably be expected to “idolize”
Hitler’s leadership model while rejecting his bigotry? That, in our view, is a bridge too far. Any
mention of Nazism or Hitler is inextricably linked to its hateful ideology.
¶ 61 Officer Miehle’s testimony hardly put any daylight between defendant’s swastika tattoos
and their usual Nazi meaning; all the officer interposed between them was: “Hitler.” If someone
is tattooed with swastikas, knowing full well what they ordinarily symbolize, and knowing full
well (as one steeped in the gang’s history and lore) that they are worn as an homage to “Hitler,”
it is ridiculous to suggest (as the State does) that those swastikas do not bear, are not meant to
bear, and will not be taken to bear, their usual Nazi meaning.
¶ 62 We are at a loss to explain how the combination of swastika tattoos and the testimony
about “Hitler” would lead the jury to think anything but the obvious: that defendant, in some
measure, supported Nazi or neo-Nazi beliefs. Experience teaches this lesson clearly, and the
point will rarely be lost on people of common sense. So whatever limited purposes the State may
think up to justify its use of the swastika tattoos at trial, we don’t doubt that the jurors took this
evidence at face value. Their common sense and experience (to say nothing of the testimony
about “Hitler”) give them every reason to do so.
¶ 63 While the swastika tattoos were inherently prejudicial, they did not meaningfully improve
the jury’s fact-finding. Indeed, several of defendant’s other tattoos—all gang-related but without
the unique risk of prejudice posed by the swastikas—were more than sufficient to serve the
State’s valid evidentiary purposes.
¶ 64 The State’s general point was that defendant was a Maniac Latin Disciple and deeply
committed to the life and lore of his gang. See People v. Suastegui, 374 Ill. App. 3d 635, 645
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(2007) (where shooting tied to gang rivalry, tattoos admissible to show gang membership, as
they “merely depicted the [gang’s] symbols and did not contain additional language or
illustrations that would be inflammatory or prejudicial to defendant”). The State had eight other
photos of defendant’s numerous tattoos with which to make this point.
¶ 65 The State’s more specific point was that “Omski’s” murder and the resulting gang feud
supplied defendant’s motive for this cold-blooded murder. See People v. Smith, 141 Ill. 2d 40, 58
(1990) (evidence of gang membership admissible to show motive for “otherwise inexplicable
act”). Two of defendant’s tattoos could hardly be more to this point: “Omskiville” was tattooed
across his lower back and one of his hands. Several others were variations on the “Omskiville”
theme: “K,” “B,” “11,” “2,” “BK Mafia,” and “Hermosa” all reflected his membership in the
Kenneth-Belden faction, whose area was known as “Omskiville,” in honor of the fallen member
defendant was said to avenge.
¶ 66 The “Omskiville” and related tattoos spoke directly to defendant’s alleged motive and
thus had heightened relevance; others spoke more generally, but relevantly enough and without
undue prejudice, to his gang membership and commitments. With all of those tattoos properly
before the jury, what further insight, into any relevant question of fact could be gleaned from the
swastika tattoos in particular? None.
¶ 67 Indeed, the relevance of defendant’s swastika tattoos was diminished three times over.
First, their relevance was limited to the general point that he was a proud Maniac Latin Disciple;
unlike the “Omskiville” and related tattoos, they did not speak directly to his alleged motive for
the murder. Second, while that general point was relevant, it was not disputed, and “evidence,
while still relevant, has diminished probative value when the fact it is offered to prove is not in
dispute.” People v. Tatum, 2019 IL App (1st) 162403, ¶ 116 (citing Michael H. Graham, Cleary
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and Graham's Handbook of Illinois Evidence, § 403.1, at 189). Third, plenty of non-swastika
gang tattoos spoke to this general question clearly, without the risk of undue prejudice caused by
the swastikas themselves or the needless distraction of Officer Miehle’s otherwise irrelevant
“narrative” about “Hitler.” At best, the swastika tattoos were cumulative evidence, and that, too,
diminishes their probative value—but not their prejudicial effect. People v. Maya, 2017 IL App
(3d) 150079, ¶ 70.
¶ 68 All told, the unfair prejudice of the Nazi-themed evidence clearly outweighed any
minimal probative value it may have had. Ill. R. Evid. 403; People v. Villareal, 198 Ill. 2d 209,
232 (2001); Maya, 2017 IL App (3d) 150079, ¶ 70 (cumulative nature of evidence “increase[es]
the chances that the danger of undue prejudice will come to outweigh the probative value.”).
¶ 69 In fairness to the State, we hasten to add that the State never asked the jury to draw any
particular inferences from the swastika tattoos; in fact, the State never even mentioned them
during its arguments. They only came into focus momentarily, when the State asked Officer
Miehle to explain their provenance. (Perhaps that was a well-intentioned attempt to disentangle
the swastikas from their ordinary and obviously prejudicial meaning; but if so, it was not
successful—in fact it backfired with the Hitler reference.) Beyond this one brief mention, the
State left the swastika tattoos aside, and nothing else presented or argued during the trial
compounded the unfair prejudice this evidence created.
¶ 70 In sum, the Nazi-themed evidence posed an obvious risk of unfair prejudice, but that risk
was mitigated by its limited role in the trial. That said, the State—and trial courts—would do
well to remember that the swastika is a uniquely “potent symbol of intolerance, hatred, and
violence.” Dickinson v. Austin, No. 90–15100, 1991 WL 166411 (9th Cir. Aug. 30, 1991). It is to
be used with great caution at a criminal trial, and only when it has clear relevance to the specific
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factual questions put to the jury. In a weak enough case, even the very limited use made of this
evidence here could warrant reversal. But as we discuss below, this case, overall, was not weak.
¶ 71 III. The case against defendant
¶ 72 The State’s case comprised three main categories of evidence: eyewitness identifications;
evidence of gang membership and motive; and Blanca Camacho’s testimony, which overlapped
with the other two categories.
¶ 73 We begin with the identification evidence. Defendant says it was “incredibly weak.” Of
the five eyewitnesses within feet of the shooting, he says, not one of them identified him from
the photo array. That is not entirely true; and the part that is true is misleading.
¶ 74 Banuelos and Jimenez, the two Spanish Cobras who were in the van when Jeanette was
shot, refused to cooperate with the police—as gang members often do. Banuelos made clear that
he did not want to put himself at odds with the Maniac Latin Disciples, his own gang’s rivals; as
he told Detective Taraszkiewcz, “I don’t need those kinds of problems.” (But he did say that the
shooter had a light blue tattoo under his eye—like defendant.)
¶ 75 Jimenez, the “hard-core Spanish Cobra,” toyed with the detectives; he “would hardly
even look at” them and seemed to take “a certain amount of satisfaction” in being “intentionally
uncooperative.” So it is hardly significant that neither of these witnesses identified defendant, as
if their refusal to cooperate somehow casts doubt on the two witnesses who did identify
defendant. Banuelos and Jimenez simply zero out of the equation.
¶ 76 Hector did not identify defendant the first time he viewed the photo array, but he did
identify defendant the second time. And it’s not as if Hector had no idea what the shooter looked
like until suddenly he did. Hector believed that he could identify the shooter the first time: “#4”
in the array, he said. The issue for Hector, as for his fellow Spanish Cobras, was whether he was
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willing to cooperate with the police. At first his answer was no, or at least not yet; after he
conferred with Jeanette’s mother and inquired whether the matter would be “handled by the
streets,” he decided he would cooperate with law enforcement. And then he identified defendant.
Whatever else one might say about Hector, this alone does not call the reliability of his
identification into serious doubt.
¶ 77 Bennett did not identify defendant from the photo array, but she did identify him in a live
lineup. And her initial failure (so to speak) to identify defendant was due, at least in part, to a
laudable sense of caution. One person in the photo array “looked familiar” to Bennett, though
she “wasn’t sure based on the picture alone.” To her credit, Bennett wanted to be careful not “to
pick the wrong person;” not unreasonably, she “felt more comfortable” making an identification
after viewing the suspect in person rather than in a picture.
¶ 78 Martinez is the one eyewitness who falls on defendant’s side of the ledger. She did not
identify defendant from the photo array and, more importantly, later identified someone else in
the live lineup. But Martinez’s conflicting identification comes with a serious caveat: she was
not wearing her glasses when she saw the shooter. (Recall that she went to the corner store right
after Bennett woke her up from a nap and forgot to put them on.)
¶ 79 And it’s a small point, but one worth making, that the video depicts a left-handed shooter,
and the undisputed evidence was that defendant is left-handed. That is hardly a unique identifier,
but it does narrow the field substantially.
¶ 80 All in all, two eyewitnesses—to say nothing of Camacho—identified defendant, and the
one conflicting identification came from a witness who wasn’t wearing her glasses. The State’s
eyewitnesses may have had their flaws—and they didn’t see the shooter for very long—but we
do not agree that the identification evidence, all things considered, was “impossibly weak.”
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¶ 81 Next there was the motive evidence. The shooting took place on “Omski’s” birthday, and
it clearly involved a Maniac Latin Disciple targeting Spanish Cobras. So there is ample reason to
think that the shooting was a tribute to “Omski.” And the tattoo evidence left little doubt about
“Omski’s” significance to defendant. To be fair, much like defendant’s handedness, his tattoos
are hardly a unique identifier. We doubt he is the only Maniac Latin Disciple in the Kenneth-
Belden faction who proudly wore tattoos like these. But at the very least, defendant’s evident
connection to the “Omski” feud made him a highly plausible suspect.
¶ 82 Taking the two categories of evidence together, the following picture emerges: defendant
was a left-handed Maniac Latin Disciple, as seen on the security footage, who had a small blue
tattoo under his eye, as described by Banuelos; a motive to avenge “Omski’s death” tattooed all
over his body; and who was identified by two eyewitnesses. And on top of all that, the shooter
arrived at and left the scene of the murder in a car that happened to be owned by defendant’s
then-girlfriend, Blanca Camacho, to whose testimony we now turn.
¶ 83 Camacho solidified both the identification and motive evidence. She testified, in short,
that the person who got in and out of her car at the scene of the shooting (as seen on the video)
was defendant. She had known defendant for at least 16 years, so there was no serious possibility
that she was mistaken about this. And after she drove away, defendant not only said “that’s what
he get”—thus revealing the shooting to be an act of revenge—but also shouted something about
“Umski” [sic], although Camacho didn’t quite understand what he was talking about.
¶ 84 Camacho’s testimony, if believed, surely spelled the end for defendant, and so he has had
no choice, both at trial and on appeal, but to attack her credibility. To this end, he points out that
Camacho initially lied during her interrogation and only implicated him once the detectives
showed her the video of her car arriving at and leaving the scene of the murder.
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¶ 85 It is not terribly surprising or significant that Camacho didn’t come clean until the police
cornered her with the video, leaving her with no plausible way to continue to deny that she knew
who the shooter was. Nor does it show that Camacho had a reason to frame defendant. At trial,
the defense argued that she did exactly that, to protect defendant’s cousin Manuel, the father of
Camacho’s first three children. But defendant does not pursue that argument on appeal, and there
are some good reasons to let it go.
¶ 86 Manuel was deceased by the time of trial, if not earlier, and Camacho was already with
defendant when she implicated him during her interrogation. In fact, she gave birth to his child in
November 2016; she was interrogated on April 5 of that year, meaning that (whether she knew it
or not) she was already pregnant. She knew that defendant was a gang member with a history of
violence. Indeed, Camacho testified at some length—we have spared the reader the details, since
they are not otherwise relevant to the case—that she was terrified of what defendant might do to
her or her children once she did implicate him in Jeanette’s murder. All of which is to say that if
Camacho had some incentive to falsely implicate defendant, we have not been told what it is, and
her incentives, if anything, appear to run in the opposite direction.
¶ 87 Defendant argued at trial, and at least implies on appeal, that Camacho implicated him to
help herself, perhaps to avoid being charged with Jeanette’s murder on a theory of
accountability. After all, though she wasn’t charged, there was at least an appearance that she
was or may have been an accomplice in the murder, rather than the unwitting girlfriend that she
portrayed herself to be. Hence the jury instruction that her testimony, due to her potential role in
the offense, was “subject to suspicion and should be considered by you with caution.” Illinois
Pattern Jury Instruction, Criminal 4th, No. 3.17.)
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¶ 88 Even if defendant is correct that Camacho cooperated to help herself, it does not
necessarily mean that she was lying when she pointed the finger at defendant. For the reasons we
just gave, she seemed to have every reason not to implicate defendant, if she could avoid it. The
implicit suggestion of defendant’s argument, as best we understand it, is that Camacho told the
detectives what they wanted to hear, as the saying goes, out of self-interest as a suspected
accomplice. But that is pure speculation; defendant points to no evidence that Camacho even
knew at the time that he was a suspect. (At that point, the detectives had Hector’s identification
in hand, though not Bennett’s.)
¶ 89 Lastly, defendant finds it “important[ ]” that the jury was given the accomplice-witness
instruction, IPI 3.17, for Camacho. His unspoken argument seems to be that this instruction
would or should have led the jury to find Camacho’s testimony unbelievable. And that would
substantially diminish the State’s case and thus raise the odds that the prejudicial effect of the
Nazi-themed evidence affected the verdict. But it is important not to read IPI 3.17 as essentially
directing a credibility finding. It simply reminds the jury that a witness who was or may have
been involved in the charged crime might have heightened, self-interested motives to shift blame
onto the defendant or otherwise lie about the facts of the case. But if the jury could not find any
reason why Camacho would be inclined to falsely implicate defendant, then it was of course free
to credit her testimony in full.
¶ 90 All in all, the State presented a fairly strong case against defendant—strong enough to
overcome any taint caused by the improperly admitted Nazi-themed evidence. So whether we
view this as an ineffective-assistance claim and find a lack of prejudice, or as a preserved
evidentiary claim and find the error to have been harmless, the result is the same: though the
Nazi-themed evidence should not have found its way into defendant’s trial, we remain confident
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that the jury would have convicted him without it.
¶ 91 CONCLUSION
¶ 92 The judgment of the circuit court is affirmed.
¶ 93 Affirmed.
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