People v. Ruiz

2020 IL App (1st) 171436-U

Opinion

2020 IL App (1st) 171436-U No. 1-17-1436 Order filed April 27, 2020 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 9120 ) MARTIN RUIZ, ) Honorable ) Timothy J. Joyce, Defendant-Appellant. ) Judge, presiding.

JUSTICE PIERCE delivered the judgment of the court. Presiding Justice Griffin and Justice Hyman concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for first degree murder affirmed where his claims of prosecutorial misconduct are forfeited and not reviewable as plain error where no error occurred; case remanded to the trial court on the issues of correcting the sentencing credit and the fines and fees order.

¶2 Following a jury trial, defendant Martin Ruiz was convicted of first degree murder (720

ILCS 5/9-1(a)(1) (West 2012)) for fatally shooting 15-year-old Jaime Ruvalcaba. The trial court

sentenced defendant to 30 years’ imprisonment for the murder and an additional 25-year No. 1-17-1436

sentencing enhancement for personally discharging the firearm that caused Ruvalcaba’s death for

an aggregate sentence of 55 years’ imprisonment. On appeal, defendant contends that he was

deprived of his right to a fair trial because the prosecutor engaged in a pattern of pervasive

prosecutorial misconduct. Defendant claims that the prosecutor introduced impermissible evidence

suggesting that the shooting was gang-related and that defendant was a gang member, improperly

shifted the burden of proof to defendant in her rebuttal argument, and impermissibly injected her

personal opinion that defendant was guilty in her rebuttal argument. In addition, defendant

contends, and the State agrees, that this case must be remanded to the trial court to address the

issues of correcting the days of sentencing credit on the mittimus and vacating erroneously

assessed fees from the fines and fees order. We remand this case to the trial court to address the

issues of correcting the mittimus and the fines and fees order, and affirm defendant’s conviction

in all other respects.

¶3 Defendant was charged with six counts of first degree murder for shooting Ruvalcaba. Prior

to trial, the State moved to admit proof of other crimes evidence, specifically, that minutes prior

to shooting Ruvalcaba, defendant had approached another young man sitting in a vehicle and

pointed a gun at his head. The State argued that the two crimes were intertwined, and that the

evidence would show defendant’s identity, intent, knowledge, state of mind, and the continuing

narrative. The trial court granted the motion to admit the other crimes evidence.

¶4 Defendant filed a motion in limine asking the court to bar evidence at trial of “gang activity,

neighborhood gang conflict and/or gang involvement by Mr. Ruiz.” Defendant argued that there

was no evidence that the shooting of Ruvalcaba was gang-related, and “[t]he introduction of any

gang activity, neighborhood conflict and/or gang involvement by Mr. Ruiz” would be prejudicial.

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At the hearing on the motion, the State replied that there would be no testimony regarding any

gang activity “per se.” However, police officers would testify that they identified defendant in a

surveillance video based on their prior contact with him, they knew defendant by his name and his

nickname “Garbage,” and knew him as a self-admitted member of the La Raza gang. The trial

court ruled as follows:

“The motion is granted. The State will be prohibited and their witness [sic] will be

instructed not to bring out any evidence that Mr. Ruiz is a member of any particular gang.

At the same time, the State’s witnesses, the police witnesses will be able to testify,

presuming it’s the truth, that they knew Mr. Ruiz from prior contacts as we will describe

it, and not prior arrests, not prior gang activity, but prior contacts. They knew him. They

knew his nickname, and they were able to – if that’s what they claim, identify him from

some surveillance video, and that’s why they sought him in order to further their

investigation.”

¶5 The State proceeded to trial on two counts of first degree murder and nol-prossed the

remaining four counts. At trial, Liset Reyes testified that she was Ruvalcaba’s mother. About 3

p.m. on August 21, 2012, Ruvalcaba left his home in the 1900 block of West 47th Street to get a

haircut. His 16th birthday was the following day. About 4 p.m. on August 21, Reyes heard

gunshots. She called and texted Ruvalcaba, but he did not answer. A woman from the

neighborhood told Reyes that her son was on the ground. Reyes ran across the street from her

home and saw Ruvalcaba. He was injured, trying to breathe, and unable to speak. An ambulance

transported Ruvalcaba to Stroger Hospital where he died.

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¶6 Leticia Rios testified that about 4 p.m. on August 21, 2012, she was sitting in the driver’s

seat of her vehicle parked in a bank parking lot at 47th Street and Hermitage Avenue. Her vehicle

was facing 47th Street. Her 15-year-old son, Alexis Rios, was in the vehicle with her. A gray car

drove past their vehicle on 47th Street. The same gray car returned to the area and parked on

Hermitage. Alexis told Leticia that when the car drove past them the first time, the occupants

looked at them. Leticia told Alexis not to look at the gray car. Leticia looked in her rearview mirror

and observed a man exit the gray car and watched him approach her vehicle. Leticia turned her

head and saw the man standing next to her son’s window. In court, Leticia identified defendant as

that man.

¶7 Defendant held a gun to Alexis’ head. Alexis closed his eyes. Leticia repeatedly yelled at

defendant not to kill her son. She also yelled “God, help me.” Leticia testified that she told

defendant “[t]o leave him alone, that he was not a gang banger, just a lot of things that started

coming to mind.” Defendant lowered his gun, said something, and walked away. Leticia and

Alexis exited their vehicle and ran inside the bank. Leticia asked the bank manager to watch her

son. Leticia returned outside to see if defendant was still there and observed police and

ambulances. Leticia learned that something had happened at 47th Street and Wolcott Avenue. She

went to that area and told the police what happened to her and Alexis moments before. She told

the officers that the gunman was Hispanic, wearing red and black clothing, and had a large black

gun. On August 28, 2012, Leticia viewed a photo array and identified defendant as “[t]he one who

put the gun on my son.” On April 21, 2013, Leticia identified defendant in a lineup.

¶8 On cross-examination, Leticia testified that she had never before seen the gunman. She did

not observe the license plate number on the gray car.

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¶9 Alexis Rios testified substantially the same as Leticia that they were parked in the bank

parking lot about 4 p.m. on August 21. Alexis confirmed that he was 15 years old on that date, and

was sitting in the passenger’s seat of their vehicle. Alexis observed a gray Chrysler drive past the

front of their vehicle on 47th Street. He could only see the driver, whom he did not recognize.

Shortly thereafter, Leticia told Alexis that a man was approaching their vehicle. Alexis looked to

his right and observed defendant standing next to him, pointing a gun against Alexis’ right temple.

Defendant was wearing red shorts and a black shirt. Alexis identified defendant in court. The gun

was large and black. Alexis closed his eyes and waited for the sound of a gunshot. Leticia yelled

at defendant in Spanish, telling him not to kill Alexis and that he was not a gang banger. Defendant

pointed the gun against Alexis’ head for about four minutes. Defendant stated, “it was your lucky

day, mother f***” and walked away towards Hermitage. Defendant entered the Chrysler and the

vehicle drove down 47th Street towards Wolcott. Alexis could not see if there were other people

inside the Chrysler. Alexis went inside the bank and waited for Leticia to return. About 15 to 20

minutes later, one of Leticia’s friends came to the bank and took Alexis to 47th Street and Wolcott,

where another man had been shot. Alexis told the police what happened to him moments before.

Alexis described the gunman as Hispanic, in his 20s, five feet nine inches tall, 220 pounds, and

wearing a black t-shirt and red shorts. On September 6, 2012, Alexis viewed a photo array and

identified defendant as the man who held a gun against his head on 47th Street.

¶ 10 On cross-examination, Alexis acknowledged that he kept his eyes closed while the gun was

against his head and did not open them until the gunman was walking to the Chrysler with his back

to Alexis. Alexis did not know defendant and had never seen the gunman before the day of the

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incident. On redirect examination, Alexis confirmed that defendant was the man who pointed the

gun against his temple, and the same man he identified in the photo array.

¶ 11 Dafniy Ramirez testified that about 4 p.m. on August 21, 2012, she was standing outside

the front of her house on 47th Street near Winchester Avenue with her boyfriend, Fernando Blanco.

Dafniy observed a Chrysler stop in front of a clinic at the corner of 47th Street and Wolcott. A

man exited the rear passenger’s side of the Chrysler with a gun in his hand. Dafniy observed the

gunman fire several shots at another man. Nothing obstructed her view of the shooting; however,

she was too far to see the gunman’s face. The gunman reentered the rear passenger’s side of the

Chrysler, which drove past her and Blanco on 47th Street. Blanco memorized the Chrysler’s

license plate number, then recited it to Dafniy as she wrote it on the wall of her house. When the

police arrived at the scene, Dafniy told them what she saw and showed them where she had written

the license plate number. On cross-examination, Dafniy acknowledged that she never identified

the shooter.

¶ 12 Fernando Blanco testified that at the time in question he and Dafniy were standing in front

of her house on 47th Street between Winchester and Wolcott Avenues, next to a candy store.

Blanco heard four or five gunshots coming from Wolcott. Blanco looked in the direction of the

gunfire and observed a young man with a gun in his right hand entering the passenger’s side of a

gray Chrysler 300 that was parked in front of a clinic. Blanco was about half a block away from

the Chrysler and nothing obstructed his view of the gunman. Blanco saw the gunman’s face and

recognized him. In court, Blanco identified defendant as the gunman. The Chrysler drove past

Blanco and Dafniy as it left the scene. There were two occupants in the vehicle, the driver and

defendant. Blanco memorized the license plate number and typed it into his cell phone. He gave

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the license plate number to Ruvalcaba’s uncle. Blanco did not recall if he gave the number to

Dafniy. Blanco went to the location of the shooting, saw Ruvalcaba lying on the ground, and

observed gunshots on his stomach. Blanco noted that he wrote down one wrong number for the

license plate. The following day, Blanco viewed a lineup at the police station, but did not identify

anyone as the shooter. Defendant was not in that lineup. On April 21, 2013, Blanco viewed another

lineup and identified defendant as the shooter.

¶ 13 Cristal Zarajoza testified that at the time in question she was working near 47th Street and

Wolcott when she heard multiple gunshots. She ran outside onto 47th Street to look for her nephew.

Zarajoza saw a group of people at the corner and ran there. She observed a young man whom she

did not know lying on the ground bleeding. Zarajoza had left her vehicle parked on Wolcott the

previous day. After the shooting, Zarajoza observed a gunshot in the rear of her vehicle that was

not there the previous day. On cross-examination, Zarajoza acknowledged that she did not know

when her vehicle was struck by a bullet.

¶ 14 Joseph Ramirez testified that at 4 p.m. on August 21 he was leaving a candy store on 47th

Street with his five-year-old daughter. As they crossed an alley between Wolcott and Winchester,

Joseph noticed a grayish Chrysler 300 with a special grill. As Joseph walked past the Chrysler, the

driver slouched back in his seat as if he were hiding from something. Joseph crossed Wolcott, and

when he was no more than 100 feet from the corner, he heard between four and eight gunshots.

Joseph pick up his daughter and held her against a wall. When the shooting stopped, Joseph looked

back and observed a man turning the corner with a gun in his hand, running towards the Chrysler.

In court, Joseph identified defendant as the gunman. Joseph also observed a young man who

appeared to be shot, trying to walk and stumbling. The victim fell to the ground, and Joseph saw

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a large amount of blood. He called 911. Joseph took his daughter home then ran back to the scene

to see if he could help. The following afternoon, Joseph viewed a photo array and identified

defendant as the shooter. On April 21, 2013, Joseph identified defendant in a lineup. On cross-

examination, Joseph acknowledged that he never observed defendant shooting the gun, nor did he

observe any gunshots.

¶ 15 Kim Barrett testified that about 4:05 p.m. on August 21 she was working as a physician’s

assistant at the Children’s Medical Center located at the corner of 47th Street and Wolcott. Barrett

thought she heard four or five gunshots outside. She went to the front desk near the 47th Street

entrance and saw her coworker, Lupe, looking out a window onto Wolcott. Barrett looked out the

window and saw someone lying on the ground. Barrett told Lupe to call 911. Barrett went outside,

approached the young man lying on his back, and assessed his wounds. He was gasping for air and

bleeding heavily from his right arm and abdomen. Barrett applied pressure to his wounds. Another

man who identified himself as an EMT assisted Barrett. The police and an ambulance arrived at

the scene, and the victim was placed inside the ambulance. Barrett did not witness the shooting,

observe anyone with a gun, or observe a vehicle fleeing the area. The clinic had a surveillance

video camera that recorded the front entrance at 47th Street and Wolcott. Barrett brought two

detectives inside the clinic and viewed the surveillance video with them. The video was published

to the jury.

¶ 16 Chicago Fire Department paramedic Barbara Kaspar testified that when she and her

partner, Brendon Hehir, arrived at the scene, Ruvalcaba was laying on the ground with multiple

gunshot wounds, bleeding, unresponsive, and had very shallow and slow breathing. They placed

Ruvalcaba inside the ambulance and counted eight gunshot wounds – three to the abdomen and

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one each to the left arm, left armpit, right arm, right armpit, and groin. While en route to Stroger

Hospital, Ruvalcaba stopped breathing, did not have a pulse, and flat-lined.

¶ 17 Chicago police officer Angel Cahue testified that on August 21, he was assigned to the

“Gang Enforcement Unit” covering four districts on the southwest side of the city. About 4:05

p.m., Cahue and his partner, Officer Romero Gonzalez, responded to a call of a person shot at 47th

Street and Wolcott. When they arrived at the scene, the victim had already been transported to the

hospital. They learned that they were looking for a light-colored Chrysler 300 with license plate

number L349350. Cahue entered the license plate number in the computer inside his vehicle and

found that the Chrysler was registered to Jose and Ignacio Martinez at an address on South Ada

Street. Cahue and Gonzalez searched the area and found the Chrysler parked on 49th Place near

Hoyne Avenue, approximately four blocks from the shooting. The vehicle was not occupied. The

police established surveillance of the Chrysler. At 7:48 p.m. police observed a minivan park behind

the Chrysler. Jose Martinez exited the minivan and entered the Chrysler. The Chrysler and the

minivan began driving away and the police stopped both vehicles. Martinez and the two occupants

inside the minivan, Andy Ojeda and Sergio Barron, were taken into custody and transported to the

police station for further investigation regarding the shooting. The Chrysler was towed and

impounded for investigation. On cross-examination, Cahue testified that his computer did not

indicate that the Chrysler had been stolen.

¶ 18 Chicago police officer Kenneth Hiatt testified that at 4:06 p.m. on August 21, he and his

partner, Officer Kukielka 1, responded to a person shot at 47th Street and Wolcott. At the scene,

Hiatt observed a Hispanic man lying on the ground who had been shot and several shell casings

1 Officer Kukielka’s first name does not appear in the record.

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laying around him. Paramedics arrived and transported the victim to Stroger Hospital. Hiatt entered

the clinic at the scene and viewed a surveillance video. On the video, Hiatt observed a four-door

sedan pull up just west of the intersection of 47th Street and Wolcott. A heavy-set Hispanic man

wearing a black t-shirt and red shorts exited that vehicle. The man was holding a black handgun

in his hand. The man ran towards the corner on 47th Street and turned at the corner. The man ran

back to the vehicle with the gun in his hand and entered the vehicle, which drove away heading

west on 47th Street. Hiatt told Kukielka, some detectives, and “the gang team members” who were

present what he observed on the video. On cross-examination, Hiatt acknowledged that he did not

observe the shooting on the video.

¶ 19 Chicago police sergeant Marvin Otten testified that he was a forensic investigator and

arrived to process the crime scene at 6:15 p.m. Otten collected three fired cartridge cases, a swab

of suspect blood, and a fired bullet from the trunk of a vehicle.

¶ 20 Chicago police officer Rodrigo Corona testified that he had worked in the ninth district for

10 years. When he arrived at work on August 21, he was shown a photograph taken from a video

of a possible suspect in a shooting that occurred that day at 47th Street and Wolcott. Corona

immediately recognized the suspect as a man he knew from the neighborhood known by the name

“Garbage.” In court, Corona identified defendant as “Garbage.” When asked what neighborhood

he was referring to, Corona replied “I’m referring to the Back of the Yards, it's known as the La

Raza neighborhood.” Corona confirmed that area was part of the ninth district. Corona had seen

defendant in the ninth district the day before the shooting and briefly spoke with him. After the

shooting, he no longer saw defendant in the neighborhood.

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¶ 21 Retired Chicago police officer Robert Vella testified that in his 25 years on the force, he

worked in the regular patrol division, the tactical unit, and his “last assignment was gang

investigations.” August 21 was the first day he was with “the 6565 team, gang investigations.”

Prior to that day, he had worked in the ninth district for 17 years. Shortly after 4 p.m., he was

assigned to assist the detectives in the ninth district with a homicide. Vella and his partner, Officer

Perez, 2 patrolled the neighborhood looking for the suspect. A few hours later, Vella was directed

to 49th Street and Hoyne where the vehicle involved in the homicide had been located. Upon

arriving at 49th Street, Detective Roberto Garcia showed Vella a photograph of a man wearing a

black t-shirt and red shorts. Vella recognized the man in the photograph as “Martin Ruiz,” who

was also known as “Garbage.” Vella had met defendant numerous times while working in the ninth

district. Vella identified defendant in court. After recognizing defendant, Vella entered defendant’s

name in the computer inside his vehicle. Defendant’s photograph appeared on Vella’s computer,

which he then showed to Garcia. Vella knew where defendant lived. Vella and his team patrolled

the area around defendant’s house and set up surveillance for several days but were unable to

locate defendant.

¶ 22 Karen Melone, a customer service manager with Southwest Airlines, testified that at 2:54

p.m. on August 22, 2012, a one-way ticket to Los Angeles on flight number 360 was purchased in

the name of Martin Ruiz with a date of birth of August 27, 1988. The flight was scheduled to

depart Chicago at 8:30 p.m. that night and arrive in Los Angeles at 10:50 p.m. Defendant checked

in at 6:32 p.m. and boarded the aircraft at 8:27 p.m.

2 Officer Perez’s first name does not appear in the record.

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¶ 23 The State presented a stipulation that Dr. Ariel Goldschmidt, formerly an assistant medical

examiner, would testify that he performed the autopsy on Ruvalcaba. Goldschmidt recovered two

medium-caliber copper jacketed bullets from Ruvalcaba’s body. Ruvalcaba suffered numerous

gunshot wounds which injured both of his lungs, his liver, and the right and left atriums of his

heart. Goldschmidt opined that the cause of death was multiple gunshot wounds, and the manner

of death was homicide.

¶ 24 The State presented another stipulation that Chicago police forensic investigator David

Ryan would testify that on August 22, 2012, he recovered 11 fingerprint ridge impressions from

the interior and exterior of the Chrysler. Ryan also collected swabs from various locations inside

the Chrysler for possible cellular material, and recovered a red and black baseball cap from the

rear seat. The State offered a stipulation that forensic scientist Angela Kaeshamer conducted DNA

analysis on the swabs collected from the Chrysler and the baseball cap, and found that they

contained a mixture of profiles from multiple people. A major DNA profile from the cap did not

match defendant.

¶ 25 Tracy Konior, a forensic scientist specializing in firearms identification, testified that she

analyzed the two bullets recovered from Ruvalcaba’s body and determined that they were both

nine-millimeter and were fired from same firearm. Konior also analyzed a bullet recovered from a

truck, which was inconclusive. In addition, Konior analyzed the three fired cartridge cases

recovered from scene and found that they were all nine-millimeter and fired from same firearm.

¶ 26 Sheila Daugherty, a forensic scientist specializing in fingerprint analysis, testified that she

examined the 11 latent fingerprint lifts recovered from the Chrysler and concluded that all 11 prints

belonged to defendant. On cross-examination, Daugherty acknowledged that she did not know

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when those prints were left on the vehicle, or how long the prints had been on the vehicle. Some

of the lifts Daugherty received contained multiple prints that belonged to other people.

¶ 27 Chicago police homicide detective Gregory Jones testified that after interviewing the

witnesses at the scene of the shooting, he learned that he was looking for a heavyset Hispanic man

wearing a black t-shirt and red shorts who had exited and reentered a silver four-door Chrysler 300

that fled westbound on 47th Street from Wolcott. He also learned that a surveillance camera at the

children’s health clinic had captured part of the incident on video. In addition, Jones learned of the

incident that occurred with Leticia and Alexis Rios three blocks east of the murder, and that the

man who threatened to kill Alexis matched the description of the homicide offender. Jones was

given a license plate number for the Chrysler which he shared with assisting officers who searched

for the vehicle. Jones viewed the surveillance video from the clinic which showed the offender’s

vehicle arrive and park at the scene. The offender exited the front passenger seat of that vehicle

with a gun in his hand. The offender was wearing a dark-colored short-sleeve t-shirt and red shorts.

Still photos of the offender were made from the video. As the video was played for the jury a

second time in court, Jones narrated what was occurring.

¶ 28 About 7 p.m., Jones heard “a radio transmission from the gang enforcement unit” that the

vehicle had been located on 49th Place, about six blocks from the shooting, and was under

surveillance. Jones and his partner, Garcia, went to 49th Place. A van occupied by Martinez, Ojeda

and Barron arrived at that location and one of those men entered the Chrysler. The three men were

taken into custody. Later that night, Dafniy Ramirez and Fernando Blanco viewed lineups

containing Martinez, Ojeda and Barron, but could not identify any of the men. The three men were

subsequently released from custody.

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¶ 29 At the surveillance scene, Jones showed a still photo from the surveillance video to Vella.

Vella recognized the man in the photo as someone he had previous contact with and knew his

name was Martin Ruiz and his nickname was “Garbage.” Jones notified assisting units of

defendant’s name and the search for defendant began.

¶ 30 On the afternoon of August 22, Joseph Ramirez viewed a photo array and identified

defendant as the man he saw returning to the silver vehicle after hearing gunshots and seeing the

victim fall to the ground. Jones identified defendant in court. On August 28, Leticia Rios viewed

a photo array and identified defendant as the man who approached her vehicle, pointed a gun to

her son’s head and threatened to kill him. On September 6, Alexis Rios viewed a photo array and

identified defendant as the man who put a gun to his head and threatened to kill him.

¶ 31 An investigative alert and arrest warrant were issued for defendant. Jones also requested

assistance from the FBI to obtain a federal arrest warrant and locate defendant. On April 5, 2013,

the FBI notified Jones that defendant had been taken into custody in Crenshaw, California. Jones

and Garcia flew to Los Angeles, and on April 20, returned to Chicago with defendant. On April

21, Leticia, Blanco, and Joseph identified defendant in lineups. Dafniy viewed the lineup but was

unable to make an identification.

¶ 32 In closing argument, the prosecutor argued that the evidence showed defendant intended

to kill or cause great bodily harm to Ruvalcaba where he shot Ruvalcaba eight times – three times

in the abdomen, twice in each arm, and once in the groin. The prosecutor noted that the offense

also required that the evidence show that defendant performed the acts which caused Ruvalcaba’s

death. The prosecutor asked “[h]ow do we know that it was the defendant?” The prosecutor

reviewed the testimony of each eyewitness in detail, noted that the witnesses identified defendant,

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and that Officers Corona and Vella immediately recognized defendant in the photograph taken

from the surveillance video. The prosecutor pointed out that 11 of defendant’s fingerprints were

recovered from the Chrysler, and that defendant fled to Los Angeles the day after the murder. In

addition, the prosecutor noted that the State had to prove that defendant personally discharged a

firearm that proximately caused Ruvalcaba’s death. The prosecutor asked “[h]ow do we know

this?” and again referred to the eyewitness testimony.

¶ 33 In response, defense counsel argued that this was a case of mistaken identification by the

witnesses. Counsel asked, “how do we know that they’re wrong?” and then reviewed their

testimony in detail. Counsel argued that the testimony and identifications by the witnesses was

unreliable. Counsel further argued that the video was unreliable because it was only 11 seconds

long, grainy with shadows, and everything happened quickly. Counsel pointed out that the

fingerprint expert testified that she did not know when or how defendant’s prints were placed on

the vehicle or how long they had been there. Counsel noted that police found the owner of the car

and argued “no one came in here and testified that, oh, yeah, that’s my friend and I know that he's

familiar with these people or that he was in this car. Nobody came in here and said anything like

that.” Counsel concluded by arguing that defendant did not have to prove himself innocent, that it

was the State’s burden alone to prove him guilty beyond a reasonable doubt, and that the evidence

was insufficient to establish his guilt.

¶ 34 In rebuttal, the prosecutor argued that there was no mistaken identity, that all the witnesses

and police officers were not wrong, and that defendant was a cold-blooded murderer. The

prosecutor argued that the video was not grainy and that it corroborated the testimony from all the

witnesses. The prosecutor again reviewed the testimony from each eyewitness and argued that

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their identifications of defendant were reliable. Regarding the fingerprint testimony, the prosecutor

argued:

“11 matches. Coincidence? Mistaken? They could have been left any other time? You

didn’t hear any testimony of any other date other than August 21st of 2012. By August 21st

of 2012 at 7:00 p.m., three hours after he shot and killed Jaime Ruvalcaba, that car was

located, that car was processed and guess where it was processed from, the same area that

he was seen entering after the – on the video from the clinic after he shot and killed Jaime.”

The prosecutor further argued that defendant’s act of fleeing Chicago showed his consciousness

of guilt. In closing, the prosecutor argued:

“Ladies and gentlemen, the prints don’t lie, physical evidence doesn’t lie. Doesn’t

lie. It corroborates all of the witnesses. The video doesn’t lie. It corroborates all of the

evidence. We know it was the defendant and we have proven that beyond a reasonable

doubt. We are asking that you find him guilty of first-degree murder, for the first-degree

murder of Jaime Ruvalcaba. We are asking you, all of you, to find that he personally

discharged the firearm that caused Jaime’s death. And we are asking you because now you

know. As I told you before, we were going to come back in front of you. Now you know

and now you have heard all of the evidence. You have seen the evidence. And all of the

evidence only supports one verdict in this case. Find him guilty.”

¶ 35 The jury found defendant guilty of first-degree murder and found that he personally

discharged a firearm that proximately caused Ruvalcaba’s death. Defendant’s posttrial motion,

which did not raise an allegation of prosecutorial misconduct, was denied by the trial court.

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¶ 36 When imposing sentence, the trial court noted that the presentence investigation report

indicated that defendant had a past affiliation with the La Raza street gang, but he had no criminal

history which confirmed that. The court found that there was “no case that Mr. Ruiz did anything

that was motivated by gang animus,” and no motive for his actions. The trial court sentenced

defendant to 30 years’ imprisonment for the murder, and an additional 25-year sentencing

enhancement for personally discharging the firearm that caused Ruvalcaba’s death for an

aggregate sentence of 55 years’ imprisonment. The court gave defendant credit for 1490 days spent

in presentencing custody and assessed him $659 in fines, fees and court costs.

¶ 37 On appeal, defendant first contends that he was deprived of his right to a fair trial because

the prosecutor engaged in a pattern of pervasive prosecutorial misconduct. Defendant claims that

several times during trial the prosecutor elicited evidence suggesting that the shooting was gang-

related and that defendant was a gang member, in violation of the trial court’s ruling on defendant’s

motion in limine barring such evidence. Defendant also contends that the prosecutor improperly

shifted the burden of proof to him in her rebuttal argument regarding the fingerprint evidence by

arguing that defendant did not present evidence that he was inside the Chrysler on any other date

besides the day of the shooting. In addition, defendant argues that the prosecutor impermissibly

injected her personal opinion that he was guilty during her rebuttal argument.

¶ 38 Defendant acknowledges that he forfeited these claims for appeal because he did not object

to the alleged gang evidence or the prosecutor’s comments during trial and did not raise the issue

of prosecutorial misconduct in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186

(1988). He argues, however, that his claim is reviewable under the second prong of the plain error

doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Defendant claims that the repeated instances

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of prosecutorial misconduct created a pattern of unfairness that denied him a fair trial. He asserts

that regardless of the strength of the evidence of his guilt, the cumulative effect of the prosecutor’s

errors constituted reversible error entitling him to have his conviction reversed and his case

remanded for a new trial. The State responds that defendant’s claims are forfeited and cannot be

reviewed as plain error because no error occurred.

¶ 39 The plain error doctrine is a limited and narrow exception to the forfeiture rule that exists

to protect defendant’s rights and the reputation and integrity of the judicial process. People v.

Herron, 215 Ill. 2d 167, 177 (2005). To obtain plain error relief, defendant must demonstrate that

a clear or obvious error occurred, and either: (1) that the evidence was so closely balanced that the

error alone severely threatened to tip the scales of justice against him, or (2) that the error was so

serious that it affected the fairness of his trial and challenged the integrity of the judicial process.

People v. Sebby, 2017 IL 119445, ¶ 48. The burden of persuasion is on defendant, and if he fails

to meet his burden, his procedural default will be honored. People v. Hillier, 237 Ill. 2d 539, 545

(2010).

¶ 40 The first step of plain error review is to determine whether a clear or obvious error

occurred. Sebby, 2017 IL 119445, ¶ 49. Accordingly, we must first determine whether the

prosecutor introduced impermissible gang evidence, shifted the burden of proof to defendant in

her rebuttal argument, or injected her personal opinion that defendant was guilty.

¶ 41 Defendant contends that the State presented evidence that suggested that the shooting was

gang-related and that defendant was a gang member, in violation of the trial court’s ruling on the

motion in limine. Defendant argues that multiple police officers testified that they were gang

enforcement officers and that other gang enforcement officers were involved in the investigation.

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Specifically, defendant points out: (1) Cahue testified that he was assigned to the “Gang

Enforcement Unit;” (2) Hiatt testified that he told his partner, some detectives and “the gang team

members” who were present what he observed on the video; (3) Corona testified that he knew

defendant from the neighborhood and explained “I’m referring to the Back of the Yards, it’s known

as the La Raza neighborhood;” (4) Vella testified that his “last assignment was gang

investigations” and that August 21 was the first day he was with “the 6565 team, gang

investigations;” (5) Jones testified that he “monitored a radio transmission from the gang

enforcement unit;” and (6) Leticia told defendant that her son “was not a gang banger.” Defendant

argues that by introducing the word “gang” or “La Raza” into the trial seven times, the State

implied to the jury that the shooting was gang-related and that he was a gang member.

¶ 42 The State responds that there was no evidence presented that the shooting was gang-related

or that defendant was a gang member. The State argues that the officers merely mentioned their

unit of assignment or a unit of the police department that was assisting in the case, and Leticia

testified about what she said to defendant while he was holding a gun to her son’s head. The State

argues that none of this testimony violated the court’s ruling on defendant’s motion in limine. The

State points out that during sentencing, the trial court stated that there was “no case that Mr. Ruiz

did anything that was motivated by gang animus,” and argues that if the court did not think the

shooting was gang-related, it is unlikely the jury did. The State further asserts that it is not

surprising that defense counsel did not object to any of the testimony during trial because it did

not constitute gang evidence or violate the court’s ruling.

¶ 43 Evidence of gang membership and gang-related activity is admissible where it is relevant

to an issue in dispute, there is sufficient proof that membership is related to the charged offense,

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and its probative value is not substantially outweighed by its prejudicial effect. People v. Johnson,

208 Ill. 2d 53, 102 (2003). In this case, however, we find that the State did not present any evidence

that the shooting was gang-related or that defendant was a gang member.

¶ 44 We find the issue raised here similar to that addressed by this court in People v. Gales, 248

Ill. App. 3d 204 (1993). In Gales, the trial court ruled that the State could not introduce evidence

of the gang affiliation of any witness, and the State indicated it did not intend to offer any such

evidence during its case in chief. Gales, 248 Ill. App. 3d at 227-29. During trial, "[s]everal police

officers introduced themselves as 'gang specialist' assigned to 'gang crimes south' with their

assignment being 'gang suppression.' " Id. at 227. The defendant noted on appeal that the word

"gangs" was used more than 96 times during trial and argued that this use of the word indirectly

implied that he was a gang member. Id. This court pointed out that there was no testimony that

any of the defendants were gang members, no testimony about gang activity in the area, and no

evidence presented that the investigation was gang related. Id. at 228. We noted that the trial court's

pretrial ruling clearly barred testimony regarding gang affiliation, and found that the officers'

testimony identifying themselves as "gang crimes specialists" did not violate that ruling or infer

that the defendant was a gang member. Id. at 228-29.

¶ 45 In this case, the trial court’s ruling on defendant’s motion in limine precluded the State

from presenting evidence of “gang activity, neighborhood gang conflict and/or gang involvement

by Mr. Ruiz.” The record shows that the testimony quoted above were the only references to gangs

made during trial. Cahue and Vella merely identified their unit of assignment. Hiatt and Jones

merely stated that they shared or heard some information with other officers who were assigned to

the gang enforcement unit. Corona stated that the Back of the Yards neighborhood was known as

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the La Raza neighborhood, but never used the word “gang” or explained that La Raza was a gang.

There was no other mention of La Raza during trial, and no indication that the jury would have

known that La Raza was a gang. Leticia testified that she repeatedly yelled “just a lot of things that

started coming to mind” at defendant while she pleaded with him not to kill her son. There was no

evidence that the shooting was gang-related or that defendant was a gang member. In fact, during

sentencing the trial court made such a finding when searching for a motive for defendant’s actions.

Similar to Gales, we find that the State did not present any evidence that would cause the jury to

infer that the shooting was gang-related or that defendant was a gang member, and thus, it did not

violate the trial court’s ruling barring gang evidence. Accordingly, the challenged testimony was

not erroneous.

¶ 46 Defendant next alleges prosecutorial misconduct based on two comments the prosecutor

made during her rebuttal argument. A prosecutor is given considerable latitude in closing argument

and is allowed to comment on the evidence and any fair, reasonable inferences that can be drawn

therefrom. People v. Glasper, 234 Ill. 2d 173, 204 (2009). Comments made during closing

argument must be reviewed in context and in consideration of the entire closing argument of both

the State and defendant, and those invited or provoked by defense counsel's argument will not be

held improper. Id. Defendant's conviction will not be disturbed unless he demonstrates that the

challenged remarks were so prejudicial that he was denied real justice or that the verdict would

have been different absent the remarks. People v. Runge, 234 Ill. 2d 68, 142 (2009).

¶ 47 Initially, the parties disagree as to the proper standard of review. Defendant argues that

there is no dispute that the remarks were made, and no factual or credibility issues, therefore a de

novo standard applies. See People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (whether a prosecutor’s

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statements during closing argument were so egregious that they warrant a new trial is a question

of law that is reviewed de novo). Defendant acknowledges, however, that the appropriate standard

of review is unclear as the supreme court has applied both the de novo and abuse of discretion

standards for issues of prosecutorial misconduct in closing argument. See People v. Blue, 189 Ill.

2d 99, 128 (2000) (applying the abuse of discretion standard). Defendant asserts that regardless of

which standard is applied, the result here will be the same. The State acknowledges the conflicting

standards, but points out that this court recently determined that the propriety of remarks made

during closing argument should be reviewed under the abuse of discretion standard as applied in

Blue. People v. Phagan, 2019 IL App (1st) 153031, ¶ 54; but see People v. Cook, 2018 IL App

(1st) 142134, ¶ 64 (holding that the propriety of remarks made during closing argument is reviewed

for abuse of discretion, and whether improper remarks, if any, warrant a new trial is reviewed de

novo). Here, we find no error and would reach the same result under either standard of review.

¶ 48 Defendant contends that the prosecutor shifted the burden of proof to him in her rebuttal

argument. Defendant notes that in closing argument, defense counsel pointed out that the

fingerprint expert did not know when or how defendant’s fingerprints were placed on the Chrysler.

Defendant claims that the prosecutor shifted the burden of proof to him when she argued “11

matches. Coincidence? Mistaken? They could have been left any other time? You didn’t hear any

testimony of any other date other than August 21st of 2012.” Defendant claims that this comment

stated that he presented no evidence that he was inside the Chrysler on any date other than the day

of the shooting, and faulted him for failing to produce exculpatory evidence showing that his

fingerprints were left inside the Chrysler on another date.

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¶ 49 When viewed in context and in consideration of the entire closing arguments of the State

and defendant, we find that the prosecutor’s comment was made in direct response to defense

counsel’s argument that this was a case of mistaken identity and that it was unknown when

defendant’s fingerprints were left inside the Chrysler. Defense counsel had also argued that “no

one came in here and testified that, oh, yeah, that’s my friend and I know that he's familiar with

these people or that he was in this car. Nobody came in here and said anything like that.” The

record thus shows that defense counsel had argued that there was a lack of evidence proving that

defendant was inside the Chrysler. In response, in addition to the comment challenged by

defendant, the prosecutor further argued “By August 21st of 2012 at 7:00 p.m., three hours after

he shot and killed Jaime Ruvalcaba, that car was located, that car was processed and guess where

it was processed from, the same area that he was seen entering after the – on the video from the

clinic after he shot and killed Jaime.” The record thereby reveals that the prosecutor was arguing

that the only date in question in this case was August 21, and that this was not a case of mistaken

identity where the evidence showed that on the day of the shooting, defendant was observed at the

crime scene on the surveillance video, and three hours after the shooting, the Chrysler was located

in the same area and processed, at which time defendant’s fingerprints were found.

¶ 50 The record further reveals that the State never shifted the burden of proof to defendant, and

that the State’s burden was clearly conveyed to the jury. During closing argument, defense counsel

argued that defendant did not have to prove himself innocent and that it was the State’s burden

alone to prove him guilty beyond a reasonable doubt. In rebuttal, the prosecutor argued that the

State’s evidence established that defendant was correctly identified as the shooter and that “we

have proven that beyond a reasonable doubt.” Moreover, the record shows that following closing

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arguments, the trial court properly instructed the jury that “[t]he State has the burden of proving

the guilt of the defendant beyond a reasonable doubt and this burden remains on the State

throughout the case. The defendant is not required to prove his innocence.” Accordingly, the

prosecutor’s comment was not erroneous.

¶ 51 Defendant also contends that the prosecutor impermissibly injected her personal opinion

that defendant was guilty in her rebuttal argument when she commented “We know it was the

defendant and we have proven that beyond a reasonable doubt.” Defendant argues that this

comment many have induced the jury to trust the State’s judgment rather than its own view of the

evidence.

¶ 52 A prosecutor is prohibited from expressing her personal opinion about the defendant’s

guilt. People v. Whitlow, 89 Ill. 2d 322, 341 (1982). However, for the prosecutor’s argument to be

deemed improper, she must explicitly state that she is asserting her personal view. People v.

Anderson, 2011 IL App (1st) 071768, ¶ 61. A reviewing court will not infer that a prosecutor

injected her personal opinion into an argument where the record does not unambiguously indicate

that she did so. Id.

¶ 53 Here, the prosecutor did not explicitly state that she was offering her personal view or

opinion that defendant was guilty. Instead, her comment was such that the jury would have had to

infer that she was offering her personal opinion. When read in context, the record shows that the

prosecutor was responding to defense counsel’s argument of mistaken identity, reviewing the

testimony from each eyewitness, and arguing how all of the other evidence, including the video

and fingerprints, corroborated the testimony and proved that it was defendant who murdered

Ruvalcaba. The prosecutor’s comment was her summation of the evidence, not an improper

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expression of her personal opinion that defendant was guilty. We conclude that the prosecutor’s

use of the phrase “[w]e know” did not improperly align her with the jury or invoke the integrity of

her office to promote her personal opinion of defendant’s guilt. See People v. Walls, 87 Ill. App.

3d 256, 270 (1980) (prosecutor’s use of the phrase “we know” was not done to convey his personal

belief of defendant’s guilt, but rather, to comment on the credibility of defendant’s alibi witness).

Accordingly, we find no error with the challenged comment.

¶ 54 The record reveals that none of the testimony or comments challenged by defendant

constituted error. Consequently, because there was no error, the plain error doctrine cannot be

applied, and we honor defendant’s procedural default of the issue. Hillier, 237 Ill. 2d at 545.

¶ 55 Finally, defendant contends that his mittimus and fines and fees order must be corrected.

Defendant argues that his mittimus does not reflect sentencing credit for the days he served in

custody in California. He also argues that the $5 electronic citation fee and the $5 court system fee

were erroneously assessed and should be vacated from his fines and fees order. The parties agree

that this case must be remanded to the trial court to address the issues of correcting the mittimus

and the fines and fees order.

¶ 56 On February 26, 2019, while this appeal was pending, our supreme court adopted new

Illinois Supreme Court Rule 472, which sets forth the procedure in criminal cases for correcting

sentencing errors in, as relevant here, “the imposition or calculation of fines, fees, assessments, or

costs” and “the calculation of presentence custody credit.” Ill. S. Ct. R. 472 (a)(1), (3) (eff. Mar.

1, 2019). On May 17, 2019, Rule 472 was amended to provide that “[i]n all criminal cases pending

on appeal as of March 1, 2019, or appeals filed thereafter in which a party has attempted to raise

sentencing errors covered by this rule for the first time on appeal, the reviewing court shall remand

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to the circuit court to allow the party to file a motion pursuant to this rule.” Ill. S. Ct. R. 472(e)

(eff. May 17, 2019). “No appeal may be taken” on the ground of any of the sentencing errors

enumerated in the rule unless that alleged error “has first been raised in the circuit court.” Ill. S.

Ct. R. 472(c) (eff. May 17, 2019). Therefore, pursuant to Rule 472, we “remand to the circuit court

to allow [defendant] to file a motion pursuant to this rule,” raising the alleged errors regarding the

calculation of his presentence custody credit and the imposition of fees. Ill. S. Ct. R. 472(e) (eff.

May 17, 2019).

¶ 57 For these reasons, we remand this case to the circuit court of Cook County to address the

issues of correcting the mittimus and the fines and fees order, and affirm defendant’s conviction

¶ 58 Affirmed; remanded as to sentencing credit and fines, fees, and costs.

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