Trial Court Should Have Allowed Defendant To Introduce Evidence Of His Prior Drug Acquittal

People v. Rosado, 2017 IL App (1st) 143741 (August). Episode 414 (Duration 9:02)

It was error to admit a drug deal defendant was acquitted of or he should have been allowed to tell the jury he was not guilty of that charge.

Delivery To Undercover

Defendant faced several drug delivery charges for deliveries to an undercover spread over three days.

The State elected to try the later charges first.

The state was not allowed to get into the first two transactions in this first trial because the evidence was more prejudicial than probative and that the jury might convict Rosado based on the other-crimes evidence.

First Trial

At the jury trial, Rosado argued that his brother, Javier Moreno, had sold the drugs; Rosado was acquitted of the later charges in this first trial.

Second Trial

Before trial in this case (the second trial), the State nevertheless moved to admit evidence of the later incident as “other crimes” evidence, to show identity.

The trial court admitted the evidence over Rosado‘s objection, without referencing whether the evidence was more probative than prejudicial.

The trial court also denied Rosado’s request to inform the jury that he had been acquitted of selling drugs on the later date. Rosado’s counsel argued that Gonzalez had little opportunity on March 29 to successfully identify Rosado and that Gonzalez had confused Rosado for his brother, Moreno, who was being investigated during the same time frame.

Officers testified they could tell them apart, although they did look similar.

One was older and a little taller. They had different mannerisms and defendant had a tatoo on his hand that his brother did not not have.

The police testified that the same person did the deal both days and that the brother was not there. He was convicted of this one.

Core Issue

The State argues that Officer Gonzalez’s identification of Rosado was the core issue at trial and the later drug deal “lent credibility to the officer’s identification, showed that a relationship between the parties was established, and gave a more complete picture of the crime charged.”

But here, the State submitted evidence from a later sale.

The officers did not explain how their ability to recognize Rosado on the earlier deal, both in person and in the photo array that same day, was somehow increased based on what they saw six days later. Further, the later deal evidence could not explain how the buyer-seller relationship had already been established during the earlier deal.

Error To Admit

The trial court should have allowed Rosado to introduce evidence of his acquittal. The acquittal was relevant, in that it made “the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Ill. R. Evid. 401.

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

This jury had to actively decide who sold the drugs on the later day.

The evidence of the later acquittal would have provided the jury with a “complete context” for Officer Gonzalez’s allegations that Rosado had sold him drugs that day—especially in light of Officer Gonzalez’s vehement protestations that Rosado, not Moreno, had sold the drugs on the later deal.

The acquittal would have strongly impeached Officer Gonzalez’s testimony, and he was the most consequential witness against Rosado—the only officer who saw the drug seller up close.

No Mini Trial

When admitting other-crimes evidence, we often warn trial courts not to allow a “minitrial” on the other crime, since that could confuse the jury and waste time. 

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

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

A question of basic fairness must be dealt with.

Order Of The Trials

The State chose to try the March 29 case before the March 23 case.

Rosado, for whatever reason, was acquitted.

And yet, the State was allowed to proceed with the March 23 case as though the acquittal never happened and re-present the March 29 evidence to a second jury, forcing Rosado to defend himself again.

Further, the trial court allowed the State to use other-crimes evidence in this case after having denied leave to do so in the March 29 case, concluding there that the evidence was more prejudicial than probative. The record does not reveal a sound reason for why the trial court made an about-face and ruled to the contrary here.

Unreasonable

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

Improper admission of other-crimes evidence is harmless if the defendant has not been prejudiced or denied a fair trial, and the State must show beyond a reasonable doubt that the result would have been the same without the improper admission.

Not Harmless

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

The case depended on Officer Gonzalez, who had also been investigating Moreno at the same time and admitted he could not remember which days he had bought drugs from Moreno.

There was no physical evidence tying the drugs or the money to Rosado.

Officer Gonzalez’s testimony might have been sufficient to support a conviction, but that is not the same thing as “overwhelming” evidence. The court will also consider whether the other crimes evidence was a “material factor” in the conviction. The evidence of the later drug deal was definitely a “material factor” in the jury’s decision.

Holding

Accordingly, the trial court abused its discretion in admitting this evidence because it could not bolster identification (the only basis on which it was admitted) and had no other relevance; it also was, as such, more prejudicial than probative.

Rosado is entitled to a new trial.

Reversed and remanded with instruction that the case go to a new judge. Ouch.