{ "id": 221444, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADELA CASTANEDA, Defendant-Appellant", "name_abbreviation": "People v. Castaneda", "decision_date": "1998-10-20", "docket_number": "No. 4-97-0872", "first_page": "779", "last_page": "791", "citations": [ { "type": "official", "cite": "299 Ill. App. 3d 779" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "617 N.E.2d 903", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "909" }, { "page": "908" }, { "page": "908" }, { "page": "908" }, { "page": "909" } ], "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928551 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "786" }, { "page": "785" }, { "page": "786" }, { "page": "786" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0778-01" ] }, { "cite": "652 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1330" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258733 ], "year": 1995, "pin_cites": [ { "page": "1064" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/1053-01" ] }, { "cite": "675 N.E.2d 910", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1996, "pin_cites": [ { "page": "934" }, { "page": "934" }, { "page": "934" }, { "page": "937", "parenthetical": "McMorrow, J., specially concurring, joined by Freeman, J." }, { "page": "937", "parenthetical": "McMorrow, J., specially concurring, joined by Freeman, J." }, { "page": "937", "parenthetical": "McMorrow, J., specially concurring, joined by Freeman, J." }, { "page": "937", "parenthetical": "McMorrow, J., specially concurring, joined by Freeman, J." } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295784 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "50-51" }, { "page": "51" }, { "page": "51" }, { "page": "57" }, { "page": "58" }, { "page": "58" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0001-01" ] }, { "cite": "470 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298734 ], "weight": 12, "year": 1985, "pin_cites": [ { "page": "16" }, { "page": "13" }, { "page": "1047" }, { "page": "17-18" }, { "page": "14" }, { "page": "1047-48" }, { "page": "11-12" }, { "page": "10" }, { "page": "1044" } ], "opinion_index": 0, "case_paths": [ "/us/470/0001-01" ] }, { "cite": "525 So. 2d 928", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7562512 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "930" }, { "page": "929" }, { "page": "930" }, { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/so2d/525/0928-01" ] }, { "cite": "119 N.J. 547", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 299628 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "565" }, { "page": "824" }, { "page": "576" }, { "page": "831" }, { "page": "576" }, { "page": "831" }, { "page": "575" }, { "page": "831" }, { "page": "575" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/nj/119/0547-01" ] }, { "cite": "568 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "1265" }, { "page": "1265" }, { "page": "1265" } ], "opinion_index": 0 }, { "cite": "142 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236913 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "323" }, { "page": "323" }, { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0258-01" ] }, { "cite": "605 N.E.2d 1064", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1066" } ], "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 854", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5153904 ], "year": 1992, "pin_cites": [ { "page": "857" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0854-01" ] } ], "analysis": { "cardinality": 1037, "char_count": 27856, "ocr_confidence": 0.761, "pagerank": { "raw": 1.303033631736081e-07, "percentile": 0.6226139052894589 }, "sha256": "73fa82d9c8f3bdbd454765c2a2eeaec253ae366b574449b79c72881c9a6cbbca", "simhash": "1:8bc8f35e3154280b", "word_count": 4726 }, "last_updated": "2023-07-14T17:02:33.989314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COOK and STEIGMANN, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADELA CASTANEDA, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GARMAN\ndelivered the opinion of the court:\nDefendant Adela Castaneda was convicted following a jury trial in the circuit court of Vermilion County of one count of unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(C) (West 1996)), one count of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 1996)), and two counts of criminal drug conspiracy (720 ILCS 570/405.1(a) (West 1996)). On December 24, 1997, she was sentenced to concurrent terms of 12 years\u2019 imprisonment on each of the possession charges and 6 years\u2019 imprisonment on each of the conspiracy charges. She argues on appeal that she was denied a fair trial when the prosecutor argued to the jury members that they had a duty to convict her. She argues, in addition, that she cannot be convicted of the inchoate crime of conspiracy when she was also convicted of the underlying principal offense. We agree.\nCONSPIRACY CONVICTIONS\nWe first address defendant\u2019s second issue. She argues, and the State concedes, that a person may not be convicted of both an inchoate offense and the underlying principal offense. 720 ILCS 5/8 \u2014 5 (West 1996). She may raise this issue on appeal, despite not having made the argument to the trial court, because the plain error rule applies. People v. Sonntag, 238 Ill. App. 3d 854, 857, 605 N.E.2d 1064, 1066 (1992).\nIt was error for the trial court to enter convictions and impose sentence on the conspiracy counts because the defendant was also convicted of the underlying principal offenses. We, therefore, vacate the convictions on the two counts of criminal drug conspiracy. However, as defendant and the State agree, if this is the only relief provided by this court, a resentencing hearing is not necessary. We, therefore, turn to the facts of the case.\nFACTS\nVermilion County sheriffs department investigator Rod Kaag was contacted by Jose Colunga on February 4,1997. Colunga, an informant, told Kaag that a large quantity of cocaine was about to be brought to a Hoopeston address by some people from Chicago. Kaag and other agents set up surveillance of the address given by Colunga. Colunga contacted Kaag a second time and told him that the drugs had arrived and that the people in the house needed scales to weigh the cocaine to repackage it for distribution. The police then arranged for Colunga to make a controlled purchase at the residence.\nKaag testified that while the officers watched the outside of the house, Colunga went inside carrying $300 in currency that had been photocopied for identification. When he left the house, he no longer had the money, but he was carrying a substance that field-tested positive for cocaine. Kaag obtained a search warrant for the house where defendant lived with her husband, Jose Mario Castaneda (Mario), and their children. Defendant, who is the sister of Colunga\u2019s wife, Sally, was inside the house when Colunga made the purchase. Mario arrived just prior to the execution of the search warrant. The police found four other adults and three children inside.\nJose Colunga testified that he had assisted the police on several occasions, in the hope that he could avoid going to prison on a pending marijuana charge. His wife told him that her sister, the defendant, told her that there \u201cwas going to be some stuff coming down\u201d from Chicago. When he was preparing to enter the house to make the controlled purchase, he was given $300 to purchase one-quarter ounce of cocaine. He testified that Estrella, one of the visitors from Chicago, quoted him the price. Later, he said he knew the price, \u201cCause that\u2019s what the prices are in Hoopeston.\u201d After the defendant opened the door for him, he told her that he had come to talk to Estrella about buying some cocaine. Defendant told him that \u201cthey couldn\u2019t do anything because they didn\u2019t have scales.\u201d Colunga said that he brought scales. Then he, Estrella, and one of the men went into the bedroom with the scales and closed the door. Once in the bedroom, he saw a \u201c[b]ig package of cocaine.\u201d He paid Estrella $300 for some cocaine that was cut from the big package and weighed on the scales. While these three were in the bedroom, the defendant was in the dining room \u201cwatching the doors so the kids won\u2019t get in.\u201d When he left, defendant was in the dining room or the kitchen.\nOn cross-examination, Colunga stated that defendant quoted him a price of $900 per ounce during a telephone conversation. On redirect, he explained that this conversation took place about an hour before he went to make the purchase. He said that his wife spoke to defendant on the phone. Then, he said that he actually spoke to defendant. Finally, on recross-examination, he stated that defendant called him looking for scales and that he asked her the price per ounce. She responded that it was $900. Both he and his wife talked to defendant during the call.\nEstrella was arrested that night and had the $300 in her possession. Defendant was arrested at her sister\u2019s home on April 1, 1997.\nIllinois State Police special agent Gregory Dixon testified that he spoke with the defendant after her arrest. After he informed defendant of her rights, she signed a waiver and agreed to the interview. Defendant told him that in late January, she and her husband had some visitors from Chicago.. One of them, Estrella, brought one-half kilogram of cocaine and tried, unsuccessfully, to sell it in Hoopeston. Wfiien the visitors got ready to leave, their car would not start. Defendant and her husband agreed to sell their car to them for $4,000, with a $2,000 down payment. The visitors left in the car, with the promise to return in several days with the $2,000 balance.\nDefendant came home on February 4, 1997, to find Estrella and her friends there. Estrella retrieved a blanket from the car and \u201cmade some kind of gesture that led [defendant] to believe that the blanket contained [ ] cocaine.\u201d Estrella took the blanket into the back bedroom. At approximately 8 p.m., Colunga called and asked for Mario. Colunga wanted to know if the cocaine had arrived. Defendant told him her husband was at work and that Colunga would have to talk to Mario. Colunga arrived a bit later to buy $300 worth of cocaine. He and Estrella went into the back bedroom. Defendant saw Estrella putting $300 in her vest pocket as Colunga was leaving.\nDixon testified that defendant indicated no surprise that cocaine was brought into her home on either occasion. She did not indicate that she had made any effort to get the cocaine out of her house. She was aware of the transaction with Colunga as it was taking place. It was Dixon\u2019s opinion that defendant\u2019s husband was \u201cdoing a lot of the actual dealing,\u201d but that defendant assisted him by \u201cfielding phone calls,\u201d for example.\nAt the conclusion of the State\u2019s closing argument, the prosecutor said:\n\u201cYour oath requires you to find the correct verdict on this evidence and on the law ***. I would suggest your oath requires you to find the Defendant guilty on all of the charges.\nYou people came in here yesterday *** and you took on a duty just like the Judge *** when he became a judge, I took on one, [and] [the assistant Attorney General] took on one when we became prosecutors and [defense attorney] took on one when he became a defense lawyer. Your duty is you are part of the system ***. When a jury comes into a courtroom and has evidence like this presented to it and it is unrebutted evidence, it is not living up to your oath, you are not doing your duty if you let her walk out of here.\u201d\nDefense counsel objected and the trial court overruled the objection. The prosecutor then concluded:\n\u201cBecause on the evidence you have heard you will not be living up to your duty to the system, to the People of the State of IIlinois[,] if this type of evidence lets someone walk out of the courtroom.\u201d\nDefendant\u2019s posttrial motion raised the issue of improper closing argument, specifically the prosecutor\u2019s remarks regarding the duty of the jurors to convict. The motion was denied on September 12, 1997, and sentence was imposed.\nPROSECUTORIAL MISCONDUCT\nDefendant argues on appeal that the prosecutor\u2019s remarks to the jurors on their duty were improper and, because of those remarks and because the trial court erred by overruling her objection, she was denied a fair trial.\nAlthough attorneys are allowed latitude in closing arguments, reversible error results when comments by a prosecutor \u201cengender substantial prejudice against a defendant [citation], such that it is impossible to say whether or not a verdict of guilt resulted from those comments.\u201d People v. Henderson, 142 Ill. 2d 258, 323, 568 N.E.2d 1234, 1265 (1990). The State argues that the comments were not improper, that they:\n\u201cdo not suggest a duty to convict but rather a duty to review the evidence, apply it to the law given the jury by the court, and reach the inescapable conclusion that the law required the conviction of defendant under these facts.\u201d\nDefendant cites two cases from other jurisdictions and one United States Supreme Court case in support of her argument that it is improper for a prosecutor to argue to a jury that failure to convict is a failure to do its duty.\nIn New Jersey v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990), the Supreme Court of New Jersey reversed a conviction on other grounds and, then, in dicta, discussed the allegations of prosecutorial misconduct because the court had concluded that \u201cthe prosecutor, if he did not cross the line of impropriety, came perilously close to committing reversible error.\u201d Pennington, 119 N.J. at 565, 575 A.2d at 824. One of the six separate instances of prosecutorial misconduct discussed was the making of \u201cremarks implying that jurors will violate their oaths if they fail to convict,\u201d which the court found \u201cimproper.\u201d Pennington, 119 N.J. at 576, 575 A.2d at 831. The court concluded:\n\u201cAlthough the prosecution in a criminal case may use forceful language in summing up the State\u2019s case [citation], it may not, as here, explicitly tell the jurors that they are obligated by their oath to return a particular verdict.\u201d Pennington, 119 N.J. at 576, 575 A.2d at 831.\nThe prosecutor in Pennington asked the jury to \u201c \u2018live up to your oath and apply [the] law\u2019 \u201d (Pennington, 119 N.J. at 575, 575 A.2d at 831) and to \u201c \u2018return the verdict that\u2019s called for by your oath, by the law, [and] by the evidence\u2019 \u201d (emphasis in original) (Pennington, 119 N.J. at 575, 575 A.2d at 831).\nIn Redish v. State of Florida, 525 So. 2d 928, 930 (Fla. Dist. Ct. App. 1988), the Florida court reversed and remanded where the prosecutor had made repeated improper comments during closing argument. One of the four comments objected to at trial by the defendant was the statement, \u201c \u2018Gentlemen, if you succumb to the defense argument, you would be in violation of your oath of jurors.\u2019 \u201d Redish, 525 So. 2d at 929. The trial court sustained the objection and instructed the jury to disregard it. Nevertheless, on appeal, the court found this, and another comment made by the State, to be \u201cimproper and sufficiently prejudicial to constitute reversible error.\u201d Redish, 525 So. 2d at 930. The quoted comment was \u201can impermissible attempt by the prosecution to instruct the jury as to its duties and functions.\u201d Redish, 525 So. 2d at 930.\nBoth Pennington and Redish relied on the decision of the United States Supreme Court in United States v. Young, 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985), also cited by defendant. In Young, the Court held that it was \u201cinappropriate and amount[ed] to error\u201d for a prosecutor to argue during closing argument that the jury would not be doing its job if it did not convict the defendant. Young, 470 U.S. at 16, 84 L. Ed. 2d at 13, 105 S. Ct. at 1047. The majority found that reversal was not necessary, however, because the defendant did not object at trial and defense counsel\u2019s own inappropriate remarks invited the prosecutor to respond in kind. Young, 470 U.S. at 17-18, 84 L. Ed. 2d at 14, 105 S. Ct. at 1047-48.\nIt is clear in this case that the prosecutor\u2019s remarks were inappropriate. Unlike in Young, however, the defendant in this case made the proper objection at trial and it was overruled. Defendant argues that reversal is required. The State urges this court to engage in harmless error analysis.\nDefendant cites the recent discussion of the supreme court in People v. Kidd, 175 Ill. 2d 1, 50-51, 675 N.E.2d 910, 934 (1996), in support of her contention that the trial court committed reversible error by overruling her objection. In Kidd, the prosecutor argued to the jury at the sentencing phase in a capital murder trial that defense evidence regarding the effect on defendant of his father\u2019s execution was \u201c \u2018the excuse that they want to utilize for you to abrogate your oath.\u2019 \u201d Kidd, 175 Ill. 2d at 51, 675 N.E.2d at 934. The trial court sustained the defendant\u2019s objection and instructed the jury to disregard this comment. The supreme court held \u201cthat the trial judge\u2019s prompt action in sustaining the defendant\u2019s objection was sufficient to cure any prejudice the comment might otherwise have engendered.\u201d Kidd, 175 Ill. 2d at 51, 675 N.E.2d at 934.\nKidd, thus, stands for the proposition that the trial court can cure the error of improper argument by sustaining a timely objection and properly instructing the jury. Defendant cites the special concurrence, which calls for such prosecutorial misconduct to be \u201cstrongly condemned\u201d by the court. Kidd, 175 Ill. 2d at 57, 675 N.E.2d at 937 (McMorrow, J., specially concurring, joined by Freeman, J.). The implication that the jurors \u201cwould he violating their oaths\u201d (emphasis in original) (Kidd, 175 Ill. 2d at 58, 675 N.E.2d at 937 (McMorrow, J., specially concurring, joined by Freeman, J.)) is, according to the concurring opinion:\n\u201c[A] misstatement of the law [that] cannot be lightly glossed over as inadvertent or insignificant. In my opinion, merely holding that any error was cured by the trial court\u2019s sustaining the defense objection to the remark does not adequately dispose of the issue.\u201d Kidd, 175 Ill. 2d at 58, 675 N.E.2d at 937 (McMorrow, J., specially concurring, joined by Freeman, J.).\nThe concurrence concluded that \u201cthe conduct described herein borders on constituting reversible error.\u201d Kidd, 175 Ill. 2d at 59, 675 N.E.2d at 937 (McMorrow, J., specially concurring, joined by Freeman, J.).\nWe decline to hold that it is reversible error per se when a trial court fails to properly rule on defendant\u2019s timely objection to improper argument. We are persuaded by the language of Young:\n\u201cInappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. Instead, *** the remarks must be examined within the context of the trial to determine whether the prosecutor\u2019s behavior amounted to prejudicial error. In other words, the Court must consider the probable effect the [remarks] would have on the jury\u2019s ability to judge the evidence fairly.\u201d Young, 470 U.S. at 11-12, 84 L. Ed. 2d at 10, 105 S. Ct. at 1044.\nHARMLESS ERROR ANALYSIS\nThe State argues that harmless error analysis is required. We agree and, thus, turn to the record to determine if it is \u201cimpossible to say whether or not a verdict of guilt resulted from those comments.\u201d Henderson, 142 Ill. 2d at 323, 568 N.E.2d at 1265. Error is harmless if, \u201chad the error not been committed, the defendant still would not have been entitled to prevail.\u201d People v. Fomond, 273 Ill. App. 3d 1053, 1064, 652 N.E.2d 1322, 1330 (1995). The standard of review applied to prosecutorial comments is whether \u201cthe evidence of his guilt was substantial and was not closely balanced.\u201d Henderson, 142 Ill. 2d at 323, 568 N.E.2d at 1265.\nThe State argued that defendant was guilty of delivery of cocaine and possession of cocaine with intent to deliver based on a theory of accountability. A person is legally accountable for the conduct of another when:\n\u201cEither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d 720 ILCS 5/5 \u2014 2(c) (West 1996).\nAt trial, the State argued that defendant provided her visitors with several types of aid, with the intent to help them deliver cocaine: she permitted them to use her home; she quoted a price to a potential buyer; she admitted the buyer into her home, knowing that he was there to buy drugs; she facilitated the sale by helping to obtain a scale; she acted as a lookout during the transaction; and she fielded phone calls for the operation. The State also argued that she and her visitors jointly possessed the cocaine.\nDefendant admitted to special agent Dixon that she was aware of the presence of cocaine in her home and of her visitors\u2019 intention to sell the drugs in Hoopeston. This falls short of proving that she permitted them to use her home with the intent of promoting or facilitating their illegal conduct.\nKaag testified that Colunga \u201ctold me what [defendant] had stated the prices would be,\u201d specifically, $1,000 an ounce or $300 for one-quarter ounce of cocaine. Later, he testified that Colunga did not tell him whether he got this information from defendant or from someone else. Colunga himself offered several different explanations for his knowledge of the $300 price for one-quarter ounce of cocaine. On direct examination, when asked how he knew how much money to bring for the buy, he said, \u201cI don\u2019t know. I think one of the ladies told me, quoted me.\u201d When asked which lady, he replied, \u201cEstrella.\u201d The prosecutor asked again, \u201cHow did you know the prices when you talked to [Kaag] on the phone?\u201d The following exchange then took place:\n\u201cA. She had told me that already.\nQ. Who had?\nA. Estrella.\nQ. When?\nA. Earlier that day.\u201d\nNot content with these answers, the prosecutor later returned to the subject:\n\u201cQ. Why [did the police give you] $300?\nA. Cause I was supposed to get a quarter ounce for them.\nQ. Okay. At this time had you talked to Estrella on that day?\nA. No.\nQ. So how did you know a quarter ounce was $300?\nA. Cause that\u2019s what the prices are in Hoopeston.\u201d\nOn cross-examination, Colunga said that defendant quoted a price of $900 per ounce over the phone. He was not asked whether he spoke to her directly. He was not asked how he knew that one-quarter ounce would be $300, if an ounce cost $900. Nor was he asked to explain the discrepancy between this statement and the $1,000 price he quoted to Kaag.\nFinally, on redirect, Colunga was questioned again about the price:\n\u201cQ. You said you talked to [defendant] on the phone once, she quoted you a price, about $900 an ounce from the Chicago people, right?\nA. (Affirmative nod given.)\n* * *\nQ. And did you actually talk[ ] to [defendant] at that time?\nA. My wife did.\nQ. Didn\u2019t you just say before that [defendant] told you the 900? A. Yeah.\nQ. So she did, didn\u2019t she?\nA. Yeah.\nQ. So you talked to her?\nA. Right.\u201d\nIt is not certain that Colunga spoke directly to defendant about the price of cocaine. Further, if they did speak, there was no testimony about the conversation itself from which to determine whether she spoke as a seller quoting a price or as one who also knew \u201cwhat the prices are in Hoopeston.\u201d The only detail of the alleged conversation acknowledged by Colunga was that defendant told him the price was $900 per ounce. This is not consistent with his statement to Kaag. There is, thus, some evidence, but not substantial evidence, that defendant quoted drug prices to Colunga with the intent to facilitate a sale.\nThe State also argues that defendant aided the drug dealers by knowingly admitting Colunga into her home for the purpose of buying drugs. Further, the State points to Colunga\u2019s testimony on redirect when he answered, \u201cNo,\u201d when asked if the people from Chicago would have sold to him if defendant had not asked him into the house. As the State suggested in its closing argument, he may have meant that the people from Chicago would not sell to anyone unless someone known to them, such as defendant, vouched for the buyer. He may have meant that the transaction could not have taken place if he had not been able to gain entrance to the house. If a police informant had gained entrance to the home of a mere acquaintance for the purpose of buying cocaine, the testimony on this point would have greater weight. Defendant and Colunga, however, are related as in-laws. Thus, it is not particularly significant that she readily allowed him into her home.\nKaag also testified that when he spoke to Colunga by telephone the second time on February 4, 1997, Colunga told him that \u201cthey *** were attempting to locate scales so they could weigh the cocaine down for distribution.\u201d He did not indicate whether \u201cthey\u201d referred to the three visitors from Chicago or to all of the adults in the house, including defendant. Later, Kaag testified that Colunga told him that Mario was out trying to find scales. Kaag was not certain whether Colunga said that defendant was also looking for scales.\nColunga testified that when he went to the door of defendant\u2019s house and told her that he was there to \u201ctalk to Estrella,\u201d defendant \u201cstated they couldn\u2019t do anything because they didn\u2019t have scales.\u201d He told her that he had brought some with him. It would have been helpful if Colunga had been asked to quote defendant\u2019s exact words. Did she say, \u201cWe can\u2019t do anything because we don\u2019t have scales?\u201d or \u201cThey can\u2019t do anything?\u201d Again, it is unclear whether she was actively aiding the drug dealers and should be held accountable, or whether she was merely tolerating their presence in her home because of her husband\u2019s involvement. At the very end of his testimony, Colunga did state that he spoke directly with defendant on the telephone and that she was looking for scales. The testimony regarding the scales is suggestive of defendant\u2019s guilt but not overwhelming.\nThe State also asserts that defendant acted as a \u201clookout\u201d during the drug transaction, which took place in a bedroom of her home with the door closed, while she was either in the dining room or the kitchen. The only testimony on this point was Colunga\u2019s conclusory statement that defendant watched the door so that her children would not get into the bedroom. If she was, in fact, merely trying to shield her children from the conduct of other adults in her home, this is equivocal evidence of aiding and abetting the drug dealers.\nDefendant cooperated with special agent Dixon, admitting that she was aware on both occasions when cocaine was brought into her home by persons intending to sell it in Hoopeston. According to Dixon, defendant said that Colunga called on February 4, 1997, inquiring about the arrival of the cocaine, and defendant told him that he would have to speak to Mario, who was at work. This contradicts Colunga\u2019s version of the phone call. Dixon testified that he was \u201cconfident that she had knowledge of the cocaine being in her residence.\u201d This much she admitted. It was Dixon\u2019s \u201copinion that, um, she was \u2014 she was, um, assisting, um, with fielding phone calls.\u201d There is little evidence, however, other than Dixon\u2019s opinion, that defendant took orders or arranged for delivery of drugs over the telephone.\nThe final basis argued for defendant\u2019s guilt is that she, jointly with the dealers from Chicago, possessed one-half kilogram of cocaine. The State argued constructive possession at length in closing but does not discuss this issue in its brief. The evidence showed that Estrella, on two occasions, brought a quantity of cocaine into defendant\u2019s home, either under her clothing or wrapped in a blanket. Estrella made no secret of the fact that she was carrying cocaine. Defendant was aware of its presence and did nothing to try to prevent Estrella from bringing it into her home. There was no evidence that defendant ever saw or touched the cocaine or that she asserted any control over it.\nThe State did present some evidence in support of each of its claims that defendant aided and abetted in the possession and delivery of cocaine. However, the evidence on each point was equivocal. Considering all of the facts and circumstances, the evidence of defendant\u2019s guilt is not overwhelming. The questions that we must answer are whether the evidence of guilt is substantial and whether it is closely balanced. We find the evidence that defendant aided or is otherwise accountable for the actions of Estrella and others is less than substantial and that it is indeed closely balanced. Because of this, the prosecutor\u2019s improper remarks to the jury members that it was their duty to convict defendant might well have tipped the scales in the State\u2019s favor. This, unless corrected during trial, constitutes reversible error.\nCiting the decision of this court in People v. Perkins, 247 Ill. App. 3d 778, 786, 617 N.E.2d 903, 909 (1993), the State also argues that any error was negated by the trial court\u2019s proper instruction on the law applicable to closing argument:\n\u201c \u2018Closing arguments are made by the attorneys to discuss the facts and circumstances in the case, and should be confined to the evidence and to reasonable inferences to be drawn from the evidence. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.\u2019 \u201d\nSee Illinois Pattern Jury Instructions, Criminal, No. 1.03 (3d ed. 1992). At issue in Perkins were two \u201cinflammatory remarks\u201d made by the prosecutor during closing argument. Perkins, 247 Ill. App. 3d at 785, 617 N.E.2d at 908. The defendant objected to the first remark at trial. The trial court did not sustain the objection but \u201cinstructed the prosecutor to \u2018Q]ust argue the facts.\u2019 \u201d Perkins, 247 Ill. App. 3d at 786, 617 N.E.2d at 908. Defendant did not object to the second remark, thus waiving consideration on appeal. We noted, \u201cAny error resulting from the prosecutor\u2019s comments is usually cured when the trial court sustains [an] objection or admonishes the jury.\u201d Perkins, 247 Ill. App. 3d at 786, 617 N.E.2d at 908. In Perkins, in addition to admonishing the prosecutor to limit his remarks to the facts, the trial court instructed the jury that \u201c \u2018[n]either sympathy nor prejudice should influence you,\u2019 \u201d as well as delivering the instruction quoted above. Perkins, 247 Ill. App. 3d at 786, 617 N.E.2d at 909.\nIn the present case, unlike in Perkins, the trial court overruled the defendant\u2019s objection, did not instruct the prosecutor to limit his remarks to the facts, and did not make specific reference in its instructions to the prosecutor\u2019s improper remarks regarding the duty of jurors.\nThe jury instructions in this case were insufficient to cure the error caused by the improper remarks and the overruling of defendant\u2019s objection.\nCONCLUSION\nWe conclude that the inappropriate remarks of the prosecutor during closing argument and the failure of the trial court to sustain defendant\u2019s objection and properly admonish the jury may have influenced the verdict. We, therefore, reverse defendant\u2019s conviction and remand for a new trial.\nReversed and remanded with directions.\nCOOK and STEIGMANN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GARMAN" } ], "attorneys": [ "Daniel D. Yuhas and John M. McCarthy, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Michael D. Clary, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADELA CASTANEDA, Defendant-Appellant.\nFourth District\nNo. 4\u201497\u20140872\nOpinion filed October 20, 1998.\nDaniel D. Yuhas and John M. McCarthy, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nMichael D. Clary, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." }, "file_name": "0779-01", "first_page_order": 797, "last_page_order": 809 }