{ "id": 5575385, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL FIGUEROA, Defendant-Appellant", "name_abbreviation": "People v. Figueroa", "decision_date": "2003-06-30", "docket_number": "No. 1\u201401\u20141892", "first_page": "665", "last_page": "674", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 665" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "227 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793702 ], "year": 1992, "pin_cites": [ { "page": "945-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0936-01" ] }, { "cite": "269 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365894 ], "year": 1994, "pin_cites": [ { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0797-01" ] }, { "cite": "192 Ill. 2d 592", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453265 ], "year": 2000, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0592-01" ] }, { "cite": "305 Ill. 530", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2430506 ], "year": 1922, "pin_cites": [ { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/ill/305/0530-01" ] }, { "cite": "357 Ill. 133", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281416 ], "year": 1934, "pin_cites": [ { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/ill/357/0133-01" ] }, { "cite": "663 N.E.2d 503", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "res gestae disavowed as it serves only to confuse the determination of the admissibility of out-of-court statements or evidence of other crimes" } ], "opinion_index": 0 }, { "cite": "215 Ill. Dec. 492", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1996, "pin_cites": [ { "parenthetical": "res gestae disavowed as it serves only to confuse the determination of the admissibility of out-of-court statements or evidence of other crimes" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156753 ], "year": 1996, "pin_cites": [ { "parenthetical": "res gestae disavowed as it serves only to confuse the determination of the admissibility of out-of-court statements or evidence of other crimes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0871-01" ] }, { "cite": "644 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "res gestae is no longer in use" } ], "opinion_index": 0 }, { "cite": "206 Ill. Dec. 9", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1994, "pin_cites": [ { "parenthetical": "res gestae is no longer in use" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381870 ], "year": 1994, "pin_cites": [ { "parenthetical": "res gestae is no longer in use" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0953-01" ] }, { "cite": "636 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "E J. Greiman, specially concurring" } ], "opinion_index": 0 }, { "cite": "201 Ill. Dec. 133", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1992, "pin_cites": [ { "parenthetical": "E J. Greiman, specially concurring" } ], "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680617 ], "year": 1992, "pin_cites": [ { "parenthetical": "E J. Greiman, specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0740-01" ] }, { "cite": "560 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "res gestae is no longer a term recognized by the Illinois courts" } ], "opinion_index": 0 }, { "cite": "148 Ill. Dec. 291", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1990, "pin_cites": [ { "parenthetical": "res gestae is no longer a term recognized by the Illinois courts" } ], "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2588703 ], "year": 1990, "pin_cites": [ { "parenthetical": "res gestae is no longer a term recognized by the Illinois courts" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0968-01" ] }, { "cite": "692 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "Illinois has abandoned the concept of res gestae" } ], "opinion_index": 0 }, { "cite": "229 Ill. Dec. 552", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1998, "pin_cites": [ { "parenthetical": "Illinois has abandoned the concept of res gestae" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821413 ], "year": 1998, "pin_cites": [ { "parenthetical": "Illinois has abandoned the concept of res gestae" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0087-01" ] }, { "cite": "141 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238549 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/141/0001-01" ] }, { "cite": "37 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864783 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0062-01" ] }, { "cite": "22 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788568 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0175-01" ] }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "143 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591334 ], "year": 1991, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0138-01" ] }, { "cite": "321 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132390 ], "year": 2001, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0013-01" ] }, { "cite": "172 Ill. 2d 484", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55985 ], "year": 1996, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0484-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "year": 1998, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "307 Ill. App. 3d 518", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173523 ], "year": 1999, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0518-01" ] }, { "cite": "313 Ill. App. 3d 491", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186515 ], "year": 2000, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0491-01" ] }, { "cite": "316 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096637 ], "year": 2000, "pin_cites": [ { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0874-01" ] }, { "cite": "143 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591446 ], "year": 1991, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0435-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "161 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783177 ], "year": 1994, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0119-01" ] }, { "cite": "308 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261407 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0093-01" ] } ], "analysis": { "cardinality": 1022, "char_count": 20560, "ocr_confidence": 0.756, "pagerank": { "raw": 7.053695016019044e-08, "percentile": 0.4253693941229778 }, "sha256": "0c4a1a1b2d93562639cfd9c811d060432136e14aadb12018de37700953fa6c61", "simhash": "1:f90061347becd7fb", "word_count": 3402 }, "last_updated": "2023-07-14T21:38:13.673521+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL FIGUEROA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nA jury found defendant, Miguel Figueroa, guilty of first degree murder and the trial court sentenced him to 60 years in prison. Defendant appeals arguing that his conviction should be reversed because (1) the trial court admitted evidence of his participation in other, uncharged crimes including robbery, conspiracy to sell drugs and possession of a controlled substance with the intent to deliver, but failed to instruct the jury that other-crimes evidence should only be considered for a limited purpose and was not evidence of guilt; (2) trial counsel\u2019s failure to provide the court with a limiting instruction relating to other-crimes evidence denied defendant effective assistance of counsel; (3) he was denied a fair trial because of the prosecutor\u2019s closing statement that to consider the second degree murder instruction would be a \u201cslap\u201d to the victim; and (4) the mittimus must be corrected to reflect a credit for 2,814 days served while in custody.\nThe State concedes that the mittimus is incorrect and should reflect the defendant had spent 2,814 days in custody, having been arrested on August 6, 1993, and sentenced on April 19, 2001.\nAs to the other issues raised by defendant, we affirm for the reasons set forth below.\nAfter separate but simultaneous jury trials, defendant and Eduardo Estremera were found guilty of first degree murder, although the jury acquitted defendant of the offense of armed robbery. Defendant appealed his conviction for first degree murder and this court reversed the conviction and remanded for a new trial. People v. Figueroa, 308 Ill. App. 3d 93 (1999).\nIn the second trial, Xavier Burbano testified that he and Dmitry Rabin developed a plan in August 1993 to secure some marijuana and sell the product to their friends at a profit.\nXavier made contact with an old acquaintance named Alex Ojea, who put him in touch with people who could supply the 10 pounds of marijuana that Xavier and Dmitry sought. The 10 pounds were to cost $10,000 plus a $500 commission for Ojea.\nXavier and Dmitry secured the $10,500 and thereafter arranged to meet at a car wash in Chicago to complete the transaction. It was agreed that Dmitry would hold the money while Xavier negotiated the exchange. At that time, Dmitry had approximately $11,500 on his person.\nXavier and Dmitry drove to the rendezvous, where they met Ojea and waited until defendant and Estremera arrived in defendant\u2019s red Astro van. Estremera brandished a gun and Ojea explained that Xavier and Dmitry had nothing to worry about and they should continue their conversation, although Xavier and Dmitry were unarmed. Finally after some discussion Estremera aimed the gun at Xavier and said he looked like \u201c5-0,\u201d meaning a police officer. Defendant and Estremera then drove off without concluding the transaction. Ojea stated that he would attempt to revive the transaction without any guns being involved.\nXavier further testified that the transaction was later revived and, that afternoon, Estremera and defendant again rendezvoused with Dmitry, Xavier and Ojea. Dmitry had brought a shotgun, which had been placed in the trunk of his car. The procession continued driving a few blocks and finally stopped across from a park in a residential area.\nAfter the parties exited their motor vehicles, Estremera pointed a \u201cbig revolver\u201d at Dmitry and Xavier, and Xavier then asked to see the marijuana. Ojea left and returned a few moments later with a small cellophane bag of marijuana. Xavier testified that he refused Ojea because the entire situation intimidated him and he wished to leave. At that point, Xavier stood at the passenger side of Dmitry\u2019s car, defendant stood a few feet away and Dmitry stood with his back to Estremera at the driver\u2019s side. The defendant then asked \u201c[wjho\u2019s got the money!?]\u201d and Dmitry answered that he had the money. At that point, defendant raised his arm and shot at Dmitry across the car. Scientific testimony later showed that the bullet was in a downward direction, contrary to defendant\u2019s testimony that he fired the weapon in the air.\nXavier further testified that after he began to run away, he heard five or six \u201cfirecracker shots or pops\u201d that were distinctly different from the loud noise the defendant\u2019s gun had produced. Xavier then returned to Dmitry, lying on the ground, who died in his arms.\nXavier testified that at the beginning of the day, Dmitry had approximately $11,500 in $100 bills. He further testified that he did not remove any part of the funds.\nAnother witness testified that she observed Estremera firing a gun near Dmitry\u2019s car three or four times. The witness further stated that she did not observe Xavier taking anything from the victim\u2019s person. Another witness observed that the shooter had crouched down and taken something from the victim\u2019s pocket or waistband. The witness could not identify what was taken but stated that it was held in the shooter\u2019s closed fist as he stepped into his motor vehicle.\nThe police officer testified that, the next day, pursuant to a \u201cconsent-to-search\u201d form, he entered an apartment where Estremera was staying and discovered 51 $100 bills. Defendant was found hiding near his apartment.\nThe defendant testified that he had been selling drugs for a few months at the time of Dmitry\u2019s death and that he obtained the 10 pounds of marijuana through his connections. Moreover, he claimed that as a result of the negotiations for that marijuana, he was able to procure it and store it in his motor vehicle.\nThe defendant testified to the events early in the day where Estremera\u2019s suspicion that the decedent and Xavier were police officers broke off the negotiations. He further testified that he placed the marijuana and his .44-caliber pistol in his wife\u2019s motor vehicle preparatory to again meeting with the decedent and Xavier.\nDefendant testified that the parties exited their motor vehicles and, at that time, he had his .44-caliber handgun in his right hand for protection. Defendant stated that he believed that Xavier and Dmitry had additional weapons, and defendant acknowledged that, after a heated discussion and in the midst of loud conversation, he stood on one side of Dmitry\u2019s car while Estremera and Dmitry stood on the opposite side. He then testified that Dmitry reached for what defendant believed was a weapon and that Dmitiy intended to kill him.\nUpon observing Dmitry\u2019s movements, defendant then withdrew his weapon and shot over the car at Dmitry. He then left the scene in his motor vehicle, but he heard shots coming from the area. According to defendant\u2019s testimony, he did not plan to rob or hurt anyone on the day in question.\nOn cross-examination, defendant acknowledged that he knew exactly where to obtain marijuana and had done so on several occasions. Defendant further acknowledged that he received the .25-caliber handgun from Estremera and possessed both weapons, later arranging for their disposition. Defendant further acknowledged that he never actually observed a weapon in Xavier\u2019s or Dmitry\u2019s hand. In rebuttal, the State offered defendant\u2019s prior conviction for attempted murder in a previous case as impeachment evidence.\nBefore closing argument, the trial court instructed the jury as to the law for first degree murder and second degree murder. During closing argument, the assistant State\u2019s Attorney said:\n\u201cI\u2019ll talk to you about the second degree murder instruction. My partner told you about that. Ladies and gentlemen, don\u2019t buy into that instruction. That is a slap to Dmitry Rabin.\u201d\nUpon objection, the court advised the assistant State\u2019s Attorney to rephrase the statement.\nThe jury found the defendant guilty of murder in the first degree and sentenced him to 60 years.\nThe defendant first notes that the State introduced extensive testimony evidencing defendant\u2019s conspiracy to sell drugs as well as his coconspirator\u2019s robbery of Dmitry despite the fact that defendant was not charged with a narcotics offense and that the jury in his previous trial had found him not guilty of armed robbery. He suggests that even if it was appropriate to introduce that evidence, he was denied a fair trial when the trial court failed to instruct the jury in accordance with Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000). Specifically, he claims that the trial court should have instructed the jury that other-crimes evidence could only be considered for a limited purpose and was not evidence of guilt or of a propensity to commit crimes. Defendant argues that evidence of collateral crimes is inadmissable if relevant only to establish a defendant\u2019s propensity to commit crimes. People v. Banks, 161 Ill. 2d 119, 136-37 (1994).\nThe defendant argues that counsel\u2019s failure to offer the appropriate Illinois Pattern Jury Instruction amounted to ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In that regard, he claims that defense counsel\u2019s failure to specifically offer or request the court to instruct the jury pursuant to the appropriate instruction and his failure to raise the issue in a posttrial motion should not be an impediment to this court\u2019s consideration of the issue. In other words, defendant argues that we should ignore his waiver of the issue where it comes within the ambit of the plain error doctrine.\nWhere there is a substantial defect in jury instructions or where the interest of justice so requires, the plain error doctrine will be applied if the evidence of guilt is closely balanced and if the error denied the defendant a fair trial. People v. Shields, 143 Ill. 2d 435, 446 (1991).\nIn this case, evidence of guilt is certainly not closely balanced. Here, the defendant testified as to the prior dealings with the decedent and others relating to drug transactions and, thereafter, acknowledged that he fired a weapon at the unarmed decedent. We share defendant\u2019s concern that admission of other-crimes testimony might suggest to the jury defendant\u2019s propensity to commit crimes. It has been oft said that admission of other-crimes evidence \u201cover persuades\u201d the jury that defendant is a bad person who deserves to be punished. People v. Sutton, 316 Ill. App. 3d 874, 891 (2000).\nDefendant incorrectly suggests that we review this matter de novo because there are no substantive issues of facts but only questions of law. The decision as to whether to admit other-crimes evidence lies within the trial court\u2019s sound discretion, and the appellate court will not reverse the trial court\u2019s decision absent a clear abuse of that discretion. People v. Hansen, 313 Ill. App. 3d 491, 500 (2000); People v. Becerril, 307 Ill. App. 3d 518, 527 (1999).\nEvidence of defendant\u2019s commission of other crimes is admissible where relevant to prove any material question other than the defendant\u2019s propensity to commit a crime, including modus operandi, intent, identity, motive or absence of mistake. People v. Kliner, 185 Ill. 2d 81, 146 (1998); People v. Gilliam, 172 Ill. 2d 484, 514 (1996); People v. Childress, 321 Ill. App. 3d 13, 22 (2001); People v. Lear, 143 Ill. 2d 138, 147 (1991).\nThe other-crimes evidence entered in this case all related to the transaction between defendant, his coconspirator, Dmitry and Xavier. Defendant\u2019s firing of the weapon came at a time of bitter antagonism between the parties over the drug transaction. The cases are uniform that although other-crimes evidence is inadmissable to establish a defendant\u2019s propensity to commit crimes, it may be admissible for other reasons. Here, the testimony as to other crimes touches upon the facts leading up to the commission of the crime for which he was charged as well as evidence of his intent and motive.\nSome courts have observed that the trial court must weigh the probative value of such evidence against its prejudicial effect (People v. Illgen, 145 Ill. 2d 353, 365 (1991)). If defendant could prevail on that theory, a defendant might mention some other criminal activity. Thereafter, if the court failed to, sua sponte, go through the exercise of weighing the evidence or give a limiting instruction, a defendant might seek reversal on such grounds.\nThe State chooses to take an easy way out and suggests that such evidence is part of the res gestae and, as such, does not require a limiting instruction. Use of the term \u201cres gestae\u201d has often been rejected and a more precise statement with respect to the evidence to be admitted has been sought. Cleary and Graham\u2019s Handbook on Illinois Evidence provides us with such a clear statement:\n\u201cIt is trusted that res gestae will finally receive the burial the Illinois Supreme Court thought it was providing in People v. Polandi, 22 Ill. 2d 175 (1961)], Rockford Clutch Div. v. Industrial Commn.l, 37 Ill. 2d 62 (1967)], and People v. Tye[, 141 Ill. 2d 1 (1990)]. Accord People v. Dennis, 181 Ill. 2d 87, 229 Ill. Dec. 552, 692 N.E.2d 325 (1998) (Illinois has abandoned the concept of res gestae)-, Reliman v. Twin Orchard Country Club, 202 Ill. App. 3d 968, 148 Ill. Dec. 291, 560 N.E.2d 888 (1990) (res gestae is no longer a term recognized by the Illinois courts); People v. Rogers, 264 Ill. App. 3d 740, 201 Ill. Dec. 133, 636 N.E.2d 565 (1992) (E J. Greiman, specially concurring) (stating the \u2018hope that this concurring opinion can be the equivalent of a stake in the heart of res gestae and that the coffin lid may be securely fastened\u2019 Amen); Lubeznik v. HEALTHCHICAGO, INC, 268 Ill. App. 3d 953, 206 Ill. Dec. 9, 644 N.E.2d 777 (1994) (res gestae is no longer in use); People v. Hill, 278 Ill. App. 3d 871, 215 Ill. Dec. 492, 663 N.E.2d 503 (1996) (res gestae disavowed as it serves only to confuse the determination of the admissibility of out-of-court statements or evidence of other crimes).\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 803.2, at 790 (7th ed. 1999).\nWe agree with the State that where the trial court properly admitted evidence of other criminal acts that occurred at the same time and place and that were related to the criminal action for which the defendant was being tried, no limiting instruction is required. This is particularly the case where the acts complained of as evidence of other crimes arose from the very same transaction or set of circumstances as the primary criminal act; in this case, the murder of Dmitry. See People v. Kidd, 357 Ill. 133, 140-41 (1934); People v. Andrae, 305 Ill. 530, 535-36 (1922). As noted, the defendant took the stand and acknowledged with great detail his involvement in the sale of drugs to Xavier and Dmitry, apparently deciding that such information was important to his defense.\nDefendant next suggests that the testimony that Estremera went through decedent\u2019s pockets searching for money was inappropriate since the defendant already had been found not guilty of the armed robbery charge in his first trial. However, we find the searching of Dmitry\u2019s pockets after the shooting was implicitly a part of the facts surrounding the sale of marijuana; namely, one party bringing a significant amount of money to the bargaining table, the killing of Dmitry, thereafter the leaving the scene, destroying the evidence of weapons and hiding from the police. Accordingly, defendant\u2019s argument is not well taken.\nThe defendant next argues that he received ineffective assistance of counsel where his attorney failed to request a limiting instruction with respect to other crimes. We have previously suggested that no such instruction was necessary where the other-crimes evidence is an integral part of the context of the crime for which defendant has been tried. In this case defendant\u2019s counsel was clearly aware of the nature of the evidence of other crimes, having offered a motion in limine with respect to them, so trial counsel\u2019s decision not to request such an instruction may be considered a matter of trial strategy. In any event, to sustain a claim of ineffective assistance of counsel, defendant must allege and show that his counsel\u2019s performance fell below an objective standard of reasonableness and but for such performance there was a reasonable probability that the result in the trial would have differed. People v. Simms, 192 Ill. 2d 592, 634 (2000); Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.\nSince defendant has testified to the evidence of other crimes, it is hardly likely a limiting instruction would have affected the ultimate outcome of this matter. Consequently, because defendant cannot prove prejudice, we find that the defendant received effective assistance of counsel. See People v. Jones, 269 Ill. App. 3d 797, 807 (1994).\nAs to the question of whether defendant\u2019s not guilty verdict in the armed robbery charge at the first trial makes a difference, it must be remembered that it was the defendant who asked the question \u201c[w]ho has the money [?]\u201d and the defendant identified the person who had the money.\nFinally, defendant argues that the prosecution\u2019s closing argument urging the jury \u201cnot to buy\u201d into the second degree murder instruction as it would \u201cbe a slap to Dmitry Rabin\u201d is so egregious that it requires reversal. First, we note that the jury was appropriately instructed on second degree murder and was advised that it had a duty to follow all of the instructions and was not to \u201csingle out certain instructions and disregard others.\u201d Clearly, the prosecution is allowed to suggest that the jury may disbelieve defendant\u2019s theory of self-defense; however, in this case, reference was to ignoring the instruction where the comment was \u201cdon\u2019t buy into that instruction.\u201d Here, the closing argument did not attack the defendant\u2019s theory of the case but, rather, attacked the jury\u2019s obligation to consider the jury instruction that was tendered by the trial court.\nOn three occasions during the course of the trial, the trial court admonished the jury that opening and closing statements are not evidence and that closing arguments not based on the evidence should be disregarded. A defendant is not denied a fair trial where the jury is appropriately admonished as to the effect and impact of opening and closing statements and that they do not constitute evidence. People v. Witt, 227 Ill. App. 3d 936, 945-46 (1992).\nUpon defense counsel\u2019s objection to the statement, the trial court directed the prosecutor to \u201crephrase the argument.\u201d Such intervention by the trial court certainly suggests that the objection was sustained and that such a direction by the trial court cured any errors caused by the prosecutor\u2019s comment.\nIt has been suggested that, in life, we should be careful for what we wish because we might get it. After the objection and the court\u2019s direction, the prosecutor rephrased her argument and stated:\n\u201cThat second degree murder instruction, that was read to you, ladies and gentlemen. As my partner explained to you, you have to first look at the facts to see whether he committed first degree murder before you can even go and look at second degree murder. My partner went over all the evidence that showed you that he committed first degree murder.\nNow, they want you to sit back and look to see is there anything mitigating. That means bringing down the first degree to a second degree. And what they\u2019re presenting to you, this mitigation, this force that\u2019s going to bring it down from first degree to second degree is his testimony that you heard from the second degree is his testimony that you heard from the stand, I saw Dmitry reaching around and I thought he had a gun.\nLadies and gentlemen, the car was in between Dmitry and him. The shotgun was in the trunk. And he told you from that witness stand he never saw any guns on Xavier Burbano or Dmitry Rabin.\u201d\nFor the reasons stated, we affirm the conviction of defendant, and pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we correct the mittimus to reflect defendant\u2019s 2,814 days in custody from the arrest until sentence.\nAffirmed and mittimus corrected.\nTHEIS, EJ, and HARTMAN, J, concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Michael J. Pelletier and Jennifer Bonjean, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and James Tomaska, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL FIGUEROA, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 01\u20141892\nOpinion filed June 30, 2003.\nMichael J. Pelletier and Jennifer Bonjean, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and James Tomaska, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0665-01", "first_page_order": 683, "last_page_order": 692 }