People v. Figueroa

• Court: Appellate Court of Illinois
• Decided: March 28, 2008
• Docket: 1-05-2805 Rel
• Status: Published

Opinion

FIFTH DIVISION March 28, 2008

No. 1-05-2805

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 20224 ) MIGUEL FIGUEROA, ) The Honorable ) Fred G. Suria, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

Following a jury trial, defendant Miguel Figueroa was convicted of two counts of first

degree murder (felony murder and knowing and intentional murder) and sentenced to 45 years in

prison. He appeals, contending that: (1) his conviction for felony murder and his conviction for

knowing and intentional murder were both erroneous; (2) the trial court erred in barring evidence

of the character of two people in support of his claim of self-defense; and (3) the State's rebuttal

closing argument was improper in several aspects, causing him substantial prejudice. Defendant

asks that we vacate and/or reverse his convictions and remand for a new trial. For the following

reasons, we affirm.

BACKGROUND

The following evidence was established during trial.

At approximately 6 p.m. on July 19, 2000, shortly after playing baseball with his younger

brother, 12-year-old Miguel De La Rosa was shot in the chest by a stray bullet from a .380 No. 1-05-2805

semiautomatic gun and was killed while on the street in the Humbolt Park area of Chicago.

Nick Labellarte testified that on that date, he, Lonnie Gambill and defendant, all members

of the Spanish Cobras street gang, were at defendant's grandmother's house for a barbeque. At

about 6 p.m., Labellarte and defendant, whose nickname is Mousey, left the barbeque and walked

down the street toward an area controlled by the rival Latin Kings street gang. As they

approached, they saw Charles Ellison, a member of the Latin Kings, standing on his porch with

his girlfriend. Labellarte testified that defendant and Ellison exchanged words and both threw

down the other's gang sign, a form of disrespect. Labellarte and defendant then began walking

back toward defendant's grandmother's house, where they met Gambill on the street. Another

member of their gang, Manuel Coronado, pulled up to the group soon after in his beige

Bonneville car. Labellarte, Gambill and defendant got into Coronado's car so they could go

smoke some marijuana.

Labellarte further testified that when they got in the car, they saw Ellison in his car, a

black Delta. Labellarte stated that as they began to drive away, Ellison saw them and started

chasing them in his car, and then a beige van joined the chase. The van was driven by Wilson

Torres, a member of Ellison's gang. Labellarte testified that as the chase continued through the

surrounding neighborhoods, he saw defendant, who was in the front passenger seat of Coronado's

car, stand up through the car's sunroof and shoot a gun at Ellison's car and the van behind them.

Labellarte stated that while he did not know at the time that defendant had a gun, he immediately

recognized it as the .380 semiautomatic that belonged to their gang. He further stated that

defendant fired the gun four times, that neither he (Labellarte) nor anyone else in Coronado's car

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encouraged defendant to do so, that he never heard any shots fired at them from Ellison's car or

Torres' van, and that he was scared during the chase.

Coronado testified that he was driving his Bonneville after work when he saw defendant,

Gambill and Labellarte on the street. They all decided to get into Coronado's car to go smoke

some marijuana together. Coronado, who entered the Marines shortly after this incident and was

a sergeant at time of trial, stated that as soon as they all got into his car and started driving away,

they were chased by a Delta and a van. He averred that he saw people in the Delta and the van

displaying Latin King gang signs, but that no one in his car responded. Coronado noted that

there was a police station nearby, but he did not drive to it. He further testified that suddenly,

without any encouragement from anyone in his car, defendant pulled out a gun, stood up through

the sunroof of the car, and began shooting at the Delta and the van. Coronado stated that he did

not know defendant was armed or that he was going to shoot at anyone; immediately after

defendant shot the gun, Coronado asked him "what the f-ck" he thought he was doing. Coronado

further stated that while he was scared during the chase, he was always certain he could

outmaneuver Ellison and Torres during the chase to get away.

Prior to the testimony of Charles Ellison, the parties discussed with the court defendant's

desire, in support of his affirmative defense of self-defense, to examine Ellison regarding two

prior crimes for which Ellison was charged: a murder case in which he was found not guilty and

another murder case which was dismissed before trial. Defendant argued that he was not

introducing this evidence to impeach Ellison but rather to "explain [his own] fear and explain

why he acted the way he did." The court disagreed, stating that if defendant took the stand, he

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could testify regarding his state of mind, and if that occurred, then he could recall Ellison.

Accordingly, Ellison testified that he was standing on a porch with his girlfriend when he

saw defendant and Labellarte approaching his parked Delta and throwing gang signs. Ellison and

defendant exchanged words, but Ellison pointed out there were children in the area including his

own and thus went inside the house. Ellison also let his pit bull loose in his yard, at which point

defendant and Labellarte left the area. Ellison stated that he then got in his Delta and his friend

Torres pulled up in his beige van, and they started driving. Soon after, a beige Bonneville pulled

up next to them with its occupants disrespecting the Latin Kings gang sign, and a chase ensued.

Ellison further stated that at one point, he believed someone in the Bonneville threw a bottle at

his car; he pulled over for a moment, and the van took the lead in chasing the Bonneville. He

then saw defendant pop up through the sunroof and heard gunshots. Ellison did not see

defendant fire a weapon, as the van was in front of his Delta blocking his view at times. Ellison

stated that there were no weapons in his car or in the van and he never mentioned having any

weapons to defendant at any time that day.

Following Ellison's testimony, defendant sought to make an offer of proof, again in

support of his theory of self-defense, to show that Ellison and Torres had reputations for violence

and, thus, were the initial aggressors in this incident. The court again stated that defendant could

"bring out all of the incidences of violence" he wished "if [defendant] takes the stand and tells

what was in his frame of mind." However, the court allowed defendant to make his offer of

proof outside the presence of the jury for the record. Christine Crandall, who worked for the

local Community Alternative Policing Strategy (CAPS) program, testified that on June 22, 2001,

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she was getting into a car when Torres and another man approached her. Crandall stated that

Torres told her she needed to "stop calling the police or else." Elizabeth Candelaria testified that

on June 12, 2001, she confronted Torres and another young man as they were trying to open a

fire hydrant. Candelaria stated that Torres told the other man to hit her with the tool they were

using, and that Torres later laughed at her and showed her a gun, telling her it was for her and

that he was going to kill her.

Several other witnesses testified at trial. Elizabeth Kirkland testified that she was outside

with a group of friends on the street when she saw a car carrying Coronado, Labellarte, Gambill

and defendant (all of whom she knew) coming down the street and throwing rival Latin King

gang signs. She saw defendant with a gun. Kirkland stated that Coronado's car stopped and

defendant exchanged words with Ellison; she did not see anyone in Ellison's car or the van throw

any gang signs or display any weapons. Ellison's car and the van chased Coronado's car, and

when they turned a corner, Kirkland heard gunshots.

Angel Lopez, the victim's younger brother and 11 years old at the time of the incident,

testified that he and Miguel were playing baseball outside when he saw a beige car speed down

the street with a Hispanic man standing up through the sunroof holding a pistol. The man started

shooting at a beige van and a black car that were following. Angel stated that he then saw his

brother fall to the ground with blood coming from his chest. Juan Lopez, the victim's older

brother and 14 years old at the time of the incident, testified that he was in a van with David

Brecheisen, his local youth-program counselor, at about 6 p.m. when he saw his brothers Miguel

and Angel playing on the street. Juan and David were stopped at a red light when Juan saw three

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vehicles--a beige car followed by a black car and a van--turn in front of them and speed away; he

also heard gunshots. When Juan arrived at David's house, he went inside and placed a 911 call to

report the reckless driving. He then went back outside and saw his brother Miguel lying on the

ground. Brecheisen corroborated much of Juan's testimony, stating that a beige car followed by a

van pulled out right in front of his vehicle at an intersection and sped away. Brecheisen

continued to his home, dropped Juan off and then drove down the street where a crowd of people

had begun to gather. He saw Miguel on the ground.

Finally, a videotaped statement given by defendant to police in the days following

Miguel's death was played for the jury. In the statement, defendant admitted he was a member of

the Spanish Cobras street gang and that on July 19, 2000, he was at a barbeque at his

grandmother's house with Labellarte and Gambill. Defendant stated that he and Labellarte

decided to walk down the street to a nearby corner which bordered on rival Latin King gang

territory. Defendant saw Ellison and had an argument with him, which defendant stated was

because Ellison thought defendant was looking at and getting too close to Ellison's black Delta

parked on the street. Defendant stated that at this point, Ellison told him he had "cannon toys,"

or guns. Defendant and Labellarte then went back to defendant's grandmother's house,

whereupon they saw Gambill on the street and Coronado driving up in his Bonneville.

Defendant stated he told Gambill to get "the strap," meaning the .380 semiautomatic gun shared

by the Spanish Cobras, because the Latin Kings were "coming." As defendant, Gambill, and

Labellarte got into Coronado's car, Gambill gave defendant the gun; defendant hid the gun in his

lap underneath his shirt. Defendant further stated that a chase ensued with Ellison's car following

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Coronado's car and Torres' beige van following Ellison's car, and later, Torres' van was following

Coronado's car with Ellison's car behind the van. Defendant also stated that everyone in

Coronado's car was telling him to shoot at Ellison and Torres, so he stood up through the sunroof

and shot four times. He never saw anyone in Ellison's car or Torres' van with a gun. Following

the shooting, defendant went home and hid the gun he had used. He averred that the next day,

when he had heard that Miguel had died, he met with Labellarte and Gambill and the three

created an alibi that they were still at the barbeque at the time of the shooting.

Following the State's rebuttal closing argument, which discussed several aspects of the

trial, the court instructed the jury regarding two types of first degree murder: felony murder based

on aggravated discharge of a firearm, and knowing and intentional murder which included an

instruction on second degree murder. The court also instructed the jury regarding self-defense.

The jury returned guilty verdicts for first degree murder on both types. Defendant was sentenced

to the minimum term of 45 years in prison.

ANALYSIS

As noted, defendant presents three contentions on appeal. We address each separately.

I. First Degree Murder Convictions

Defendant's first contention for review is that both of his convictions for first degree

murder were improper. Regarding his conviction for felony murder based on aggravated

discharge of a firearm (referred to at trial as "type B"), defendant, relying wholly on People v.

Morgan, 197 Ill. 2d 404 (2001), argues that the aggravated discharge was inherent in the act of

murder here and, thus, could not be a predicate offense for a felony murder charge. Regarding

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his conviction for knowing and intentional murder (referred to at trial as "type A"), defendant

argues that the jury instructions and the State's closing argument improperly precluded the jury

from ever considering self-defense or second degree murder. We disagree with both arguments.

First, as to felony murder, we note that a person commits this crime when he, without

lawful justification, causes another's death while attempting or committing a forcible felony other

than second degree murder. See 720 ILCS 5/9-1(a)(3) (West 2000). A forcible felony includes

aggravated discharge of a firearm. See 720 ILCS 5/2-8 (West 2000); People v. Toney, 337 Ill.

App. 3d 122, 130-31 (2003). Under the felony murder doctrine, a felon is responsible for the

direct and foreseeable consequences of his actions. See People v. Belk, 203 Ill. 2d 187, 192

(2003); see People v. Pugh, 261 Ill. App. 3d 75, 77 (1994) (this is true regardless of whether the

defendant intended to kill the victim or whether the death was accidental). The purpose behind

this doctrine is to limit the violence that accompanies the commission of forcible felonies, so that

anyone who commits such a violent felony will be automatically subject to a murder charge if

someone is killed during the commission of that felony. See Belk, 203 Ill. 2d at 192.

Defendant is correct that in Morgan, our state supreme court held that a conviction for

felony murder based on aggravated discharge of a firearm was legally inappropriate. In that case,

the defendant shot his grandfather during a confrontation and his grandmother as she was fleeing;

he was found guilty of, in part, felony murder. See Morgan, 197 Ill. 2d at 411-12. He argued on

appeal that this conviction could not stand because the charged predicate felony, aggravated

discharge, was not independent of the killings. See Morgan, 197 Ill. 2d at 444-45. The supreme

court agreed. In discussing the felony murder doctrine, the Morgan court was concerned that,

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since intent to kill need not be proven in the prosecution of a felony murder charge, the State

would be absolved from its duty to prove that a defendant has either an intent to kill or to do

great bodily harm. See Morgan, 197 Ill. 2d at 447; see also People v. Davis, 213 Ill. 2d 459, 471-

72 (2004) (discussing Morgan). Thus, the Morgan court sought to prevent situations where the

same evidence is used to prove the underlying felony and the actual killing, because it is in these

where it is difficult to conclude that the underlying felony involved a felonious purpose other

than the killing of the victim, in accordance with our statutory law. See Morgan, 197 Ill. 2d at

447; see also Davis, 213 Ill. 2d at 471. Consequently, the Morgan court issued the holding that a

defendant cannot be convicted of felony murder when the predicate felony "arose from and [was]

inherent in the murder[]." Morgan, 197 Ill. 2d at 447 (where "the acts constituting forcible

felonies arise from and are inherent in the act of murder itself, those acts cannot serve as

predicate felonies for a charge of felony murder").

Simply put, Morgan requires a review of the facts of each case to determine whether the

predicate felony "arose from" or was "inherent in" the murder of the victim: if so, a felony

murder charge is not legally proper, but if not, a felony murder charge is appropriate. See Toney,

337 Ill. App. 3d at 132 ("the factual context surrounding the murder is critical in determining

whether the forcible felony can serve as a predicate felony for felony murder"); see also People v.

Pelt, 207 Ill. 2d 434, 442-43 (2003) (the predicate felony underlying the charge of felony murder

must involve conduct with a felonious purpose other than the conduct which killed the victim).

We have no concern with the holding of Morgan. It was clear there that the predicate felony of

aggravated discharge of a firearm arose from and was inherent in the murders in that case.

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Specifically, the defendant's act of shooting a gun at his grandfather and then his grandmother

formed the basis of the aggravated battery conviction; yet, it was also the same act underlying the

murder conviction. There was no way to conclude in that particular case that the aggravated

discharge involved conduct with a felonious purpose other than the conduct which killed the

grandparents. Thus, the felony murder charge could not stand.

The same cannot be said in the instant case, and we plainly disagree with defendant that

Morgan is in any way applicable to the facts involved herein. Defendant's conduct of shooting

his gun through the sunroof at Ellison's car and Torres' van was not an act that was inherent in or

arose out of the killing of Miguel. That is, the aggravated discharge was not inherent in the

murder of Miguel but, rather, involved conduct with a felonious purpose other than killing

Miguel, namely, shooting at Ellison and Torres, both of whom were nowhere near Miguel at the

time. Unlike in Morgan, where it could be said that the aggravated discharge and the murders

were one and the same, the situation here is not muddled. Defendant's shooting at Ellison and

Torres is the conduct which formed the basis of the aggravated discharge of a firearm charge; his

separate shooting (and hitting) of Miguel is the conduct which formed the basis of the murder.

At their core, the facts here comprise a gang shooting resulting in the death of an innocent

bystander. As such, they mirror, as the State points out, People v. McGee, 345 Ill. App. 3d 693

(2003), and Toney, 337 Ill. App. 3d 122, cases which came before our very court. In McGee, the

defendant, a member of a local gang, became involved in an altercation with a rival gang; a rival

gang member opened fire and defendant returned fire, shooting three times from a car and two

more times after having exited the car. A baby was caught in the cross-fire and was killed.

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Following a conviction for felony murder based on aggravated discharge of a firearm, the

defendant argued on appeal, in part, that his conviction could not stand pursuant to Morgan. Our

court disagreed and upheld the conviction. While we found nothing inappropriate in Morgan's

holding, we noted that the facts presented were clearly distinguishable from that case because the

predicate felony of aggravated discharge did not arise from and was not inherent in the murder of

the baby but, rather, involved conduct with an independent felonious purpose other than killing

the baby (i.e., shooting at the rival gang member). See McGee, 345 Ill. App. 3d at 698-99

(holding that based on facts, aggravated discharge can serve as predicate felony for felony

murder). Similarly, in Toney, the gang-member defendant was involved in an altercation with

members of a rival gang and shots were fired; a bystander was shot and killed. The defendant

was convicted of felony murder based on aggravated discharge of a firearm and he too argued on

appeal that this was not proper pursuant to Morgan. Again, reviewing the particular

circumstances presented, we upheld the defendant's conviction finding that, because it was clear

that the acts constituting the aggravated discharge were not inherent in the act of murdering the

bystander but, rather, involved conduct with a felonious purpose other than killing the bystander

(i.e., discharging firearms at rival gang members), aggravated discharge was a proper predicate

felony for the felony murder conviction. See Toney, 337 Ill. App. 3d at 134, 137.

It is clear that the instant case is identical to McGee and Toney and merits the same result.

While we reiterate that we find no fault in Morgan, there is nothing in the discussion and

application of its holding that would preclude application of the felony murder rule in the instant

case. See Toney, 337 Ill. App. 3d at 135 (noting that Morgan does not preclude affirmance of

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felony murder conviction in that case); accord Davis, 213 Ill. 2d at 474-75 (affirmance of felony

murder conviction proper even in light of Morgan). Contrary to defendant's contention, the facts

of Morgan have no bearing here and, based on the instant circumstances presented, we find that

the charge of aggravated discharge of a firearm was a proper predicate felony for the felony

murder charge. See, e.g., McGee, 345 Ill. App. 3d 693; Toney, 337 Ill. App. 3d 122; see also

Davis, 213 Ill. 2d at 470-75 (where the defendant's conduct was not act that was inherent in or

arose from killing, predicate felony was proper for felony murder charge); People v. Boyd, 356

Ill. App. 3d 254, 261 (2005) (where the defendant did not intend to kill victim but only to scare

third party, aggravated discharge of firearm was not act inherent in murder; fact that the

defendant did not intend to kill this victim distinguishes case from Morgan where that defendant

intended to and killed grandparents and thus could not be charged with felony murder).

We now turn to defendant's contention that his conviction for knowing and intentional

murder was improper because the instructions given at trial prevented the jury from considering

self-defense or a mitigating charge of second degree murder.1 He insists that when the trial court

1 We note for the record that the State makes a threshold argument that defendant has

waived this issue for review since he failed to comply with Illinois Supreme Court Rule

341(h)(7), which requires briefs on appeal to contain citations to authorities used to support an

argument. See 210 Ill. 2d R. 341(h)(7). It is true that defendant fails to cite any authority for the

instant argument and, thus, we may consider it waived. See, e.g., People v. Urdiales, 225 Ill. 2d

354 (2007). However, in an effort to make a complete record, we choose to review his claim.

See People v. Kliner, 185 Ill. 2d 81, 127 (1998).

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told the jury that "a person is not justified in the use of force if he is attempting to commit or

committing aggravated discharge of a firearm," it did so in reference to the knowing and

intentional murder charge rather than the felony murder charge or, at the very least, confused the

situation for the jury. He argues that, since he necessarily admitted to the aggravated discharge in

order to raise the affirmative defense of self-defense, "the jury had no choice" but to find him

guilty of felony murder pursuant to these words.

The purpose of jury instructions is to provide the jury with correct legal principles that

apply to the evidence, thereby allowing it to reach the proper conclusion based on the applicable

law and the evidence as presented. See People v. Parker, 223 Ill. 2d 494, 500 (2006); accord

People v. Hudson, 222 Ill. 2d 392, 399 (2006). The issue of whether the applicable law was

accurately conveyed to the jury through the instructions given is reviewed de novo. See Parker,

223 Ill. 2d at 501; People v. Herron, 215 Ill. 2d 167, 174 (2005). As a reviewing court, we are to

determine whether the instructions given, when taken as a whole, fairly, fully and

comprehensively apprised the jury of the relevant legal principles presented by the State and the

defense. See Parker, 223 Ill. 2d at 501, citing People v. Terry, 99 Ill. 2d 508, 516 (1984); accord

Hudson, 222 Ill. 2d at 399. Significantly, we must construe the instructions as a whole rather

than read them in isolation. See Parker, 223 Ill. 2d at 501; People v. Ward, 187 Ill. 2d 249, 265

(1999).

Reviewing the jury instructions given by the trial court here as a whole, we disagree with

defendant and find that they fairly and fully stated the law involved in this case as it related to the

evidence. The record makes clear that the jury was instructed regarding all of the following:

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felony murder based on aggravated discharge of a firearm, knowing and intentional murder,

second degree murder and self-defense. The jury, then, was presented with instructions and

verdict forms for each possible charge, including the lesser offense of second degree murder and

the affirmative defense of self-defense. Regarding knowing and intentional murder in particular,

the trial court specifically explained to the jury that if it believed the State had met its burden for

this crime, it should then consider whether there was any mitigating factor proven so that

defendant would be guilty of second degree murder instead. The jury was also presented with

instructions describing potential mitigating factors. Thus, it is clear that the jury was fully and

properly apprised of knowing and intentional murder and its ability to find defendant guilty, not

guilty or guilty of second degree murder.

Moreover, we note that the jury was given a separate jury instruction on felony murder. It

was specifically in reference to this type of murder charge that the jury was told, as defendant

cites, that he could be found guilty of first degree murder if he was committing aggravated

discharge of a firearm at the time of the victim's death. As we view this instruction in the record,

its preface was: "A person commits the offense of first degree murder (Type B) ***," thus clearly

referencing the jury to the fact that this instruction regarding aggravated discharge applied to

felony murder only. The trial court never mentioned this, nor was the jury ever so instructed,

when knowing and intentional murder was presented and discussed. Ultimately, the jury

received separate verdict forms on each charge: three for knowing and intentional murder (guilty,

not guilty or guilty of second degree murder), and two for felony murder (guilty or not guilty).

Even if the trial court had made some sort of error in an oral sense when it discussed aggravated

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discharge, it was harmless, particularly because the record shows that correct written instructions

were submitted to the jury. See People v. Williams, 181 Ill. 2d 297, 321-22 (1998) (receipt of

corrected instruction helps to cure error in oral instruction, even when jurors have indicated they

reached their verdict prior to receiving the corrected version); accord People v. Kitchen, 159 Ill.

2d 1, 39-40 (1994).

Defendant's argument that comments made by the State during closing argument further

confused the jury so as to preclude it from considering second degree murder or self-defense is

also unsupported by the record. Defendant cites the following comment by the State:

"If you find that he discharged that firearm, that he – and caused the death

of that little boy while doing so, he is guilty of murder, and their entire self-

defense garbage that you heard about in this courtroom doesn't apply to that

charge – you do not even look at self-defense or second-degree."

However, defendant isolates one sentence from the State's lengthy closing argument made in its

rebuttal to defendant's own closing argument, which focused on the sufficiency of the evidence

and advocated for, if any sort of conviction, something less than first degree murder. Viewed in

light of the entire exchange between both parties, as we are required to do (see People v.

Cisewski, 118 Ill. 2d 163, 176 (1987)), we find no error. First and foremost, defendant

erroneously cites the above comment, conveniently leaving out a significant phrase. According

to the record, the State actually said:

"If you find that he discharged that firearm, that he – and caused the death

of that little boy while doing so, he is guilty of murder, and their entire self-

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defense garbage that you heard about in this courtroom doesn't apply to that

charge. You may not consider that defense as to that charge. The Type B murder

– you do not even look at self-defense or second-degree." (Emphasis added.)

Clearly, and in direct contrast to defendant's assertion, it is unmistakable that the State's

comments were made when discussing the felony murder charge, not the knowing and intentional

murder charge. Before this cited comment, the State discussed with the jury that there was a "big

legal significance to the two different types" of murder charges here; it then made the cited

comment right after telling the jury that "Type B felony murder -- you are going to get this big

pile of instructions" regarding it. Moreover, the State continued immediately after this comment

by further describing felony murder and then distinguishing it from knowing and intentional

murder, at which point it explained to the jury that if it believed the State failed to prove felony

murder, it must review the knowing and intentional charge and consider both second degree

murder and self-defense. There is no semblance here of any sort of indication that the cited

comment by the State somehow "confused" the two types of murder charges for the jury, blended

the charges together, or led it to ignore the alternatives of second degree murder and self-defense.

With the comment, the State was simply demonstrating that the defendant's claims of second

degree murder and self-defense were not supported by the evidence.

Based on all this, it is clear to us that, when the instructions given to the jury here are

viewed as a whole, they fully, fairly and properly apprised the jury of the correct legal principles

that applied to the evidence and the circumstances presented allowed it to reach a proper

conclusion.

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II. Character Evidence

Defendant's next contention on appeal is that the trial court erred in barring evidence he

sought to present regarding the violent characters of Ellison and Torres to show why he

responded to the car chase by firing a weapon. Relying principally on People v. Lynch, 104 Ill.

2d 194 (1984), he argues that because evidence of Ellison's and Torres' characters bore directly

on the issue of whether he "had reason to fear the attack or to resort to self-defense," the trial

court violated his rights to due process and a fair trial.

The determination of the admissibility of evidence lies within the province of the trial

court, and it may reject evidence, even relevant evidence, if it is remote, uncertain or speculative.

See Morgan, 197 Ill. 2d at 456. A trial court's ruling regarding relevance and admissibility of

evidence will not be reversed absent a clear abuse of discretion and manifest prejudice. See, e.g.,

People v. Sutherland, 223 Ill. 2d 187 (2006).

Defendant is correct that Lynch provides the seminal law regarding the admissibility of

character evidence in cases where self-defense has been raised. In Lynch, the defendant's

physically and mentally handicapped son wrecked Ernest Bell's car. Bell demanded money for

the repairs, but estimates were more than the defendant could pay. Bell became angry and said

he would get his money. Later, the defendant arrived at his son's apartment to see Bell and his

friend Lester Howard inside talking to the defendant's son; these men were bigger than the

defendant and were drunk. The subsequent evidence "was conflicting." Lynch, 104 Ill. 2d at

198. The defendant testified that Howard lunged forward, reaching behind his back and

underneath his coat with his right hand; thinking Howard was going to shoot him, the defendant

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pulled out a gun and shot Howard in the head, killing him. Bell, however, testified that Howard's

hands were in front of him at this time. At trial, the defendant raised self-defense. In an effort to

show that Howard, the victim, had a propensity for violence and that this supported his version of

the facts, the defendant sought to introduce evidence that Howard had three prior battery

convictions. The trial court prohibited this evidence.

The Lynch court reversed the trial court's decision and remanded the cause for the

introduction of the victim's convictions. The Lynch court held that when self-defense "is

properly raised, evidence of the victim's aggressive and violent character may be offered for two

reasons: (1) to show that the defendant's knowledge of the victim's violent tendencies affected

[his] perceptions of and reactions to the victim's behavior; and (2) to support the defendant's

version of the facts where there are conflicting accounts of what happened." People v. Nunn, 357

Ill. App. 3d 625, 631 (2005) (reviewing and summarizing holding of Lynch). Accordingly, under

the first approach, the evidence is relevant only if the defendant knew of the victim's violent acts.

See Nunn, 357 Ill. App. 3d at 631; see also Lynch, 104 Ill. 2d at 200 (in this first prong, only the

facts the defendant knows can be considered and "evidence of the victim's character is irrelevant

to [the] theory of self-defense unless the defendant knew of the victim's violent nature"). Under

the second approach, the defendant's knowledge is irrelevant, but there must be conflicting

accounts of what occurred in order for the evidence to be admissible. See Nunn, 357 Ill. App. 3d

at 631 (whether the defendant knew of the evidence at the time of the event does not matter);

accord Lynch, 104 Ill. 2d at 200-01.

Having outlined the main legal principles involved, we now turn to defendant's arguments

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concerning the character evidence he sought to introduce about Ellison and Torres in support of

his assertion of self-defense, which the trial court ultimately barred.2

We begin by noting that in any Lynch situation, we must first decide whether the

defendant was entitled to introduce Lynch evidence at all, that is, whether he properly raised a

theory of self-defense in his cause thereby meriting consideration of the Lynch principles. See

Nunn, 357 Ill. App. 3d at 631 (reviewing cause to first determine if self-defense was supported

by evidence presented); accord People v. Armstrong, 273 Ill. App. 3d 531, 533-34 (1995) (Lynch

applies only where the theory of self-defense is properly raised). In the instant case, we find very

little evidence, if any, supporting defendant's theory of self-defense. Following his encounter

with Ellison on the street, defendant and Labellarte walked back to defendant's grandmother's

house. Accordingly to his own confession, defendant, at this point, told Gambill to get him the

Spanish Cobra nation gun to use on Ellison. Gambill did, and defendant took the gun and hid it

under his shirt when he entered Coronado's car. Clearly, defendant chose to perpetuate the

situation when he could have easily removed himself from any confrontation, particularly since

Ellison was still down the street at this time and defendant had returned to his grandmother's

house. Moreover, there was no evidence that Ellison or Torres had a weapon. To the contrary,

all the witnesses who testified at trial on this subject, including Labellarte, Coronado, Ellison and

2 We note for the record that defendant makes strong arguments in his brief regarding the

Lynch issue. While the State has technically countered them in its brief on appeal and while our

decision is ultimately in its favor, the State provided only a dangerously cursory rebuttal at

certain points. Thus, we feel that our discussion regarding Lynch, though lengthy, is required.

19 No. 1-05-2805

Kirkland, stated that no one in Ellison's car or Torres' van had or displayed any sort of weapon

during the chase. It was only defendant who stood up through the sunroof of a moving vehicle

and shot a gun. Furthermore, Labellarte and Coronado testified that neither knew defendant was

armed and no one in the car encouraged defendant to shoot at anyone, with Coronado stating that

he was certain he could outmaneuver Ellison and Torres during the chase and that after defendant

fired the gun, he asked him, in more pointed terms, what he thought he was doing. Testimony

was also provided that the chase brought the cars right near a police station, but defendant did not

ask to stop to seek assistance. From all this, it is clear that defendant became the aggressor when

he fired the shots and that, accordingly, any Lynch material was properly barred since self-

defense was not properly raised. See Nunn, 357 Ill. App. 3d at 631 (where the defendant

"became the aggressor when he shot at the car," instead of avoiding confrontation where no one

else had weapon, he was not entitled to introduce Lynch evidence since there was no evidence to

support his theory of self-defense); accord Armstrong, 273 Ill. App. 3d at 533-34 (where, by own

testimony, the defendant perpetuated hostilities by displaying weapon, making threats, continuing

argument and pulling gun on unarmed victim, she became aggressor and Lynch principles did not

apply, since self-defense was not properly raised).

There is another reason we hold that Lynch does not apply at all in the instant case, one

that is technical but nevertheless well grounded. Very simply, Lynch deals with aggressive or

violent character evidence of the defendant's victim, to show that the defendant was justified in

harming the victim because the victim was the primary aggressor. This was the very essence of

Lynch--that court allowed the defendant to submit evidence of Howard's three prior battery

20 No. 1-05-2805

convictions to show that Howard was a violent man and that defendant was justified in shooting

Howard; the defendant was not seeking to introduce evidence regarding Bell or anyone else at the

scene. However, in the instant case, defendant attempts to do just that. He is seeking to

introduce character evidence of Ellison and Torres, people who were at the scene but not his

victims. Defendant was not charged with felony murder or knowing and intentional murder of

Ellison and Torres but, rather, of Miguel. Lynch cannot apply here because "its predicate is

missing": Ellison and Torres were not defendant's victims, Miguel was. People v. Bridges, 188

Ill. App. 3d 155, 159 (1989) (trial court's decision to bar character evidence of man who only

stood next to car as the defendant and another fought was proper because Lynch did not apply as

man was not the defendant's victim but only a bystander and, thus, his character was "irrelevant";

reviewing court affirmed that "[w]e are not prepared to extend Lynch to cover a bystander. After

all, to do so would have the effect of making a man with a violent past fair game for killing").

As defendant provides no case law to counter this principle, we find no reason to extend Lynch in

this case to cover Ellison or Torres.

Even were we to bypass these concerns and analyze the merits of defendant's claims

regarding Ellison and Torres as they relate to Lynch, we find no error with the trial court's

decision to bar the evidence defendant proposed.

A. Evidence of Ellison's Character

Regarding Ellison, we first note that, as a threshold matter, the State insists that defendant

has forfeited this issue for our review since he did not properly preserve it. We agree. In his

posttrial motion, while defendant asserts trial court error for its refusal to admit character

21 No. 1-05-2805

evidence regarding Torres, he fails to mention the court's similar decision regarding Ellison.

Having done so, defendant has technically waived the issue of character evidence regarding

Ellison. See, e.g., People v. Enoch, 122 Ill. 2d 176 (1988) (failure to both object at trial and raise

issue in posttrial motion waives it for appellate review).

However, even choosing to review this issue (see Kliner, 185 Ill. 2d at 127), we still

disagree with defendant's assertion that the trial court erred in refusing to admit evidence that

Ellison had twice faced murder charges before the incident in the present case occurred: a murder

charge in 1990 of which he was acquitted, and a murder charge which was dismissed in 1996 or

1998 prior to trial when it was discovered that a witness had been bribed to state that Ellison had

been involved in a shooting.

As noted earlier, Lynch material is admissible in two situations: to show that the

defendant's knowledge of the victim's violent tendencies affected his perception and reaction to

the victim's behavior, and to support the defendant's version of events where there are conflicting

accounts of what happened. See Lynch, 104 Ill. 2d at 199-200. Under the first approach, Lynch

material is relevant and admissible only if the defendant knew of the victim's violent acts that he

seeks to introduce. See Lynch, 104 Ill. 2d at 200; Nunn, 357 Ill. App. 3d at 631. This is because

the same deadly force that would be unreasonable in an altercation with a peaceful citizen may be

reasonable in a similar situation involving a citizen with a violent or aggressive character. See

Lynch, 104 Ill. 2d at 200. Thus, "[o]ne can only consider facts one knows"; if the defendant did

not know about the victim's violent nature at the time in question, the character evidence is

irrelevant to his theory of self-defense. Lynch, 104 Ill. 2d at 200. Moreover, in any self-defense

22 No. 1-05-2805

case, the defendant's state of mind is a material issue; only he can provide direct evidence of his

reasons for committing the crime. See People v. Phillips, 371 Ill. App. 3d 948, 952 (2007).

In the instant case, defendant did not provide any evidence as to his state of mind at the

time of the incident. He did not testify at trial and there was nothing in his confession to indicate

whether he knew of Ellison's prior murder charges. Defendant did elicit at trial from both

Labellarte and Coronado that they were scared during the car chase. However, what Labellarte

and Coronado felt or thought does not matter; their actions are not at issue and neither could

testify as to what defendant knew at the time. Only defendant's actions were at issue and only

defendant could testify as to his state of mind. See, e.g., Phillips, 371 Ill. App. 3d at 952.

Therefore, defendant does not meet the first approach of Lynch. See, e.g., Morgan, 197 Ill. 2d at

457 (where the defendant provided no testimony that he was aware of mother's childhood

experiences with his grandparents, any testimony regarding these could not have affected his

perceptions and reactions and, thus, was inadmissible under Lynch).

Under the second Lynch approach, a defendant has the right to present evidence of the

victim's character for violence, regardless of his knowledge of this at the time, if there are

conflicting accounts of what happened. See Lynch, 104 Ill. 2d at 200; Nunn, 357 Ill. App. 3d at

631. For example, in Lynch, the defendant testified that the victim lunged at him with his right

hand reaching behind his back, while an eyewitness testified that the victim's hands were in front

of him. See Lynch, 104 Ill. 2d at 198, 199 ("[m]uch of the evidence was conflicting" "about the

details of the events just before the shooting"); see also People v. McGee, 213 Ill. App. 3d 458,

469 (1991) (evidence in Lynch about events leading to shooting "was disputed").

23 No. 1-05-2805

In the instant case, there is no conflict here regarding the events that took place just

before the shooting. While it is true that there may be some minor discrepancies regarding the

moments early on when defendant and Ellison first exchanged words on the street, all the

pertinent witnesses at trial testified that defendant left and went back home toward his

grandmother's house. No one disputes that the start of the car chase did not occur until gang

signs were exchanged. There is also no dispute, as per defendant's own confession, that he stood

up in Coronado's car during the chase and began to shoot through the sunroof, although no one in

Ellison's car or Torres' van had shot at him or displayed any sort of weapon. Whether Ellison

believed someone from Coronado's car threw a bottle at his car during the chase or whether

Ellison had initially told defendant in their first exchange that he had "cannon toys" (guns) is

irrelevant to whether defendant's response of opening fire on the street to Ellison's chase was

reasonable. Even if it were, again, what Ellison believed occurred has nothing to do with

defendant's assertion of self-defense, and defendant's statement about the "cannon toys" was

inconsistent with Labellarte's and Ellison's testimonies about that exchange. Unlike the situation

in Lynch, there was no conflict here. Therefore, defendant also does not meet the second

approach. See McGee, 213 Ill. App. 3d at 469-70; see, e.g., Morgan, 197 Ill. 2d at 457-58

(mother's childhood experiences not admissible under second Lynch approach where "there were

no conflicting accounts of what had happened" as per the defendant's testimony and statements).

Finally, even if the trial court erred in barring defendant from introducing evidence of

Ellison's prior murder charges, this error was harmless. See People v. Collins, 366 Ill. App. 3d

885, 893-94 (2006) (applying harmless error analysis to Lynch issue and finding no such error in

24 No. 1-05-2805

barring evidence). Ellison's murder charges were just that--charges. He was never convicted; in

fact, he was acquitted of the 1990 charge, and the 1996 or 1998 charge was nol prossed when it

was discovered that the main witness was bribed to say Ellison was involved. While defendant is

correct in stating that "a prior altercation or arrest, without a conviction, can be adequate proof of

violent character," "Lynch and its progeny unquestionably hold that proof is needed that the

victim committed the crimes." People v. Cook, 352 Ill. App. 3d 108, 128 (2004) (noting this

dichotomy and holding that Lynch evidence was not admissible since further proof, other than

charges of battery, was required to demonstrate victim's alleged violent character). Here, there

was no evidence to support the assertion that Ellison actually performed any of the murders

charged. See People v. Ellis, 187 Ill. App. 3d 295, 301 (1989) ("evidence of a victim's mere

arrest is inadmissible since it does not indicate whether the victim actually performed any of the

acts charged"); see, e.g., People v. Costillo, 240 Ill. App. 3d 72, 82 (1992) (Lynch material

properly excluded where it comprised only charges, not conviction).

Moreover, other factors involved indicate a lack of reliable foundation for this evidence.

See Nunn, 357 Ill. App. 3d at 632 (analyzing purpose of Lynch material, as well as foundation,

whether it was cumulative of other evidence presented, etc.); accord People v. Ware, 180 Ill.

App. 3d 921, 929 (1988) (where Lynch evidence was too general, indefinite and could not be

viewed as reliable and prima facie probative of aggressive violent tendencies, it was properly

barred); see also, e.g., Lynch, 104 Ill. 2d at 203-04 (examining context of convictions when

determining admissibility). In addition to never having been convicted of the murders, we note

that they occurred long before the incidents at issue; for example, Ellison's trial resulting in

25 No. 1-05-2805

acquittal occurred in 1990, some 10 years before Miguel's shooting. A remoteness factor is

clearly relevant here. See Morgan, 197 Ill. 2d at 455-57 (rejecting Lynch evidence because it was

remote to incident at issue); see also Ellis, 187 Ill. App. 3d at 301 (trial court has discretion to

exclude admission of evidence of conviction which is 10 or more years old). Also, the

circumstances surrounding Ellison's nol prossed charge illustrate the factors of speculation and

unreliability; that charge was specifically dismissed before trial even began because a witness

lied about Ellison's involvement. And, ultimately, the evidence here regarding defendant's guilt

was overwhelming. While defendant seems to reduce this case to a issue of credibility between

him and Ellison, he ignores that it was Miguel who was killed. Defendant's confession to police

only days after the incident mentioned nothing about his fear of Ellison or of Ellison's alleged

character or reputation for violence. Therefore, we find that the trial court did not abuse its

discretion in barring the proposed evidence of Ellison's character.

B. Evidence of Torres' Character

Regarding Torres, the character evidence defendant sought to introduce, and which was

barred by the trial court, was presented in an offer of proof via the testimony of two women,

Crandall and Candelaria. During the offer of proof, CAPS worker Crandall testified that she had

an encounter with Torres on June 22, 2001, where he approached her and told her to stop calling

the police "or else"; Candelaria testified that she had an encounter with Torres on June 12, 2001,

where, after she confronted him about opening a fire hydrant, Torres laughed, displayed a gun

and told her he was going to kill her.

First and foremost, it is clear that Lynch's first approach is not applicable in this situation.

26 No. 1-05-2805

Both of these incidents postdate the incident that occurred in the instant case. That is, Miguel

was shot and killed on July 19, 2000, while the encounters testified to by both Crandall and

Candelaria did not take place until almost a year later. Since the first Lynch approach focuses on

what a defendant knew about the victim and the defendant's perceptions of and reactions to the

victim's behavior in the context of his knowledge, it cannot be a basis for the admissibility of the

evidence regarding Torres cited here. See Nunn, 357 Ill. App. 3d at 631 (under first Lynch

approach, evidence of victim's violent tendencies is relevant only if the defendant knew of

victim's violent acts); see, e.g., Lynch, 104 Ill. 2d at 200.

The issue remains, then, whether this evidence regarding Torres should have been

admitted by the trial court under the second Lynch approach. We find that the trial court properly

barred it.

Defendant is correct that evidence of incidents of violence that postdate the crime for

which a defendant is being tried may be admissible under the second Lynch approach to

determine who was the aggressor. See People v. Ciavirelli, 262 Ill. App. 3d 966, 972 (1994).

However, all the relevant principles of this approach, which we have already discussed, must still

be met.

In the instant case, Torres' role as "aggressor" is tenuous at best. This is not meant to

justify or diminish Torres' actions on the afternoon of Miguel's murder. However, it does

demonstrate both the somewhat faulty nexus defendant tries to establish between Torres and

himself and the resulting inapplicability of Lynch, even under its second approach. The

confrontation in this case from which an initial aggressor is to be named was between defendant

27 No. 1-05-2805

and Ellison and occurred on the street before the car chase began. At this point, Torres was

nowhere to be found. Torres was not present or involved during this altercation, which resulted

in defendant going back to his grandmother's house and obtaining a gun to use because, as he

stated in his confession, he believed Ellison was "coming" after him due to their prior exchange.

Torres arrived only later. The scene for the chase and, in turn, for defendant's action of using the

gun had already been set by the exchange between defendant and Ellison; in fact, all the

witnesses to the chase testified that the chase began with Ellison directly behind defendant and

Torres joining only later. This leaves only defendant and Ellison as the answers to the question

of who was the initial aggressor in this cause. Thus, any evidence of violent acts involving

Torres as testified to by Crandall and Candelaria would be extraneous and irrelevant, even under

Lynch's second approach. See Ciavirelli, 262 Ill. App. 3d at 972-73 (where there is no evidence

that any man involved in alleged violent incidents was the aggressor in shooting at issue,

evidence of those incidents was not admissible under second Lynch approach); see also People v.

Pogue, 312 Ill. App. 3d 719, 729 (1999) (where there could only be one possible aggressor in

group (other than the defendant claiming self-defense), evidence of violent propensities of others

in group is irrelevant and inadmissible under Lynch).

Even were this not so, any error committed by the trial court in barring the evidence

gleaned in the offer of proof regarding Torres was harmless. Again, as with Ellison, Torres was

not convicted in either instance testified to by Crandall or Candelaria. See, e.g., Costillo, 240 Ill.

App. 3d at 82; Ellis, 187 Ill. App. 3d at 301. And, most significantly, the evidence against

defendant in this cause was overwhelming. In addition to the testimony at trial, defendant

28 No. 1-05-2805

himself confessed to police that he chose to walk down the street into rival gang territory, that he

then returned home and obtained a gun, and that he stood up through the sunroof of Coronado's

car and fired four times out into the street, even though he was never fired upon and did not see

any weapons displayed by Torres or anyone in his van. Particularly, defendant never discussed in

his confession any fear he experienced due to Torres during any point of this incident. Therefore,

we find that the trial court did not abuse its discretion in barring the proposed evidence of Torres'

character.

Based on all this, we find that, ultimately, the trial court's decision to bar the proposed

Lynch material regarding Ellison and Torres was proper in the instant case.

III. State's Rebuttal Closing Argument

Defendant's final contention on appeal is that his conviction should be reversed and his

cause remanded for a new trial because the State's rebuttal closing argument was prejudicial in

multiple respects. He cites four portions of the State's argument, asserting that the State

improperly commented on his failure to testify, bolstered the credibility of Coronado, inflamed

the passions of the jury, and personally disparaged him based on facts not in evidence. We

disagree.

It is well established that the State is allowed a great deal of latitude in closing argument.

See People v. Nieves, 193 Ill. 2d 513, 532 (2000); accord People v. Wiley, 165 Ill. 2d 259, 294

(1995). The test for determining whether there was reversible error because a remark resulted in

substantial prejudice to the defendant is whether the remark was a material factor in his

conviction, or whether the jury would have reached a different verdict had the State not made the

29 No. 1-05-2805

remark. See People v. Flax, 255 Ill. App. 3d 103, 109 (1993); accord Nieves, 193 Ill. 2d at 533.

We review the allegedly improper remark in light of all the evidence presented against the

defendant (see Flax, 255 Ill. App. 3d at 109), as well as within the full context of the entire

closing argument (see Cisewski, 118 Ill. 2d at 176). We note here that the State is entitled to

respond to a defendant's closing argument which attacks its case and witnesses, and the defendant

cannot claim prejudice when these comments are invited by his own argument. See People v.

Reed, 243 Ill. App. 3d 598, 606-07 (1993); accord Nieves, 193 Ill. 2d at 534 (the defendant

cannot rely upon invited response by State during rebuttal closing argument as error on appeal).

The trial court is in the best position to determine whether comments made during closing

argument resulted in prejudice and, thus, its determination that such comments are proper will

not be reversed absent an abuse of discretion. See People v. Emerson, 189 Ill. 2d 436, 488

(2000); see also People v. Robinson, 254 Ill. App. 3d 906, 915 (1993); Reed, 243 Ill. App. 3d at

605 ("scope" of closing "is left largely up to the trial court"). Ultimately, unless deliberate

misconduct by the State during closing argument can be demonstrated, comments will be

considered incidental and uncalculated and will not form the basis of reversal. See People v.

Cloutier, 156 Ill. 2d 483, 507 (1993).

In his first citation of error, defendant claims that the State improperly commented on his

failure to testify, in violation of his constitutional right not to do so, when it commented to the

jury that:

"There is not one shred of evidence that you heard in this courtroom about

self-defense, about his state of mind, what's in his state of mind, not everybody

30 No. 1-05-2805

else's state of mind. Self-defense is his state of mind";

and later:

"And you did not hear any evidence that this defendant in his mind was in

fear when he shot his gun."

Contrary to defendant's assertion, it is clear to us that the State's comments here were not directed

at defendant's failure to testify but, rather, on his failure to support his theory of self-defense.

This was the essence of defendant's case, namely, that he shot Miguel while trying to defend

himself against Ellison and Torres. An evaluation of such a theory requires the jury to decide

whether defendant was justified in his actions, including what he believed and/or perceived at the

time of the incident. See McGee, 213 Ill. App. 3d at 464 (describing elements of self-defense,

including that the defendant reasonably believed force used was necessary). In fact, defendant

spent a great portion of his closing argument imploring the jurors to consider the circumstances

he was presented with at the time of the incident, to remember this context, and to evaluate what

they would do if they were in fear for their lives. By its comments, the State simply responded to

this by pointing out for the jury that, while evidence was presented regarding the feelings and

states of mind of other witnesses such as Labellarte and Coronado, there was no reliable evidence

regarding defendant's state of mind, which was key to his defense. Defendant insists that there

was such evidence in his videotaped confession; however, after viewing that confession, we note

that nowhere in it does defendant talk about his state of mind at the time of the shooting.

Moreover, contrary to defendant's argument, the State never commented that defendant did not

testify. Rather, it was defense counsel who stated this during closing argument when, as part of

31 No. 1-05-2805

an objection to the State's argument, defense counsel told the jury: "The defendant also has a

right not to testify." Ultimately, the State's comments were directed only at the theory of

defendant's case and to clarify for the jury that his state of mind, not anyone else's, was the prime

issue in this cause. In this, there is no error.

The next portion of the State's rebuttal closing argument that defendant cites as erroneous

centered on comments the State made regarding Coronado, who drove the car from which

defendant shot and later left the Spanish Cobras after this incident and joined the military. The

State told the jury:

"And make no mistake about it, Manny Coronado, no matter what he did

in his life before that day *** and no matter what he will do in his life -- and

apparently he is doing a lot with his life -- when he decided to come forward and

changed his mind because it was the right thing to do, that may have been his

finest hour. That was an act of courage, and it may seem like a tiny act of courage

next to the other acts of courage he has exhibited in enlisting and working his way

up to being a sergeant in the Marines --

***

-- but that act of courage -- those acts of courage on a daily basis add up to

a community that can protect its citizens and that's what we are here for, ladies

and gentlemen."

Defendant asserts that these comments improperly bolstered Coronado's credibility and created

an unfair advantage for the State. However, after reviewing defendant's own closing argument,

32 No. 1-05-2805

which preceded the State's rebuttal, we note that it was defendant who highlighted Coronado's

credibility and did so in a negative way. In his closing, defendant's theme was that he alone was

not responsible for Miguel's death. Turning to the testimony of Labellarte and Coronado,

defendant asserted that these two State witnesses were motivated by their own self-interests and

did not want to be tied to the murder. Defendant attacked Coronado in particular regarding his

testimony that he was not afraid during the car chase. Defendant repeatedly told the jury that

Coronado "pretend[ed]" on the stand when he testified he was not scared, thus calling his

truthfulness into question. The cited comments by the State here were clearly in response to

defendant's tactics. Moreover, the comments immediately preceding these included the State

discussing how difficult it was for Coronado (and Labellarte), who was much younger than

defendant, to testify in front of him, considering the fact that they had been in the same gang.

Thus, we find nothing improper in the State's attempt here at repairing the credibility of one of its

prime witnesses after it was attacked first by defendant.

Third, defendant insists that the State improperly intended to inflame the passions of the

jury with the following statement:

"In that one brief moment where [defendant] chose to make his world

collide with this victim's, he shattered that victim's world and the world of all of

the other people out there with this victim and all of the people in the

neighborhood. And actually, all of the law-abiding citizens in the State of Illinois

and in the country of the United States.

And in that one moment, the world of baseball and brothers turned into a

33 No. 1-05-2805

world of funerals and mourning and crying because of this defendant's deliberate,

conscious actions."

When examining the evidence presented at trial, we find these comments proper because they

were grounded directly in that evidence. Miguel was killed shortly after playing baseball on a

summer evening with his little brother; his older brother saw events leading up to his death and

both he and Miguel's younger brother, along with a neighborhood crowd, saw Miguel lying dead

on the sidewalk. These are facts that were never disputed. As the State points out, its comments

regarding the citizens of Illinois and the United States merely urged the jury to consider the "evil

results of" the crime and its "fearless administration of [justice]," which was proper in light of the

totality of the evidence presented here. People v. Harris, 129 Ill. 2d 123, 159 (1989).

Defendant's fourth and final citation of error in the State's rebuttal closing argument is

that the following comments were not based in the evidence presented and were personally

disparaging:

"I want to leave you with one thing *** look at the one person in the

lineup photo who cannot look the cameraman in the eye. Who is that person? It

is the defendant. He can't look the cameraman in the eye because he knows he did

something wrong.

And what shows in this photo – think about his nickname, Mousey –

because what it shows in this photo, this man still can't accept responsibility.

Mousey connotes coward, and gangs are cowards."

34 No. 1-05-2805

As a threshold matter, we note that defendant has waived any argument regarding these

comments because he did not refer to them in his posttrial motion. See Cloutier, 156 Ill. 2d at

507 (requiring objection and posttrial motion raising issue to preserve it for review); see also

Flax, 255 Ill. App. 3d at 108 (the allegedly prejudicial and inflammatory remarks must be raised

with factual detail in order to preserve issue).

Defendant urges us to review his waived claim here under a plain error analysis.

However, we may invoke this only in two limited instances: where the evidence presented is

closely balanced, or where the alleged error is "of such magnitude that there is a substantial risk

that the accused was denied a fair and impartial trial." People v. Wembley, 342 Ill. App. 3d 129,

138 (2003), relying on People v. Vargas, 174 Ill. 2d 355, 363 (1996); see People v. Keene, 169

Ill. 2d 1, 18 (1995). In particular, in order to apply this doctrine to comments made at trial, these

comments must have been " 'so inflammatory that the defendant could not have received a fair

trial or so flagrant as to threaten [the] deterioration of the judicial process.' " People v. Phillips,

127 Ill. 2d 499, 524 (1989), quoting People v. Albanese, 104 Ill. 2d 504, 518 (1984). We find

that neither circumstance is present in the instant case. First, we have already discussed at length

the overwhelming evidence presented against defendant at trial. Second, we do not conclude that

the cited comments created a substantial risk of an unfair trial. As we will discuss with more

specificity below, the circumstances present in the record indicate that the comments, if error at

all, were only harmless; they were based on the evidence and were directly in response to

defendant's statements during his own closing argument, and ultimately, the trial court clearly

instructed the jury that unsupported statements must be ignored and that closing arguments do

35 No. 1-05-2805

not constitute evidence. See People v. Macri, 185 Ill. 2d 1, 52 (1998) (trial court instruction

cures error in State's closing argument).

Even were we to review defendant's contentions about these particular remarks the State

made in its rebuttal closing argument about the lineup photograph and his nickname, we do not

find that reversal of his conviction and remand are warranted. Defendant's assertion that "[n]ot a

scintilla of evidence was adduced at trial" regarding this information is wholly inaccurate. To the

contrary, these were facts in evidence. First, the photograph discussed here was introduced into

evidence and given to the jury to examine; it was from this photograph that witness Kirkland

identified defendant as the shooter. Upon our own examination of the photograph, it is obvious

that defendant is the only member of the lineup who is not looking at the cameraman; this cannot

be disputed. Also, defendant urged the jury during his closing argument to examine his

demeanor in his videotaped confession, and discussed that he was upset and crying, indicating

remorse, lack of intent and that this was not "an act." That the State countered by urging the jury

to examine defendant's demeanor in this photograph and by interpreting what it signified in its

view was, therefore, proper. Second, defendant's gang nickname was elicited early on at trial.

That is, the testimony made clear that defendant was known to everyone in the neighborhood as

"Mousey." In fact, some witnesses referred to him as such throughout their testimonies. Much

was made at trial about gang involvement and hierarchy; defendant's nickname was obviously

relevant. Moreover, as noted earlier, in his closing argument, defendant insisted that he alone

was not responsible for Miguel's death and that he simply "exercised poor judgment." These

were points the State was discussing when it made these comments.

36 No. 1-05-2805

We note for the record that defendant makes one final cursory argument in his brief on

appeal, namely, that even if we were to decide that each contested comment alone is not

sufficient to merit a new trial, their cumulative impact surely mandates this. While we recognize

that there must be a point where the combination of harmless error becomes so harmful that

reversal of the conviction is warranted, we find, however, that based on the record here, which

we have thoroughly analyzed, the instant case does not present such a situation. See Robinson,

254 Ill. App. 3d at 921; see also, e.g., People v. Moore, 358 Ill. App. 3d 683 (2005) (objection

logged by the defendant and instruction issued to jury by trial court cured any prejudice arising

from State's comment in closing argument).

Therefore, we conclude that the State presented a proper rebuttal closing argument and

we find no reversible error present in any of the comments cited by defendant on appeal.

CONCLUSION

Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

GALLAGHER and O'MARA FROSSARD, JJ., concur.

37 No. 1-05-2805 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case) _________________________________________________________________________________________________________________________ Please use the following form The People of the State of Illinois,

Plaintiff-Appellee,

v.

Miguel Figueroa,

Defendant-Appellant.

_____________________________________________________________________________________________ No. 1-05-2805 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed March 28, 2008 (Give month, day and year) __________________________________________________________________________________________ PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT: JUSTICES GALLAGHER and O'MARA FROSSARD, JJ., concur.

Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. FRED G. SURIA, Judge presiding. __________________________________________________________________________________________________________________________ Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r FOR APPELLANTS NONE if not represented. John Doe, of Chicago

For APPELLEES, : APPELLANT: OFFICE OF THE STATE APPELLATE DEFENDER, Chicago, IL Michael J. Pelletier, Deputy Defender; Maria A. Harrigan, Assistant Appellate Defender _________________________________ __ Smith and Smith of Chicago, APPELLEE: OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL Richard A. Devine, State's Attorney; James E. Fitzgerald, Ashley Romito, Michelle Katz, Ljubica D. Popovic, Assistant State's Attorneys __________________________________________________________________________________________________ (Joseph Brown, of counsel) Add attorneys for third- party appellants and/or appellees.

38 No. 1-05-2805