Appeal from the Circuit Court of Cook County No. 93 CR 19963(02) Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
A 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's 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's closing statement that to consider the second degree murder instruction would be a "slap" to the victim; and (4) the mittimus must be corrected to reflect a credit for 2,814 days served while in custody.
The 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.
As to the other issues raised by defendant, we affirm for the reasons set forth below.
After 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).
In 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.
Xavier 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.
Xavier 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.
Xavier and Dmitry drove to the rendezvous, where they met Ojea and waited until defendant and Estremera arrived in defendant's 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 "5-0," 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.
Xavier 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.
After the parties exited their motor vehicles, Estremera pointed a "big revolver" 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's car, defendant stood a few feet away and Dmitry stood with his back to Estremera at the driver's side. The defendant then asked "[w]ho's got the money[?]" 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's testimony that he fired the weapon in the air.
Xavier further testified that after he began to run away, he heard five or six "firecracker shots or pops" that were distinctly different from the loud noise the defendant's gun had produced. Xavier then returned to Dmitry, lying on the ground, who died in his arms.
Xavier 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.
Another witness testified that she observed Estremera firing a gun near Dmitry's car three or four times. The witness further stated that she did not observe Xavier taking anything from the victim's person. Another witness observed that the shooter had crouched down and taken something from the victim's pocket or waistband. The witness could not identify what was taken ...