First Division February 26, 2007 No. 1-05-1354 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff -Appellee,

v. VICENTE LOPEZ, Defendan t-Appellan

t. ) ) ) ) ) ) ) ) ) ) Appeal fro m the Circuit C ourt of Cook C ounty 02 CR 06193

Honorable John J. Sco tillo Judge Presiding PRESIDIN G JUSTICE

McBRIDE d

elivered the

opinion of

the court: Following

a jury trial, d

efendant, Vicente Lop ez, was fou nd guilty of

first degre e murder and sentenc ed to 75 year s’ impriso nment. O n appeal, de fendant contends that: (1) he receiv ed ineffecti ve assistanc e of counse l; (2) the tria l court abuse d its discreti on when it f ailed to inst

ruct the jury on second degree murder based on provocation resulting from mutual combat; (3) the court erred when it allowed the State to introduce prejudi cial other crimes evidence; and (4) the court erred w

hen it faile d to properly

admonish

the jury concerning oth er crimes e vidence. Defendan t was arreste d and charge d by indictm ent with six

counts of f

irst degree m

urder in connection with the shooting deat h of his wif

e, Blanca L opez, which occurred d uring the ear

ly morning hours of February 10, 20 02. Prior to trial, the St

ate filed a m

otion to adm

it evidence that defend

ant had poin

ted a gun at B lanca on thre e occasions prior to the m

urder, and e

vidence that gunshots had previously been fired in defendant’s house. Over defense counsel’s obj ection, the court ruled that the other crimes evidence was admissible, stating t hat its probative value outweighed

its prejudic e to defend

ant, and tha

t, given def

endant’s the ory that the shooting wa s an accident, th e evidence w as relevant t o show mo tive, intent , and absenc e of mista ke.1-05-1354

2

The follow

ing evidenc e was presen

ted at defen

dant’s trial. Dr. J. Scott Denton, a forensic pathologist and deputy medical examiner at the Cook County m edical exam

iner’s off ice, testifi ed that on Fe

bruary 11, 2 002, he perf

ormed an a

utopsy on Blanca L opez. Blanca was 5 fee t 51⁄2 inches ta

ll and weigh ed 117 poun

ds. In Dr. D enton’s opinion, B lanca died o f a “contact range” gunshot wound t

o the head th at entered im mediately in front of h er left ear an

d exited beh

ind and abov e her right ea r. Dr. Dent

on testifie d that “conta

ct range” means that the muzzle of the weapon was against the skin when it was fired. The direction of

Blanca’s wo

und was front to back, l eft to right , and upwar ds. Dr. Den

ton conclud

ed that the manner of Blanca’s death was a homicide. Dr. Denton

observed se

veral areas o f red abrasi on or scrapin g on the back

of Blanca’ s right hand which had been recently created. Dr. Denton could not determine what caused t he abrasions, but testified that they could have been caused by a fight. Dr. Denton exa mined the area under Blanca’s fingernails, which was clean and did not contain any ski n or dirt. Toxicology

blood sam

ples reveale d that Blanc a had a “fair ly high” blo od-alcohol

level, betw een .23 and .29 grams per hundred milliliters. Josephine K

nust, an em

ergency com

munications operator f

or the City o f Elgin, te stified that she fie lded a 911 ca

ll at 7 a.m. on February

10, 2002. T

he 911 tape w as entered in to evidence an

d published

to the jury. O

n that tape, t

he caller ask

ed for a Spa

nish interpr

eter, provided his address as 817 Parkway, Elgin, Illinois, and stated “I ’ve got a problem.” Once the 911 operator obtained a S panish inter preter, the c aller stated t

hat he neede d an ambul ance because he s hot his wif

e in the head . The caller id entified hi

mself as d

efendant a

nd his wife

as1-05-1354

3

Blanca Lop ez. Elgin police officer Mike Gartner testified that at approximately 7 a.m. on February 10, 2002, he was dispatched to 817 Parkway in Elgin, Illinois. Soon after arriving at that location, defendant came out o f the house

and was take

n into custo dy by police . Officer Gartner test

ified that defendant was not stumbling or acting belligerent and that he did not appe ar to be intoxicated. Officer Gartner entered the house and found Blanca in a downstairs bedroom lying on her right s ide on a bed. Her head wa s resting on a pillow, and

her right arm

was undern eath the pillow, “more or less cradling [it].” Officer Gartner observed an extensive wound to the ri ght side of Bla

nca’s head a

nd noticed a

stainless ste el revolver l

ying on the f

loor. Detective S teven Bianchi of the El gin police dep artment te stified tha t he met wi

th defendant at the Elgin police department jail at approximately 8 a.m. on the day of the shooting. Detective Bianchi took samples from red stains that were on defendant’s face and was present when Detec tive Gough

performe d a gunshot r

esidue kit on

defendant ’s hands to d

etermine i f they had been in close contact with a fired weapon. Detectives Bianchi and Gough then went to defendant’s house and did a “walk-through” of the crim

e scene. Ov er defense c ounsel’s ob jection, the

court allow ed Detectiv e Biachi to testify abo

ut several ho les he foun

d in the hous e which he b elieved wer e bullet hole s. In an upstairs bed

room, Detective Bian

chi observe d a hole in th e door that ap peared to line up with another hole in the ceiling of that bedroom. The detective also observed a hole in a wall of the downstairs

east bedroo m, where B lanca was f ound, and “ other holes”

in the down stairs north

west bedroom. Detective B ianchi testif ied that he be lieved these holes were created by a projectile1-05-1354

4

fired from

a gun and tha

t he and Dete ctive Gough cut a hole in t

he wall of t

he downsta

irs northwest bedroom and recovered a projectile fired from a gun. Detective Bianchi did not send that project

ile for a bal listics analy sis. Detective Bianchi also took photographs of Blanca as he found her lying in bed. He testified in

substantial ly the same

manner as

did Offic er Gartner re garding Bla nca’s positi on in bed and added that she was partially covered by a blanket. Detecti ve Bianchi photographed the firearm next to the bed, which he identified as a .357 Magnum containing five live rounds and one fired round. The detective found other “miscellaneous rounds” in defendant’s home. On that same date, Detective Bianchi went to an auto repair shop where defendant worked and found a box of .3 57 Magnum

shells. On cross-examination, Detective Bianchi testified that there were re d marks on defendant ’s face whi ch tested po sitive for b lood and tha t a photogra

ph he took sh

owed that th ere were “numerous” beer c ans in the kit chen of def

endant’s ho

use. Michael Putzek, a forensic scientist for the Illinois St ate Police, testified that he conducted a trigger pull analysis on the .357 found at the scene to det ermine the amount of pounds requ

ired to disch arge the wea

pon. He det

ermined that when the hammer w as cocked, i t took approximately f

our pounds

to pull the tr

igger, and t

hat when the

hammer was not cock

ed, it took approximately 10

pounds. Jorge Lopez

(Jorge), Bl anca’s son a

nd defenda

nt’s stepson , testified

over defen se counsel’s o

bjection to t

hree prior incidents whe

n defendan

t pointed a g

un at Blanca . In December of 1999, Jorge observed defendant point a gun at Blanca during an argument over the1-05-1354

5

music she was playing . Jorge testi fied that “[ b]asically the same ev ent” occurre d approxim ately one week lat

er. Finally, Jorge testif

ied to an inci dent that occ urred in Nov ember of

2001, when defendant and Blanca were living at 817 Parkway in Elgin. Jorge entered the dining r oom of the house and observed defendant “cock” a gun, point it at Blanca, and tell her t o “shut up.” Jorge stepped between Blanca and defendant and, while Jorge had defendant’s hand over his left shoulder, t

he gun went

off. More

arguing ens

ued, and the

gun went of

f again whi le Jorge was trying to bri

ng it down a

way from his head. Th

is was the on

ly time Jor

ge saw defe

ndant fire a weapon in the house. Jorge also testified that defendant and Blanca would usually begi n drinking on Friday afternoon and sometimes continue until Monday or Tuesday, and that defendant took medication for anxiety and depression. On the second day of trial, a juror informed the sheriff that he had read an article about the case in a newspaper. The juror was brought into court and, when asked by the cour t and defense counsel whether the article would affect his ability to be impartial about the case, the juror respon

ded that it w ould not and

that he still had an open m ind. The jur

or also indic ated that he mentioned the article to the other jurors, but that he did not discuss its contents with them. The court admonished the juror not to discuss the article and allowed hi m to remain on the jury. The parties s tipulated th at Cynthia D onath, a forensic scien tist, tested t

he swabs tak

en from def endant’s fa

ce and determ

ined they contained blo od. The par ties furthe

r stipulated

that Leslie Rosier, a DNA analyst, tested one of the swabs and found it to contain DNA from defendant and one other person, who may or may not have been Blanca. Mary Wong , a forensic

scientist, te stified tha

t she analyze d the gunsho t residue kit taken1-05-1354

6

from defendant’s hands and determined that he either had fired a gun or was in the vicinity of a dischar ged firea rm. Detective D aniel O’She a testified t hat he interv

iewed defe

ndant at the E lgin city jail at 9:15 a.m. on the date o f the incide nt. Sergean

t Jose Morale s was also pr esent for th e interview and acted as a Spani sh inter preter. Defendant initial ly told De tective O’Shea th at he came h ome from wor k on the even

ing of Satu

rday, Febru

ary 9, 2002 . He and Bla

nca drank be er, and then she told him

that she “had

another m an.” They d

rank more

beer, then d

efendant w ent to his aut

o repair shop a

nd retrieved

a gun. He returned hom e, “at som e point” bec ame angry about what Blanca said, and, according to defendant, “then she was shot.” Detective O ’Shea told d

efendant that his statem

ent was too v ague, and d

efendant f urther explained that the gun ha d been in his

jacket pock

et and that B lanca was ac cidentally shot when he was takin

g the jacket o ff. Whe

n Detective

O’Shea aga

in asked def

endant to be

more spec ific, defendant explained that he became upset after Blanca told him about the other man, but that he and Blanca were not screaming at each other or physically fighting. Defendant stated t hat he went to his auto repair shop because that is where he often went when he was sad or depr essed. Defendant smoked cigarettes and listened to music while at the shop, and then placed a .357 revolver in his jacket pocket and went home. Upon arriving there, defendant and Blanca drank more beer, danced, and

listened to m

usic. Blanc a went to a downstairs be droom and lay down in a bed, and defendant went downstairs to talk to her. Defendant told Detective O’Shea that he was taking h

is jacket of

f when the g

un fired and Blanca wa s shot. Detective O ’Shea and S ergeant Mora les interviewed defenda

nt again at ap

proximate ly1-05-1354

7

noon that day, during which time defendant gave a similar statement regarding the shooting. He added, however, that when he went downstairs to speak to Blanca, he was sitting behind her on the bed and she was on he r right side f

acing away f

rom him . Defenda

nt stated tha

t he was upse

t, but that he an

d Blanca we

re not arguin

g. When B lanca indica

ted that she d

id not want t

o talk to him, def endant reve

rted to an “in stinct” he le arned as a Federale , or policeman, in Mexico. Defendan t explained t

hat, as a Federale , when you f eel threaten ed or that som eone is goin

g to hurt you, “you pull out a

gun and sho ot them be fore they ca n harm you .” Defend

ant also add

ed that he pulled the gun from his jacket pocket, extended his arm toward Blanca, and pulled the trigger. Defendant stated that he did not think he aimed the gun at her head and tha t the weapon was approx imately 5 t

o 10 inches f

rom Blanc a’s head whe

n he pulled t

he trigger. On cross-examination, Detective O’Shea testified that defendant told him that he had four to five beers before he left for his repair shop, and four to five more when he returned home. When Detective O’Shea asked defendant about the bullet hole in the bedroom, defendant responded t

hat he had pr

eviously shot a gun in th e house but t hat he did no t shoot it at B lanca. On Friday, Septembe

r 26, 2003, the court inf

ormed the parties that a

juror had

commun icated to the

sheriff th at she could

not serve on

the jury past

the follow

ing Monday because her son had fractured his wrist. The State indicated that it would rest early that Monday, and defense counsel told the court that the only witness the defense might call was defendant

. The court in formed the jurors that there was a “ strong poss ibility” that they would

have the cas e on Monday. Sergeant Jose Morales testified that he spoke to defendant at t he scene of the shooting.1-05-1354

8

Defendant was able to respond to the officer’s questions and did not slur his speec h. Sergeant Morales also testified to the statements that defendant made during his inter view with Detective O’Shea. Sergeant Morales added that defendant said he remained in the kitchen smoking cigarettes for approximately one-half hour after Blanca went downstairs, that he t ook medication for anxiety , depressio n, and diabe tes, and tha

t he was ma

d and angry a

t Blanca wh en he returne d from his shop. Elgin Off icer Ramo n Lazcano te stified tha t he acted as a

Spanish int

erpreter whe

n Assistant State’s Attorney (ASA) Shari Chandra met with defendant at approximately 7 p.m. on the day of the incident. During that interview, defendant stated that Bla nca kept bringing up the fact that sh e had found

someone e lse, that thi s made him “angry and f

rustrated,”

and that whe

n he went downstairs and asked Blanca “why,” she responded “just because.” After Blanca made that statement, defendant pulled the gun out of his pocket, pointed it directl y at Blanca’s head, and pulled the trigger. Defendant threw the gun on the floor, checked Blanca’s vit al signs, and called 911. Officer L azcano fur ther testifi ed that he act

ed as a transl ator when de fendant ga ve a videotaped statement at approximately 9:30 that evening. Defendant’s videotaped statement was published to the jury. In that statement, defendant related that he came home from work at approximately 5:30 p.m. on Saturday, February 9, 2002. He and Blan

ca ate, drank

beer, then d

anced and li stened to m

usic. Whi le defenda

nt and Blanc a were dancin

g, she told h

im that she

“had some one else.” D efendant b ecame ups et and left f or his auto repair shop at approximately midnight. He remained at the shop for about one-half hour listening to

music and

smoking c igarettes. D efendant then loaded a g un, placed i

t in his jacket1-05-1354

9

pocket, and

went hom e. He entere d the downs tairs bedroo m where B lanca was ly ing on a bed and confronted her abo

ut the other m

an. Blanca t

old defend

ant that the o ther man “w as younger” and “had more to offer.” Defendant went back to the kitchen, smoked more cigarettes and drank more beer, then returned to the downstairs bedroom where Blanca was lying on the bed. Defendan t asked Blan

ca about the

other man , and Blanc a replied tha t “he was you

nger and cou

ld offer more than [def

endant] di d.” Defendant asked B lanca “why, ” and she res ponded “be cause.” When Bla

nca then turned away from him, d efendant p

ulled the gu

n out of his

pocket, put

it to Blanca’s he ad, and pull ed the trigge r. Defenda

nt stated tha

t he did not in

tend to kill B lanca. The State rested following the publication of defendant’s videotaped state ment, and the defense rested without calling any witnesses. At the jury instr uction conference that followed, defendant asked the co

urt to instru

ct the jury on

second degr

ee murder a

nd involunt

ary manslaughter. The court denied defendant’s request for a second degree murder instruction, stating that the shooting was “anything but sudden and intense acc ording to the evidence,” but allowed the instruction for involuntary manslaughter. The court also submitted an ins truction informing the jury that they were to consider the other crimes evidence only on the is sues of defendant ’s intent, m

otive, or ab sence of m

istake. See

Illinois Pat

tern Jury Ins tructions, Criminal, No. 3.14 (4 th ed. 2000) (hereinafter IPI Criminal 4th No. 3.14). Neither defendant nor the State objected to the instruction. The jury reti

red at 5:03 p .m. and re

turned with

a verdict som

etime that evening. T

he jury found defendant guilty of first degree murder and that the State had proven that, during the commis sion of tha

t offense, defendant

personally d

ischarged a f

irearm tha

t proximat

ely caused1-05-1354

10

Blanca’s de ath. See 730

ILCS 5/5-8 -1(a)(1)(d)( iii) (West 2 002). The tr ial court sub sequently sentenced defendant to 75 years’ imprisonment, 50 years for first degree murder and 25 years for personally discharging a firearm. This appeal followed. Defendant first claims that counsel acted unreasonably by failing to move to replace the juror who in formed the court that s he could not serve on the

jury past a sp ecific date . The record shows that on the third da y of trial, F riday, Sept

ember 26, 2003, a juror informe d the court that she “did not

think” she c ould serve o n the jury pa st the follo wing Monda y because he

r son had fractured h

is wrist. Th e State told t

he court that

it would res t its case on M onday, and defense counsel ind

icated that the only witne ss the defen se might ca ll was defe

ndant. The

court then determined that it was “fairly certain” the case would be given to the j ury by Monday and that the juror di d not pose a problem. Defendant asserts that counsel’s failure to move to replace the juror or question her about the nature of

her obligati ons denied h

im a fair tr

ial because i

t allowed th e juror to ent

er deliberatio ns under the

external pre ssure to reach a guilty ve rdict. Unde

r these circu

mstances, defendant argues, the

re can be no c onfidence

in the jury’s

decision and the case should theref ore be remand

ed for a new

trial. Claims of ineffecti ve assistanc e of counse l are reviewe d under the t wo-pronge d test announced in Strickland v. Washington , 466 U.S. 6 68, 687, 80 L. Ed. 2d 6 74, 693, 10 4 S. Ct. 2052, 2064 (1984). People v. B loomingb urg , 346 Ill. App. 3d 308, 316-17 (2004). To prevail on a claim of ineffecti ve assistanc e of counse l, defenda nt must sh ow that (1) c ounsel’s representation fell below an objective standard of reasonablene ss, and that (2) counsel’s deficient1-05-1354

11

performance so prejudiced defendant as to deny him a fair trial. Strickland , 466 U.S. at 687, 80 L. Ed. 2d at 674, 104 S. Ct. at 2064. The failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. People v. P almer , 162 Ill. 2d 465, 475 (1994). With regar

d to the firs t prong, def

endant mu st overcome the strong p resumption that, under the circumstances, the challenged action or inaction of counsel was sound t rial strategy. People v. Jones , 322 Ill. App. 3d 675, 678-79 (2001). Moreover, because effective assistance of counsel refers to competent, not perfect, representation ( Palmer , 162 Ill. 2d at 476), matters relating to tr

ial strategy a

re generally

immune from clai ms of ine ffective a ssistance of counsel ( People v. W

est , 187 Ill. 2d

418, 432 (1 999)). In determining the adequacy of counse l’s representat

ion, a review

ing court wi ll not consid

er isolated in stances of m isconduct, but rather the totality of the circumstances. People v. Long , 208 Ill. App. 3d 627, 640 (1990). To establish prejudice, defendant must show there is a reasonable probabili ty that, but for counsel’s errors, the result of the trial would have been di fferent. People v. Johnson , 206 Ill. 2d 348, 362 (2002). If we can resolve defendant’s claim on the issue of prejudice, we need not consider whether counsel’s performance was deficient. People v. S mith , 326 Ill. App. 3d 831, 841 (2001). We find t hat defend

ant has not s hown that h e was prejud iced by coun sel’s alleged errors because the

re is no evide

nce in the rec ord to sugge st that the ju ror was unde

r any pressu

re to reach a verdi ct. We dis agree with d efendant that it is “poss ible to infe r” that extern

al pressure contributed to the verdict based on the fact that the jur y did not retire until 5 p.m. on Monday and1-05-1354

12

reached a gu

ilty verdict t

hat same ev ening. The

re is nothing

in the record

to support th

is inference, and it just as likely that the evidence of defendant’s gui lt allowed the jury to reach a guilty verdict the same evening it began deliberations. Under these circumstances, we conclude that counsel’s failure to move to replace the juror did not deny defendant a fair trial or result in a verdict unw orthy of co nfidence. We also find that defendant suffered no prejudice from counsel’s alleged error in light of the overwhe lming evid

ence of def

endant’s gu

ilt. The evid

ence establi shed that Bl anca’s death was caused by a single gu nshot woun

d to the head

and that the m

uzzle of the

handgun wa s against her skin at the time it was fired. Blanca was found by the police lying on her side on a bed, partially under the covers and cradling a pillow. Defendant made a 911 call shor tly after the murder stating that he had just shot his wife in the head. According to defendant’s own

statement s to the polic e, he went d ownstairs to

talk to Blanca, who was

lying on a be d, and when she turned away from him, he pulled out a gun and shot her in the head. A .357 Magnum containing six rounds, one of which was spent, was found at the scene, and defendant’s right hand tested

positive for gunshot re sidue, indi cating that h e had fired a gun or was in

the vicinity of a discharged firearm. Considering the overwhelming evidence of defendant’s guilt, we find that the resu

lt of his tria

l would not have been dif ferent had t

he juror been

removed or questioned further by t

he trial cour

t. Defendant relies upon People v. F riedman , 144 Ill. App. 3d 895, 903-04 (1986), and People v. B ranch , 123 Ill. Ap p. 3d 245, 2 51-52 (1984 ), where the trial court’s

commen ts were found to ha

ve imperm

issibly hast

ened the jury ’s verdict. H owever, the se cases are f actually1-05-1354

13

distinguishable from

the instant c ase. In each case, the tri al court ma

de comments to the ju

ry after it had

begun delib erations reg arding sequestration or the possibil ity of a dead

lock ( Friedman , 144 Ill. Ap

p. 3d at 903 ; Branch , 123 Ill. App. 3d at 250), and in Branch the court als o singled out the one juror who would not vote guilty and stated, in open court , that the juror should not have served on the jury ( Branch , 123 Ill. App. 3d at 250). Further, in each case the jury returned a verdict within ten minutes of hearing the trial c ourt’s comments. Friedman , 144 Ill. App. 3d

at 903; Branch , 123 Ill. App. 3d at 252. Here, in contrast, the trial court made no

commen ts that could

have hasten ed the jury’s

verdict and, as previous ly noted, th ere is nothin g in the record to

suggest tha

t the juror f

elt any press

ure to reach a

verdict. Defendan t next claim s that couns el was inef fective fo r failing to

strike two p otential jurors who expressed an inability to be fair if the evidence showed that defendant drank alcohol and ingested prescription drugs prior to the shooting. Defendant’ s argument is based on the following colloquy which took place during voir dire :

“MR. G UMP [Def

ense Couns el]: Wou

ld you be a

ble to be fai r and impartial i

n spite of [ evidence

that defendant drank exces sively and ingested pre scr ipt ion medic ation prior t o the inciden

t in question]? MS. VAKARELLI [Potential Juror]: I’m not sur e, I don’t know. MR. GUMP: Is th ere any reason w hy that would affect you or how it would affect you?1-05-1354

14 MS. VA KARELLI : Because I kn ow what the

affects [ sic ] that drug and alcohol have on a pers on so I don’t know how t

hat would make a dif

ference in t

his. MR. GUMP: If there was that e vidence brought in t

his case, could you still rem

ain fair and impar

tial is the iss

ue? Could you s till judge him fairl

y and impa

rtially even

if there is some evidence of that? MS. VAKARELLI: Most likely. MR. GUMP: And how ab out you Mr. S typinswi? MR. STYPINSWI [P oten tial Juror]: I don’t know . I have a buddy that is a reco vered alcoh olic so I don’t know. I guess I could be. I don’t know, it’s a hard question.

*** MR. GUMP: I jus twant to know whether or not you’re going

to be able to pu

t aside your p

redispositi o n towards fo lks who are drinking or

have drug pr

oblems in order to evaluatethe evidenc e in a fair and im

partial ma

nner in this c ase? MR. STYPINSWI: I can try to be.” Defense counsel did not challenge either juror, and both ultimately serve d on defendant’s jury. Defendant asserts that the jurors’ response s signal ed a predi spositi on to find a gainst hi m, and that cou

nsel was the

refore unre asonable f

or failing t

o challenge

the potentia

l jurors for

cause1-05-1354

15

or to use a pe

remptory c

hallenge to s trike them

from the j ury. Defen

dant main tains that counsel’s failure to do so denied him a fair trial and resulted in a ver dict unworthy of confidence. We disagr

ee. Defense counsel’s conduct during voir dire , including the decision

whether to e

xercise a peremptory challenge, involves matters of trial strategy that general ly are immune from claims of ineffective assistance of counsel. People v. Metcalfe , 202 Ill. 2d 544, 562 (2 002); People v. Bowman , 325 Ill. Ap

p. 3d 411, 4 28 (2001). I

n this case, d

efense cou

nsel activel

y participat

ed in voir dire , challenge d two poten tial jurors f

or cause, an

d exercised f

our perem

ptory challe

nges to dismiss jurors who were members of the same panel as Vakarelli and Stypinswi. Additionally, after review

ing the juror s’ responses , we believe it is just as li

kely that def

ense counse l concluded that any bias the jurors expressed might be directed agai nst the State and not defendant . Defenda

nt has presen

ted no evide

nce to rebut t

he presum

ption that co

unsel’s decisions w ere the resul

t of trial str

ategy, and, on the record

before us, we find tha

t counsel’s decision to accept Vakarelli and Stypinswi was a matter of trial stra tegy. Metcalfe , 202 Ill. 2d at 562. Additionally, defendant has failed to show that he was prejudiced by counsel’s dec ision not to challe

nge jurors Vaka

relli and Sty

pinswi. Th e evidence a

gainst defe

ndant was overwhelming, and we cannot say that the result of defendant’s trial would have been different had Vakarelli and Stypinswi not served on the jury. Metcalfe , 202 Ill. 2d at 562-63. We disagree with defendant’s conclusion that the instant case is similar to People v. Johnson , 215 Ill. App. 3d 713 (1991), and People v. Stone , 61 Ill. App . 3d 654 (19 78). Both1-05-1354

16

cases involved a claim that the trial court abused its dis cretion by denying counsel’s challenge of potential jurors for cause, and neither case involved an ine ffective assistance of counsel claim or the accompanying presumption that counsel’s conduct during voir dire is a matter o f trial strategy. Johnson , 215 Ill. Ap p. 3d at 723 ; Stone , 61 Ill. App. 3d at 663. In Johnson , three juror s equivocated when asked whether they could be fair and impartial, and each testified t hat either he or his family or friends had been victims of violent crimes. Johnson , 215 Ill. Ap p. 3d at 724 . In Stone , the potent

ial jurors ga

ve answers d

uring voir d

ire that dem

onstrated a c lear and strong bias against the defendant. Stone , 61 Ill. App . 3d at 663-6 6. Here, on the other han

d, the poten

tial jurors did not give statements during voir dire demonstr

ating a bias a

gainst defe

ndant and, a s noted, gave responses that defense counsel could have reasonably inter preted as demonstrating sympathy for defendant. Acco rdingly, th ese cases pro vide no basi s for granti ng defenda

nt a new trial. Defendant finally claims that counsel was ineffective for failing to investigate the extent of a juror’s communications with the rest of the jury regarding an article the jur or read about the case during trial. The record shows that, on the second day of trial, a juror informed the sheriff that he had re ad an article about the ca se in a newsp aper. The ju ror was brou

ght into ope

n court, and the fol lowing coll oquy took p lace:

“THE COURT: O kay. Well , let me ask youthis. *** [ W]hat I ne ed to know from you is w ould this af fect your ab ility to be f

air and impar tial having r

ead this *** article in the paper? MR. WADE [Juror]: Right now it would not. I still have an1-05-1354

17 open mind. T HE COURT: All right. And did you mention thi s t o anybody e lse in th e jury ro om? MR. WADE: I j ust walked in there and m

entioned that I had read the artic le. THE COURT: Okay. But you did n’t discuss the a

rticle at all? MR. WADE: No. No. MR. GUMP [Defense Coun sel] : Did you – d id you actua

lly read the artic le? MR. WADE: Yes, I did.

*** MR. GUMP: Oh, okay. And you didn’t talk about it to any of the other jur

ors? MR. WAD E: No, sir. THE COURT: When you

mentione d that

you read the

article, did anybod

y say oh, ye ah, I saw tha

t article? MR. WADE: No, no one else did. MR GUMP: Did you hear any radio reports about it or T.V.? MR. WAD E: No, none

whatsoever

. MR GUMP: A

nd that’s all

you saw or re ad just what was – MR

. WADE: Right the article in the Tribune this morning.1-05-1354

18 It was also in the Elk Grove Herald. MR GUMP: Oh, right. A re you go ing to be abl e to put that aside when y

ou’re sitting

on judgme

nt in this cas e? MR. WAD E: Yes, I wo

uld, yes. MR GUMP: And you could continue to give Mr. Lopez a f air and impar tial – MR. WADE: Very definitely. MR GUMP: Okay. And keep an open mind – MR. WADE: Right.” Defendant points to Wade’s response that he could be fair “right now” as indicating tha t the article may have had some influence on his perspective, and to Wade’s statement that he mentione d the article t

o the rest of

the jury. Un

der these cir

cumstanc es, defend

ant asserts, counsel should have taken three “simple steps” to protect his ri ght to an impartial jury. First, defendant claims that counsel should have determined the specific contents of the article instead of taking Wade’s word that he could remain impartial after having read the ar ticle. However, even if we agree that counsel should have done so, defendant has not shown that he was prejudi ced by coun sel’s omis sion. The re cord demonstrates tha t the trial cou

rt safeguar

ded defendant ’s right to a f

air trial by thoroughly ex amining W ade as to any

possible pre

judice resulting f

rom havin

g read the art

icle. See People v. Hicks , 134 Ill. App. 3d 1031, 1034 (1985) (trial court’ s examina

tion and adm

onishmen t of juror w

ho heard a ra

dio broadca st about oth er charges against defendant safeguarded defendant’s right to a fair tria l). Wade’s responses to the1-05-1354

19

court’s examination were unequivocal and clearly demonstrated an ability t o put the article aside and continue to give defendant a fair trial, and defendant has pointed to no evide nce suggesting that Wade

was prejudi ced against h im by havi

ng read the a

rticle. We

therefore f

ind that counsel’s f

ailure to asc ertain the art

icle’s conte

nts did not d

eny defend

ant a fair tri al or constit

ute ineffecti ve assistanc e. Second, de fendant cla

ims that co

unsel shoul d have asked

the court to i

nquire of the other jurors about their knowledge of the article and whether it would affect thei r ability to be fair. However, d

efendant c annot show

that he was prejudiced by counsel’s f

ailure to make that requ

est because not

hing in the re cord indicat es that the ot

her jurors ha

d read the art

icle or that they were prejudiced by its content s. Rather, t he record shows that, in

response to

questions by defense counsel and

the court, W

ade stated th at he had not discussed the article’s contents with the other jurors and that none of t

he other jurors indicated

they had see

n the article w

hen Wade m

entioned having read it. Under these circumstances, we cannot say that counsel was ineffective for fail ing to ask the co

urt to questi on the jurors

about the art

icle. Third, def

endant claim s that couns el was inef fective for failing to

request add

itional admonishments to inform the jury it was not to consider anything it might have read about the case in the ne

wspaper. W

e disagree. T

he record est

ablishes tha

t only one ju

ror read an ar

ticle about the ca se, that the j uror did not discuss that

article with

any other ju

rors, and th at the court admonished that juror not to discuss the article. The court again i nstructed the jury at the close of evidence th at day not to

discuss the c ase and to ref rain from any newspa

per articles or radio reports abou

t the case. Moreover, at th e end of tria l, the court i

nstructed th e jury that th e only1-05-1354

20

evidence it could consider was the testimony of the witnesses and the exhibits received by the court. Ther

e is a strong presumption that jurors follow the

instruction s given by th e court ( People v. H arris , 288 Ill. Ap p. 3d 597, 6 05 (1997)), and nothing in the record

rebuts that presumpt ion. Accord

ingly, def endant has n

ot shown th at the result o f the trial w ould have be en different had counsel requested additional admonishments. Johnson , 206 Ill. 2d at 362. Defendant next contends that the trial court erred when it faile d to instruct the jury on second de gree murde r based on provocat ion resul ting from mut ual combat . Defendan t claims that the instruction was warranted because there was evide nce in the record that, if believed by the jury, sh owed that th e shooting o ccurred whe n defendan

t acted unde

r sudden and

intense passion stemming from serious provocation. The decision to issue a jury instruction is within the di scretion of the trial court, and a reviewing court will not reverse that decision absent an abuse of that discretion. People v. Woodard , 367 Ill. App. 3d 304, 315 (2006). An instruction on second degree murder based on serious provocation sho

uld be given

only when t

here is some evidence o f serious pr ovocation i

n the record that, if believed by the jury, would reduce the crime to second degre e murder. People v. Jackson , 304 Ill. Ap

p. 3d 883, 8 93 (1999). A person co mmits se cond degree murder wh en he comm

its first deg

ree murder

while acting either under a sudden and intense passion resulti ng from serious provocation by the victim, or under the belief that the circumstances surrounding the killing would j ustify or exonerate it s commi ssion. 720 I LCS 5/9-2( a)(1), (a)(2)(West 200 2). Serious provocatio n is defined as “conduct sufficient to excite an intense passion in a reasona ble person.” 720 ILCS1-05-1354

21

5/9-2(b) (West 2002). T

he four cate gories of provocation that courts r

ecognize as

sufficien t to warrant a sec ond degree m urder instru

ction are mu

tual quarrel

or combat , substantia

l physical injury or assault, illegal arrest, and adulte ry with the offender’s spouse. People v. Cook , 352 Ill. App. 3d 10 8, 129-30 (2 004). Defendan t claims th at suffici ent evidenc e was presen ted that he an

d Blanca eng aged in mutual qu

arrel or com

bat on the ni ght of the in

cident to sup

port a secon

d degree m

urder instruction . Defenda

nt contends

that the inst

ruction was

warranted b ecause Blan

ca “repeated

ly informed [him] of her infidelity” on the night of the shooting, he and Blanca argued before and after defendant was at his auto repair shop, he received injuries to his face during the night, and Blanca sust

ained injuri es to her hand. Defend ant further

asserts that h

is and Blanc a’s “severe intoxicatio n” created a s trong sugge stion that B lanca’s reve lation of in fidelity es calated into mutual co mbat. Mutual combat is defined as “ ‘a fight or struggle which both parties enter wil lingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death

results fro m the com

bat.’ ” People v. Thompson , 354 Ill. Ap p. 3d 579, 5 88 (2004), quoting People v. A

ustin , 133 Ill. 2d

118, 125 (1 989). Mutua l combat w

ill not be fo

und where the manne

r in which th e accused ret aliates is ou

t of all prop ortion to the

provocatio n, particula

rly where the homicide is committed with a deadly weapon. Austin , 133 Ill. 2d at 127. One who instigates a

quarrel cann

ot rely on the

victim’s re sponse as ev

idence of m

utual com bat ( People v. Delgado , 282 Ill. Ap

p. 3d 851, 8 59 (1996)), and there is n o mutual c ombat if “ sufficien t time had lapsed between the alleged provocation and the homicide to permit the voice of reason to be1-05-1354

22

heard” ( People v. C oleman , 124 Ill. Ap p. 3d 285, 2 89 (1984)). In this case, we find tha

t the record c ontains no e vidence of

a “mutual q

uarrel” betw een defendant and Blanca t

hat would w arrant a second degree m urder instru

ction. This

was not a

“ mutual” struggle that Blanca entered “willingly. ” Austin , 133 Ill. 2d at 125. Acc ording to defendant ’s own state

ments, Bl anca initiall

y told him

that she “had

another m an” when defendant returned ho me from

work on the

evening of

February 9, 2002. Def

endant then

went to his auto repair shop and remained there for at least one-half hour smoking cigarette s and listening to music. Defendan

t then loaded

a gun, retur

ned home, drank beer, danced, and listened to music. De fendant we

nt to the dow

nstairs bedr

oom, con fronted Bl anca about t he other m an, then returned to t

he kitchen to

smoke m ore cigarette s and drink m ore beer. De fendant th en returned to the down stairs bedro om and aga in confron

ted Blanca a

bout the oth er man. W

hen Blanca turned away and would not speak to him, defendant pulled out a gun and shot her in the head. The record r

eveals that d

efendant w as the aggress or who initi ated the qua rrel and then responded disproportionately to the alleged provocati on. Thus, defendant was not entitled to a second degr

ee murder i

nstruction. See Jackson , 304 Ill. App. 3d at 893-94 (defendant not entitled to provocation instruction where he insti gated the combat and responded to being grabbed by s tabbing the

unarmed v

ictim). Defendan t neverthele ss contends

that the inst

ruction was

warranted b ased on evid ence that Blanca

“repeatedly

informed [him] o f her infid

elity” prior t

o the shooti

ng. Howev er, mere words are insufficient to constitute serious provocation. People v. W hite , 353 Ill. App. 3d 905, 915 (2004). Moreover, the record shows that defendant shot Blanca many hours after she1-05-1354

23

initially told him that she “had another man.” We believe there was sufficient time “to permit the voice of rea son to be hea

rd” ( Coleman , 124 Ill. Ap p. 3d at 289 ) and to there fore negate defendant ’s argumen

t that he was

acting unde

r a “sudden a

nd intense p assion” bas ed on Blanc a’s revelations . See People v. H arris , 154 Ill. Ap p. 3d 308, 3 18 (1987) (f

inding that d

efendant w as not acting u

nder a sudde

n and intens e passion res

ulting from

mutual co mbat wher

e, after a shoving m

atch, defe ndant left t

he victim, saw him on

the street ap

proximate ly 15 minu

tes later, and shot him

to death). Defendant also claims that the instruction was warranted based on evidence tha t he and Blanca argu

ed, fough t, and were i

ntoxicated on the night o f the shoot ing. Defen

dant’s claim

is contradicted by his own statements to police that he and Blanca did not fight or a rgue during the incident. Moreover, this

was not a fi ght on equal

terms, as t

he record shows that def

endant was armed with a .357 revolver, while Blanca was unarmed and lying under the covers in bed, cradling a pi llow. There fore, even if defend ant’s allega

tions of fi ghting and i

ntoxication

were true, defendant’s response of shooting Blanca was clearly not proportional

. Austin , 133 Ill. 2d at 127; Jackson , 304 Ill. App. 3d at 893. Accordingly, the trial court did not abuse its discretion by refusing to give the jury a second degree murder instruction. Defendan t next conten

ds that the tr

ial court erre d when it all owed the St ate to introd

uce other crimes evidence of unrelated bullet holes inside his house. Defendant cla ims that the evidence di d not rebut h

is defense t

hat the shoo ting was acc idental and t hat it had no

purpose other than to

demonstr

ate his prope

nsity to com

mit violen

ce. Generally, evidence of

prior bad act s is not adm issible to show a defendant’s prop ensity1-05-1354

24

to commit crimes. People v. K liner , 185 Ill. 2d

81, 146 (19 98). Howev er, such evi dence is admissible if it is relevant for any other purpose, such as to show intent, ident ity, modus operandi , motive, or absence of mistake. People v. Wilson , 214 Ill. 2d 127, 135-36 (2005). The admissibi lity of othe

r crimes evidence is wi

thin the sou

nd discretion of the tria

l court, and

its ruling on the matter will not be reversed absent a clear abuse of that discretion. Wilson , 214 Ill. 2d at 136. In this case, prior to trial , the State so ught to intro duce eviden

ce showing

that gunsho ts had been fi

red in defen

dant’s hom

e prior to the

shooting of

Blanca. Ov er defense c ounsel’s objection, the trial cou

rt ruled that t

he evidence

was admis sible to show

defendant ’s motive, intent, and

absence of

mistake. F or purposes

of this app eal, we need

not decide w

hether the tr

ial court’s rulin

g to allow th

is evidence was error beca use, for th e reasons tha

t follow, w e find that any such err

or was harm

less. Our suprem

e court has re

peatedly he ld that the im

proper intro duction of

other-crimes evidence is harmless er

ror when a de fendant is neither preju diced nor de

nied a fair t

rial based upon its admission. See, e.g. , People v. N ieves , 193 Ill. 2d 513, 530 (2 000); People v. K liner , 185 Ill. 2d 81, 147 (1998). The record shows that Detective Bianchi testified t hat he photograph ed several bu

llet holes in

various bed

rooms in d

efendant’s

house. Und

er crossexamination, Detective O’Shea testified that he asked defendant about the “hole in t he bedroom,” and that defendant stated that he had previously shot a gun in the house but that he did not shoot it at Blanca. The record further reveals, however, that no other r eferences were made to the bullet holes , including

during open

ing and clos ing arguments. There fore, any prejudicial ef fect1-05-1354

25

from these isolated references to the bullet holes was harmless because of the overwhelming evidence of

defendant ’s guilt. See Nieves , 193 Ill. 2d a t 530-31 (f

inding that p

rejudicial ef

fect from isolated reference to defendant’s criminal activity in another state was over shadowed by the substantial

evidence of

defendant ’s guilt); People v. D aniels , 331 Ill. App. 3d 380, 390 (2002) (isolated references to defendant’s lack of a gun permit found to be harmless in view of the overwhelming evidence of the defendant’s guilt). Accordingly, defendant was not prejudiced by evidence of

the bullet ho les and any e rror in adm

itting evide

nce of them

was harml ess. Defendant’s final contention is that the trial court err ed by failing to give the jury a limiting in struction at

the time th e other crim

es evidence

was admit

ted. Defen

dant furthe

r argues that the instruction that the trial court did ultimately submit to the jury was a misleading instruction. The record s hows that, p

rior to trial, the court rul ed that Jorge Lopez could

testify tha

t defendant pointed a gun at Blanca on three occasions prior to the murder, and that Det ective Bianchi cou

ld testify to

bullet holes

he found in

defendant ’s house tha

t were not cre ated when Blanca was shot. The court told defense counsel that it would issue the appropr iate limiting instruction to the jury at the end of trial, and specifical ly offered to also instruct the jury at the time the evidence was introduced. Despite the court’s offer, defense counsel did not ask the court to orally instruct the jury when Jorge or Detecti ve Bianchi testified. The record also shows that, following closin

g argumen

ts, the court

submitted

a limiting

instruction

to the jury in accordance

with IPI Cri

minal 4th No. 3.14 without objection from defendant. The instruction stated that:1-05-1354

26 Evidence will be received that the de fendant has been involved in

conduct oth er than that charged in th e indictme nt. Th is evidence will be r eceived on t he issues of

the defend

ant’s intent, motive, or absence of mistake and may be considered by you only for th at limited p

urpose. It is for you todetermine

whether the

defendant

was involve d in t hat conduct

and, if so, what weigh t should be g iven to this evidence on the issue s of intent, motive or a bse nce of mistake. IPI Criminal 4 th No. 3.14. The court al so gave the j ury the same instructio n orally, su bstituting “ evidence has been received” f

or “evidenc e will be received.” In his reply brief, defendant acknowledges that both of his claims ordinarily would be waived because he failed to ask the court to give the jury an oral i nstruction prior to admission of the other cri

mes evide

nce, failed

to object to t

he written in struction th at was ultim ately given t

o the jury, an

d failed to r

aise either cl aim in his w

ritten posttr

ial motion . See People v. E noch , 122 Ill. 2d 176, 186 (1988) ( failure to ra ise objection at trial and

include the o

bjection in a

posttrial motion res

ults in waiv er of that is sue on appea l). Howeve

r, defenda nt asks that w e review bot h of these cla

ims under the plain err

or doctrine. Under the plain error doctrine, issues not properly pre served may be considered by a reviewing c ourt under two limited c ircumstanc es: (1) where the evidenc e is closely b alanced, so as to preclude argument that an innocent person was wrongfully convicted; or (2) wher e the1-05-1354

27

alleged error is so substantial that if affected the fundamental fairness of the proce eding and remedying the error is necessary to preserve the integrit y of the judicial process. People v. H all , 194 Ill. 2d 3 05, 335 (20 00). Becau se we have al ready concl

uded that th e evidence o f defenda nt’s guilt was overwhelming, we will only consider whether the alleged errors are of such magnitude that defendant was denied a fair trial and remedying the errors is necessa ry to preserve the integrity of the judicial process. Hall , 194 Ill. 2d at 335. For t

he reasons that follow, we find tha t they are not. Defendan t first claim s that the tria

l court’s fa

ilure to give

the jury a lim

iting instru

ction at the time th e other crim

es evidence

was introdu

ced allowed

that evidenc e to reach the jury “unfettere d” and to sha

pe the jury’s

perception o f defenda

nt until the w

ritten instru

ction was given. To support his argument, defendant relies on People v. H arris , 288 Ill. App. 3d 597 (1997). In Harris , defendan t claimed t

hat trial cou

nsel was ine ffective f

or failing t

o request a limiting instruction for the jury in advance of the State’s presenta tion of other crimes evidence. Harris , 288 Ill. Ap

p. 3d at 605 . This court

disagreed, noting that n

o case law re quired coun sel to request such an instruction, that the other crimes instruc tion was ultimately given at the end of the case, and that there was a strong presumption that jurors follow the ins tructions of the court. Harris , 288 Ill. App. 3d at 605. In dicta , we “sugge st[ed]” th at trial judge s heed the ad vice contained in People v. Denny , 241 Ill. App. 3d 345, 360-61 (1993), that “ ‘trial courts should not only instruct the jury in accordance with IPI Criminal [3d] No. 3.14 at the close of the case, but also orally f

rom the be

nch (unless

defendant

objects) at the time the e vidence is f

irst presente d to1-05-1354

28

the jury.’ ” Harris , 288 Ill. App. 3d at 606. While we do not disagree with our suggestion in Harris , the trial co urt in this ca se did offer to give the jury a limiting instruction at the time the other crimes evidence was i ntroduced. Defendant, however, did not ask the court to do so. Moreover, as in Harris , the jury wa s ultimately given both an oral and written limiting instruction after t he close of evidence, and nothing in the record rebuts the presumption that the jury followed that i nstruction. Harris , 288 Ill. App. 3d at 606; see also People v. H eard , 187 Ill. 2d 36, 61 (199 9) (finding

that trial cou

rt’s failure to g ive limitin

g instructio n to the jury a t the time o ther crime s evidence w as introduce d did not ma

ndate revers al where the

court prope

rly instructe d the jury af

ter closing a

rguments in accordance

with IPI Cri

minal 4th No. 3.14). Finally, an

y error by the

court in fai ling to orall

y instruct the jury would be harmless in light of the overwhelming evidence of defendant’s guilt. See People v. Jackson , 357 Ill. Ap p. 3d 313, 3 21-22 (2005 ) (finding t rial court’s f

ailure to giv e a limiting instruction to the jury regarding other crimes evidence ha rmless where the evidence of defendant ’s guilt was n

ot closely ba

lanced). Ac cordingly, we find tha t the trial cou

rt’s failure

to give the jury

a limiting

instruction

when the other crimes e

vidence was

introduced

does not rise to the level o f plain erro r. Defendan t also claim s that the lim

iting instru

ction the cou

rt provided t

o the jury af

ter closing argu

ments was

ineffecti ve and did no t cure the pre judicial nat

ure of the o ther crime s evidence. D efendant a sserts that, because the instruction

never specif

ied to what “ conduct” it referred, t he jury coul d have belie

ved that the i

nstruction r

eferred to o ther “uncha

rged conduct” that he was involved in, such as carrying a gun in his car and drivi ng while intoxicated.1-05-1354

29

Defendan t further cla

ims that th e written ins truction wa s “meanin gless” and in sufficien

t because it substitute d “evidence will be received” f or “evidenc e has been received.” We find no error in the instruction given by the trial court. Defendant has pointe d to no case law, nor are we awar e of any, th at requires the limiting instruction

to specify t

he precise conduct to w

hich it refe

rred. The co mmittee

notes accom

panying IPI

Criminal 4 thNo. 3.14 al so make no m

ention or rec ommend

ation of the

limiting in struction st

ating the spe cific condu

ct to which it app lies. See IP I Criminal 4th No. 3.14, Co mmittee Comment s. Moreov er, Supre me Court Rule

451(a) provides that wh en Illinois P attern Jury I nstructions contain an a

pplicable instruction , it “shall be

used, unles s the court de termines t hat it does no t accurately s tate the law.” 210 Ill. 2d R . 451(a). In

this case, f

ollowing cl osing argum

ents, the tri al court gave

the jury an oral limiti ng instructi on that preci sely matched the langu age of IPI Criminal 4t

h No. 3.14, and submitted a written instruction that did the same while using “ will be received” instead of “ has been received.” W

e find that t

hese instruc tions prope

rly instructe d the jury tha t the other cr

imes evidence co

uld only be c onsidered f

or the limi

ted purpose

of showin

g defendan

t’s motive , intent, and absence

of mistak

e. See Heard , 187 Ill. 2d at 61 (trial court’s use of IPI Criminal 3d No. 3.14 infor med the ju

ry of the lim

ited purpos e for which

it could con sider the oth er crimes evidence). There was no plain error in this case. For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. Affirmed. GARCIA a

nd R. GOR

DON, JJ., concur.1-05-1354

30