THIRD DIVISION

									September 25, 2002

No. 1-00-3046

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the 

								)	Circuit Court of

	Plaintiff-Appellee,				)	Cook County.

								)

		v.						)	               

								)

HECTOR MERCADO,				  	)	Honorable

								)	James D. Egan,

	Defendant-Appellant.			)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	In general, the Illinois Supreme Court Committee on Pattern

Jury Instructions in Criminal Cases takes the position that an

instruction on particular types of evidence should not be given

unless some special guidance from the judge would be useful. 

Committee Note to Illinois Pattern Instruction (IPI) Criminal No.

3.15.  An exception is made when identification is an issue for

the jury.  Then, the jury is told to consider specific

circumstances of identification.  This case concerns use of the

word "or" between each of the circumstances contained in the

instruction.

	Following a jury trial, defendant Hector Mercado was

convicted of first degree murder, armed robbery, and home

invasion, and sentenced to 92 years in prison for murder and

concurrent sentences of 30 years each for the other two offenses.1  Defendant appeals his convictions, contending: (1) the trial court misstated the law in its instruction to the jury

with respect to evaluating eyewitness identification testimony;

(2) the trial court erred in admitting into evidence gruesome

photographs which lacked probative value; (3) his extended-term

sentence was unconstitutional under the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (4) the trial court erred in factoring the age of the

deceased into its sentencing determination.  We affirm.

FACTS

	The State's evidence established defendant and co-defendant

Audrey Ann Klimawicze lived in the third-floor apartment directly

above the apartment where co-defendant's mother, Audrey Virginia

Klimawicze, lived.  On the night of July 31, 1997, they broke

into Klimawicze's apartment and killed her by stabbing and

strangling her.  They took money from the apartment and used it

to buy drugs.  They later attempted to dispose of the victim's

body by placing it in a garbage can in the alley and setting the

can on fire. 

	At trial, Bonnie Gentile, co-defendant's stepsister and the

victim's daughter, testified that she returned home from the weekend on August 2, 1997, and found her mother's apartment in

disarray.  The back door was ajar, all the white dish rags were

missing from the kitchen, and birthday and Christmas cards where

her mother kept money were strewn about on the floor.  

	Joseph Gioia, the victim's neighbor, testified that on the

morning of August 2, 1997, he saw a smoldering garbage can in the

alley and later saw flames coming out.  He called 911, and the

firemen put out the fire.  The next morning, Gioia observed a

human foot and part of a leg in the garbage can.  Gioia

identified People's Exhibit No. 26 as a photograph of the body

that he saw in the garbage can.  Constance Cook, another

neighbor, testified that on August 1, 1997, she was standing on

her back porch and saw defendant pushing a heavy garbage can down

the alley.  She later gave a description of defendant to the

police and identified defendant in a lineup at the police

station.     

	Chicago Police Detective Joseph Danzl testified that on

August 2, 1997, he arrived in the alley in response to Gioia's

911 call and saw an unidentified woman's buttocks, legs, and

burned feet sticking out of a partially burned garbage can.  The

victim's head was wrapped in a white towel, and a green rug was

inside the can.  Detective Danzl identified People's Exhibit No.

26 as a photograph depicting the victim's body in the garbage

can.  He identified People's Exhibit No. 38 as a photograph depicting the victim's remains, a green rug, part of the garbage

can, and some garbage.  He also identified People's Exhibit No.

39 as a photograph depicting a close-up of the victim's face. 

The photos in exhibits 38 and 39 were taken at the morgue.  

	Detective Robert Lenihan testified that he saw defendants

walking down the street on August 2, 1997, and asked them to

identify a photograph of the victim.  Both defendants denied that

they recognized the person.  

	Dr. Joseph Cogan, a medical examiner, testified that he

performed an autopsy on the victim, and he determined the cause

of death was multiple injuries, including multiple stab wounds,

slash wounds, blunt force injury, and strangulation.  The burns

on the victim's body were sustained post-mortem.  

	Police Officer Thomas Ginnelly processed the victim's

apartment and found blood samples determined to be consistent

with the victim's DNA and fingerprints on the kitchen table

determined to be those of co-defendant.  

	On August 3, 1997, defendant made several statements to

police.  He first denied any knowledge of the victim's death.

Then, he said when he returned home from work on July 31, co-

defendant told him she had fought with and stabbed her mother and

gotten a homeless man to put her body in the garbage.  Defendant

said he moved the garbage can down the alley but denied setting

it on fire.  Defendant later repeated the story, then gave a third account of what happened.  He said on July 31, co-defendant

was talking about killing her mother.  They went to her mother's

apartment.  Defendant saw co-defendant kick the victim and stab

her several times.  They then took money from the apartment and

went to buy heroin.  The next day, they put the victim's body

into a garbage can.  Defendant denied setting it on fire.  

	Defendant's final statement to police was memorialized into

a handwritten statement, signed by defendant, and published at

trial.  In that statement, defendant said co-defendant asked him

to help her kill her mother.  Co-defendant grabbed a long black

cord and went downstairs to her mother's apartment.  Defendant

followed.  He saw co-defendant arguing with her mother.  Co-

defendant then kicked the victim and forced her into the

apartment.  Co-defendant wrapped the black cord around the

victim's neck and choked her.  She told defendant to stab the

victim.  Defendant said, "I'm sorry, lady," and stabbed the

victim three times with his hunting knife.  They took money from

the apartment and left to buy heroin and cocaine.  When they

returned, the victim was still gasping and bleeding on the floor. 

Defendant put the knife, cord, and other items into a plastic bag

and threw them in a dumpster.  The next day, they placed the

victim's body and the rug she had been lying on inside a garbage

can and pushed it into the alley.  Late that night, they poured

terpentine over the can and lit it on fire.  

	Joe Martinez, a cabdriver, testified for the defense.  He

said he picked up both defendants and co-defendant's daughter on

August 2, 1997.  In the cab, co-defendant stated she had stabbed

her mother and said, "Hector came through for me real good." 

Defendant said "the bitch deserved it," and "that's all right,

they can't prove anything."  Defendant testified on his own

behalf and denied any participation in the murder.  He said co-

defendant told him she killed her mother, but he did not believe

her.  He denied ever reading the handwritten statement

memorializing his confession.     

	During the jury instructions conference, the State requested

the jury be given an instruction on the factors to consider in

weighing identification testimony, Illinois Pattern Instruction

(IPI) Criminal No. 3.15, submitted as State's Instruction No. 11. 

The judge read the instruction to the jury, including the

connector "or" between the five factors to be considered.  The

instruction reads:

			"When you weigh the identification

testimony of a witness, you should consider

all the facts and circumstances in evidence,

including, but not limited to, the following:

		[1] The opportunity the witness had to view

the offender at the time of the offense.

					[or]

		[2] The witness's degree of attention at the

time of the offense.

					[or]

		[3] The witness's earlier description of the

offender.

					[or]

		[4] The level of certainty shown by the

witness when confronting the defendant.

					[or]

		[5] The length of time between the offense

and the identification confrontation." 

Illinois Pattern Jury Instructions, Criminal, 

No. 3.15 (3d ed. 1992) (hereinafter IPI

Criminal 3d).  	

	Defense counsel did not object to the instruction

being given.

	After closing arguments and deliberations, the jury found

defendant guilty of first degree murder, home invasion, and

aggravated robbery.  The trial court determined defendant was

eligible for the death penalty.  At sentencing, the court

declined to impose the death penalty but found defendant

qualified for an extended-term sentence based on the brutal and

heinous nature of defendant's conduct.  730 ILCS 5/5-5-3.2(b)(2)

(West 2000).  

	Defendant was sentenced to 92 years' imprisonment for first

degree murder and concurrent sentences of 30 years each for home

invasion and aggravated robbery.  In sentencing defendant, the

trial judge said, "I was looking at the age of [the victim]

figuring that in some way.  But I don't believe 62 years is

enough at this point.  I believe a sentence as to the murder

charge would be 92 years as to both of you.  As to the armed

robbery and home invasion, there will be a concurrent term of 30

years each."     	

DECISION

	I. JURY INSTRUCTION

	Defendant first contends the trial court misstated the law

in its instruction to the jury regarding evaluating eyewitness

opinion testimony.  One of the instructions given to the jury,

submitted as State's Instruction No. 11, differed from IPI

Criminal 3d No. 3.15 in that it included the connector "or" in

between the five factors to be considered.  However, the first

sentence of the instruction as well as all of the applicable

cases clearly state that all five factors are to be considered and are not mutually exclusive.   People v. Gonzalez, 326 Ill. App. 3d 629, 638-39, 761 N.E.2d 198 (2001).  

	The Committee Note attached to IPI Criminal 3d No. 3.15

instructs the user to only "give numbered paragraphs that are

supported by the evidence," and "[t]he bracketed numbers are present solely for the guidance of court and counsel and should

not be included in the instruction submitted to the jury."  We

agree with defendant that the word "or" placed in brackets was

also designed solely for the guidance of the court and counsel

and not to be included in the instruction to the jury.  Defendant

contends the instruction as given is contradictory, confusing,

and misstates the law, because it instructs the jury to consider

all of the factors and then tells the jury it need only consider

any one of the factors.

	Defendant's failure to object to this instruction at trial

or raise the issue in a post trial motion amounts to a waiver of

the issue.  Even if the issue is not waived, we find the error in

the jury instruction was harmless in light of the evidence

presented at trial in favor of conviction.  A jury instruction

error is harmless if the result of the trial would not have been

different if a proper instruction had been given.  People v. Kirchner, 194 Ill. 2d 502, 557, 743 N.E.2d 94 (2000).  Based on the record, we find that any error in the jury instructions was

harmless beyond a reasonable doubt.   

	Defendant relies on Gonzalez, 326 Ill. App. 3d at 635, where this court, in considering this issue, held the jury instruction

misstated the law and denied the defendant a fair trial.  The

Gonzalez court further found the evidence was "closely balanced," as the State's case was based entirely on circumstantial evidence through identification testimony of two witnesses.  Gonzalez, 326 Ill. App. 3d at 635.  

	This case is distinguishable, as the evidence was not

"closely balanced," but was overwhelmingly in favor of

conviction.  At trial, the State introduced into evidence the

eyewitness testimony of Constance Cook, who saw defendant pushing

a "very heavy" garbage can down the alley the day after the

murder.  Most damaging was defendant's signed confession

describing in detail how he and co-defendant killed the victim

and disposed of the body.  His statement was corroborated by the

physical evidence.    

	The court in Gonzalez also noted comments by the prosecutor to the jury reinforced the trial court's error by specifically

drawing the jury's attention to the use of the term "or" between

each of the factors.  Gonzalez, 326 Ill. App. 3d at 640-41.  In this case, the prosecutor correctly argued to the jury in closing

that they were to consider all five of the factors in evaluating

eyewitness testimony.  Unlike Gonzalez, the evidence in this case was not closely balanced, and the prosecutor correctly explained

the instruction.  We find the outcome of the case would not have

been different had the jury been given a proper instruction.     

	II. ADMISSION OF PHOTOGRAPHS   

	Defendant next contends the trial court's admission into

evidence of photographs of the victim's face and charred body deprived him of a fair trial because they lacked probative value

and inflamed the jury against defendant.  Specifically defendant

objects to People's Exhibit No. 26, showing the garbage can in

the alley with the victim's legs and feet sticking out, No. 38,

showing the state of the victim's body as it appeared in the

medical examiner's office, and No. 39, showing a close-up of the

victim's face.

	The decision to admit photographs into evidence is within

the discretion of the trial court, and the court's decision will

not be overturned absent an abuse of that discretion.  People v. Rissley, 165 Ill. 2d 364, 403, 651 N.E.2d 133 (1995).  If the photographic evidence is relevant to prove facts at issue, it is

admissible and can be shown to the jury, so long as it is not so

inflammatory or prejudicial that it substantially outweighs its

probative value.  People v. Benford, 295 Ill. App. 3d 695, 698, 692 N.E.2d 1285 (1998).  Such photographs are admissible despite the fact they may be gruesome or inflammatory or even

"disgusting."  Rissley, 165 Ill. 2d at 405.  

	Photographs of a decedent may be admitted to prove, among

other things, the nature and extent of injuries and the force

needed to inflict them; the position, condition, and location of

the body; the manner and cause of death; to corroborate a

defendant's confession; and to aid in understanding the testimony

of a pathologist or other witness.  People v. Henderson, 142 Ill. 2d 258, 319, 568 N.E.2d 1234 (1990); People v. Nyberg, 275 Ill. App. 3d 570, 584, 656 N.E.2d 65 (1995).  While the photographs

may be cumulative of the testimony of a witness who described the

condition and location of the body, they also may aid jurors in

understanding this testimony.  People v. Jones, 236 Ill. App. 3d 244, 249, 603 N.E.2d 619 (1992).

	We agree with the State that the photographs to which

defendant objects were relevant to show the position, condition,

and location of the victim's body, and to corroborate the

testimony of Dr. Cogan, Bonnie Gentile, and Joseph Gioia.  Not

only do they depict the victim's remains, but they also show the

white towels and green rug disposed of with the body. 

Additionally, they corroborate the details of defendant's

confession.  We see no abuse of discretion in the court's

decision to admit them or to allow the jury to see them, although

we see little value and some detriment in the jury having

People's Exhibit No. 39.    	

	III. APPRENDI

	Next, defendant contends section 5-5-3.2(b)(2) of the

Unified Code of Corrections (730 ILCS 5/5-5-3.2(b)(2) (West

2000)), which provides for extended-term sentencing based on a

finding of brutal and heinous conduct by defendant, is

unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  

	Defendant contends that, under Apprendi, his extended-term sentence violated his rights to due process of law and trial by

jury because it subjected him to an increased penalty without

requiring notice in the charging instrument or a jury finding

that he qualified for the sentence beyond a reasonable doubt.  In

Apprendi, the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt." 

Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  

	The exact issues raised by defendant were recently rejected

by our supreme court in People v. Ford, 198 Ill. 2d 68, 761 N.E.2d 735 (2001).  In Ford, the trial court found the defendant eligible for the death penalty but instead imposed an extended-

term sentence of 100 years based upon its finding that the murder

was accompanied by brutal or heinous behavior indicative of

wanton cruelty.  The supreme court noted that after defendant was

found eligible for the death penalty, death was the prescribed

statutory maximum sentence.  Ford, 198 Ill. 2d at 73-74.  Therefore, because the maximum sentence was death and the

sentence actually imposed was 100 years, the extended-term

sentence clearly complied with the rule announced in Apprendi.  Ford, 198 Ill. 2d at 73.  We follow  Ford and reject defendant's argument.  In this case, defendant was found eligible for the

death penalty.  Defendant's 92-year extended-term sentence for

first degree murder complies with Apprendi because it does not increase the penalty beyond the prescribed statutory maximum.

	IV. SENTENCING FACTORS

	Finally, defendant contends he was deprived of a fair

sentencing hearing where the trial court factored the age of the

victim into its determination, although that factor does not

reflect the seriousness of the offense or his rehabilitative

potential.  He contends the court explicitly relied upon an

improper factor at sentencing by adding 30 years to 62, the age

of the deceased, in order to arrive at the imposed 92-year

sentence.  Defendant argued in a post-sentencing motion that his

sentence was excessive, but he failed to claim the court used an

improper factor in aggravation.  This issue is waived on appeal. 

See People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997).  

	Defendant acknowledges he failed to preserve this issue for

appeal; however, he contends we should apply the plain error

doctrine in reviewing his sentence.  The plain error rule allows

for appellate review in criminal cases even though a defendant

has not properly preserved an error for review, where the

evidence is closely balanced or where the error adversely

affected the defendant's right to a fair trial.  People v. Mullen, 141 Ill. 2d 394, 401-02, 566 N.E.2d 222 (1990).  This case fits neither category.  We will not consider the issue.  

CONCLUSION

	We affirm the decision and rulings of the trial court.

	Affirmed.

	SOUTHWolfson, J., with South, P.J., and HOFFMANoffman, J., concurring.