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SIXTH DIVISION

September 27, 2002

JUSTICE O'BRIEN delivered the opinion of the court:

Defendant, Larry Brookins, appeals his conviction and 10-year sentence for residentialburglary. Upon appeal, defendant argues that the circuit court erred in instructing the jury withrespect to identification testimony of a witness. We affirm.

At trial, Regina Scolaro identified defendant as the burglar. Ms. Scolaro's testimony iscentral both to defendant's conviction and to his one issue upon appeal, and so we set forth Ms.Scolaro's testimony in some detail.

Ms. Scolaro testified during direct examination that on April 7, 2000, she was living at 1956North Burlington in Chicago, "directly east" of 1955 Halsted Street, where the residential burglaryoccurred. Ms. Scolaro noted that she "share[d] an alley with the people on Halsted."

Ms. Scolaro testified that at about 1 a.m. on April 7, 2000, something "unusual" happened:

"Q. What happened?

A. I-my bedroom has a window, a big window, and it overlooks my alley, and thereis a pretty bright light in the alley. And I happened to see the defendant walking down thealley and-

Q. Did you look out the window for any particular reason?

A. No, I just--I mean I was on my way to bed, and as I get into bed, the window isthere and I just looked out my window.

Q. Now *** you were on the third floor, is that correct?

A. Yes.

Q. Where was this light coming from in relation to [defendant]?

A. There was a - as I looked out over my alley, it's, I have a, directly below me is alittle patio, and then there is my garage, and there is a light post right here as I look out. It'son the--

Q. Indicating to your right?

A. To my right, yes.

Q. And it's--

A. It's a light, and it's very bright. I mean my alley is very well lit.

Q. Was there anything obstructing your view of [defendant] at that time?

A. Absolutely nothing. *** [S]pecifically, as he passed underneath the light, mybedroom light was off, so you could not see, as far as I knew, into my bedroom, but I couldclearly see outside, and as he walked underneath the light, he looked right up at my windowand *** I got a very good view of his face. ***

Q. Where did you see him go, if anywhere?

A. I saw him going through a construction site. There's a townhome or apartmentbuilding, at the time it was in the early stages of development, and it was quite a mess. Therewas a lot of construction and stuff there. And he was rummaging around in there, and thereis no garbage or anything [like] that. It didn't look like he was looking for food. He lookedlike he was looking for something else, and I thought that was unusual.

Q. When you say he was in this construction site, had you lost sight of him up to thatpoint?

A. Not up to that point. I lost sight of him, and then he would reappear and disappearand reappear. And I thought that was really unusual, and I continued to watch.

Q. As he was doing those things and you were watching, did you do anything at thatpoint?

A. At that point I had watched him for [a] couple of minutes. And then when I-- Idon't remember how much time exactly went by, but there was a point when I thought heseems suspicious, his behavior is unusual, and I called 311. ***

Q. What did you see happen next?

A. I saw him actually come towards my house. And my neighbor, who lives directlynext door to me, has a wooden gate and they have it shut, and I did see him go through there. And then at that point, I lost sight of him because he was directly below me and I couldn'tsee him.

Q. Did he ever appear again in your sight?

A. Yes, he did.

Q. Where was that?

A. He reappeared and came out the same way that he went through that wooden gate. Then he was back in my alley again. Then I continued to watch and I saw him go over to thevictim's house. He was in their backyard and he was on the balcony, walking back and forth.***

Q. This was at 1955 North Halsted?

A. Yes.

Q. What happened next?

A. I continued to watch him walk back and forth and then I saw him go down thestairs, and I lost sight of him, and then I looked up and saw him a couple minutes laterwalking around in the house.

Q. How were you able to see in the house?

A. The house is an A frame house, and the whole back of the house is glass, so youcan see. ***

Q. Was [sic] there lights on in the house that you were looking into?

A. No lights on in the house. However, it was well lit because of the lights onHalsted. He has quite a few windows in front of his house as well, and the blinds were open. There is a streetlight right out there, and I could see the light coming in from Halsted and Iwas able to see the defendant in the house walking around going through the stuff.

Q. And were you able to see what the defendant was wearing at that time?

A. Yes. It was all black.

Q. Could you see what he was doing inside the building?

A. Yes, I could.

Q. What was that?

A. He had some sort of a, I don't know what it was. I could see the shape of it, in hishands. I don't know if it was a pipe, I don't know if it was a--I have absolutely no idea whatit was. It was a long type like object in his one hand, and he was going through just openingthings, going through things.

Q. What happened next?

A. I called 911 at that point ***.

Q. And after you called 911, what happened?

A. The police showed up in my alley.

Q. How soon after you made that call?

A. Very quickly. ***

Q. And *** you stayed in your bedroom until you heard the police say 'you're underarrest'?

A. Yes.

Q. What did you do then?

A. Then I went outside and jumped over the fence in the back. And I was mad athim, and I said, 'That is the mother f----- who I saw in the house.'

Q. And when you said that, who were you indicating?

A. The defendant.

Q. At that time, what was the defendant wearing?

A. He had a jacket on that I had originally seen him wearing when he walked downthe alley. It was cream colored on the outside.

Q. At what point was the defendant wearing this jacket?

A. The defendant had the jacket on when I saw him walking down the alley, andwhen I got that, almost still life picture of him when he walked right under the light andlooked right up at me. I mean I made eye contact with him whether he knew it or not. Ilooked right into his eyes and specifically noted what he had on. And then when they tookhim, when he came out of the house and when they arrested him, he had that jacket on."

During cross-examination, Ms. Scolaro testified:

"Q. Okay. The lighting that you're indicating there is from Halsted Street, right?

A. Yes, it is.

Q. It's the streetlights that are on Halsted Street?

A. Yes.

Q. And it's back lighting this interior of this house, correct?

A. It's shining through the front window.

Q. So at that point what you're seeing is shadows of a person, correct?

A. It was not a shadow. It was--I could see the person. I could see very well into thehouse. It's all glass in the back, there is no curtains, nothing. There were no leaves on thetrees. There was bright light. I could see the defendant walking through the house.

Q. There was [sic] no lights in the house, correct?

A. As far as I know, the only light that was in the house was a VCR flashing. But Icould see very well inside. The light was very sufficient coming through the front window.

Q. So you're able to see from your window, across the patio area, across the garage,across the alley, through the yard, into the house, and see a VCR flashing?

A. You keep bringing this up. You're looking past the garage and then the alley. You're making it sound[] so dramatic. It's not far and my eyes don't pass over each other. And then there comes the house. It's a house with all windows, no curtains. My house is onthe third level, direct shot in.

Q. And from that--

A. It's not as complicated as you're making it sound.

Q. And from that distance, from that distance you could see the VCR flashing?

A. Absolutely."

Officer Dominick Sarlo testified that at around 1:20 a.m. on April 7, 2000, he and his partnerresponded to a suspicious person call at 1955 North Halsted Street. Officer Sarlo saw defendant exita yard across the alley from 1955 North Halsted Street. The officers detained defendant, who wascarrying a bag containing about $140 in change. Ms. Scolaro came out and identified defendant,after which defendant said, "I just took the change." The officers placed defendant under arrest andwalked over to 1955 North Halsted Street, where "it appeared that the door was kicked in. The doorjamb was all broken out by the lock area."

Jerry Armstrong testified that he lives at 1955 North Halsted Street, that he does not knowdefendant, and that he did not give defendant permission to enter his house on April 7.

The jury convicted defendant of residential burglary and the trial court sentenced defendantto 10 years in prison. Defendant filed this timely appeal.

Defendant's only argument upon appeal is that the trial court erred in instructing the jury withrespect to Ms. Scolaro's eyewitness identification testimony.

Defendant concedes that he waived review of this issue by failing to object to the instructionat trial or raise the objection in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186(1988). However, waiver is a limitation upon the parties, not the court. People v. Williams, 188 Ill.2d 293, 301 (1999). We choose to address the issue upon its merits.

Defendant contends that the trial court denied him a fair trial by giving a pattern juryinstruction that misstated the law with respect to evaluating Ms. Scolaro's eyewitness identificationtestimony.

The trial judge gave the following instruction to the jury based upon the wording of IllinoisPattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992) (hereafter, IPI Criminal 3d):

"When you weigh the identification testimony of a witness, you should consider allthe facts and circumstances in evidence, including but not limited to, the following:

The opportunity the witness had to view the offender at the time of the offense.

or

The witness's degree of attention at the time of the offense.

or

The witness's earlier description of the offender.

or

The level of certainty shown by the witness when confronting the defendant.

or

The length of time between the offense and the identification confrontation."

Defendant argues that by using the term "or" between each of the five factors, the instructionerroneously informed the jury that it could select just one of the listed factors to determine thecredibility of the identification testimony. Defendant argues that under well-established case law,the jury was required to consider all five factors. See, e.g., People v. Slim, 127 Ill. 2d 302 (1989);People v. Gonzalez, 326 Ill. App. 3d 629 (2001). Defendant argues that the instructional error wascompounded when the prosecutor emphasized the allegedly erroneous wording of the instruction. Specifically, the prosecutor stated, "Now, they (the five factors) are all separated, you can considerthem as separate."

This court addressed this issue in People v. Gonzalez, 326 Ill. App. 3d 629 (2001). InGonzalez, the trial court gave the same instruction at issue here. In analyzing whether the trial courterred in giving the instruction, the appellate court first noted the wording of IPI Criminal 3d No.3.15:

"'3.15 Circumstances of Identification

When you weigh the identification testimony of a witness, you should consider allthe 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.'" Gonzalez, 326 Ill. App. 3d at 637-38, quoting IPI Criminal 3d No. 3.15.

The appellate court then examined the committee note following IPI Criminal 3d No. 3.15. The committee note explains that the instruction was compiled from factors established by existingcase law and cites to Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977),People v. Manion, 67 Ill. 2d 564 (1977), and People v. Slim, 127 Ill. 2d 302 (1989). The appellatecourt examined those cases and determined that they state that all five factors are to be consideredand weighed in determining whether identification is reliable. Gonzalez, 326 Ill. App. 3d at 639.

The appellate court determined that the purpose of the Committee's use of the word "[or]"between the factors listed in IPI Criminal 3d No. 3.15 is to inform the user that "'only the particular*** factors that are supported by the evidence should be given.'" Gonzalez, 326 Ill. App. 3d at 639,quoting People v. Lewis, 165 Ill. 2d 305, 354 (1995). In support, the appellate court cited the "User'sGuide" to the pattern jury instructions. The User's Guide states:

"IPI Third employs two conjunctive forms. The word 'and' is used to indicateadditional, required language. The word 'or' is used to separate possible alternatives. Abracketed 'or' ('[or]') is used when the user must choose between alternative paragraphs orpropositions that may be given as part of the instruction when more than one alternative isapplicable." (Emphasis omitted.) Illinois Pattern Jury Instructions, Criminal, User's Guide(3d ed. 1992).

The appellate court further noted (Gonzalez, 326 Ill. App. 3d at 639-40) that the committeenotes to IPI Criminal 3d No. 3.15 refer the user to sample set 27.02 for an example of how to use IPICriminal 3d No. 3.15. The example provided in sample set 27.02 does not place the term "or"between the factors listed in IPI Criminal 3d No. 3.15.

The appellate court found that a jury would be confused and unable to reconcile the court'sinstruction to "consider all the facts and circumstances in evidence" with its use of the term "or"between each factor. Gonzalez, 326 Ill. App. 3d at 640.

Finally, the appellate court noted the prosecutor's directive to the jury emphasizing theerroneous instruction in closing argument. Gonzalez, 326 Ill. App. 3d at 640-41. The appellate courtdetermined that the instructional error was not harmless, as the evidence in the case was close andthe erroneous instruction may have contributed to the jury's guilty verdict. Gonzalez, 326 Ill. App.3d at 641. Accordingly, the appellate court reversed and remanded for a new trial. Gonzalez, 326Ill. App. 3d at 641.

We follow the well-reasoned opinion in Gonzalez and hold that the trial court here erred ingiving a version of IPI Criminal 3d No. 3.15 using the word "or" between each of the five factors.

However, our analysis is not finished, as we still must examine whether the trial court's errorwas harmless. First, as in Gonzalez, we examine whether the evidence here was closely balanced.

Defendant claims that the evidence was closely balanced here because there were no burglarytools or fingerprint evidence linking defendant to the crime. Defendant also claims that Ms.Scolaro's identification testimony was suspect because she was too far away, and the lighting wastoo dim, for her to clearly see inside the victim's house. Further, defendant points out Ms. Scolarotestified at trial that she could not remember telling one of the detectives that she had seen defendantturn his jacket inside out. Finally, defendant questions why Ms. Scolaro did not testify about hearingany sounds of defendant breaking into the victim's house or why she failed to testify about hearingthe victim's dog barking.

The evidence in this case was not closely balanced. As extensively set forth above, Ms.Scolaro consistently testified that she looked out her third-floor bedroom window and saw defendantwalking down the alley. Ms. Scolaro explained that the lighting in the alley was "very bright" andthat defendant looked up so that she got a "very good view of his face." Ms. Scolaro furtherexplained that she saw defendant walk through a construction site, then she saw defendant walkthrough her next-door neighbor's wooden gate. She saw defendant walk to the victim's house, whereshe lost sight of him for a couple of minutes, until she saw him again walking inside the victim'shouse. Ms. Scolaro explained that she could see clearly into the house because "the whole back ofthe house is glass" and there were no curtains on the windows blocking her view. Ms. Scolarodisagreed with defense counsel's insinuations that she was too far away, and the victim's house wastoo dimly lit, for her to see inside. Ms. Scolaro explained that the lighting on Halsted Street wassufficient for her to see inside the house, that her house was "on the third level, direct shot in" to thevictim's house, and that her view inside the house was so good that she could even see the victim'sVCR flashing.

Ms. Scolaro further testified that after the police responded to her 911 call and arresteddefendant, she ran outside and immediately identified him. Ms. Scolaro's testimony wascorroborated by Officer Sarlo, who testified that he arrived at the scene and found defendant acrossthe alley carrying a bag of change. Ms. Scolaro ran out and identified defendant; defendant admittedthat he had taken the change.

Given the uncontradicted testimony of Ms. Scolaro and Officer Sarlo, we cannot say that theevidence of defendant's guilt was closely balanced.

Next, as in Gonzalez, we examine whether the result of the trial would have been differentif the proper instruction had been given. We find that even if the trial court had given the properinstruction, and expressly instructed the jury to consider all five factors, the outcome of the trialwould have been the same. With regard to the first factor, the opportunity the witness had to viewthe offender at the time of the offense, Ms. Scolaro testified to her opportunity to view defendantthrough her third-floor bedroom window; that the lighting was very bright and that she got a goodlook at defendant's face; and that she could clearly see through the windows of the victim's houseat the time defendant was committing the residential burglary. With respect to the second factor, thewitness's degree of attention at the time of the offense, Ms. Scolaro testified that she thoughtdefendant was acting suspiciously, and so she continued to watch him from the time he was first inthe alley until he appeared inside the victim's house. With respect to the third factor, the witness'searlier description of the offender, Ms. Scolaro consistently testified that when she first sawdefendant, he was wearing a cream-colored jacket, but that he later took off the jacket, revealing thathe was otherwise dressed all in black. With respect to the fourth factor, the level of certainty shownby the witness when confronting the defendant, Ms. Scolaro testified that when she confronted thedefendant, she stated, "That is the mother f----- who I saw in the house." With respect to the fifthfactor, the length of time between the offense and the identification confrontation, Ms. Scolarotestified that she confronted defendant only a few minutes after defendant had committed the offense.

All five factors support the jury's finding that Ms. Scolaro correctly identified defendant asthe burglar. Thus, the outcome would have been the same even if the trial court had expresslyinstructed, and the prosecutor had argued, that the jury should consider all five factors whenconsidering Ms. Scolaro's testimony. Since the instructional error (and the prosecutorial commentthereon during closing argument) did not affect the outcome of the trial, the error was harmless. Seealso People v. Furdge, No. 1-01-2220, slip op. at 15-16 (July 26, 2002)(holding that the trial courterred in using the word "or" when giving IPI Criminal 3d No. 3.15, but that the error was harmlesswhere the evidence was not closely balanced and the verdict would have been the same even if thecorrect instruction had been given.)

The deletion of the bracketed "or" from the instruction would eliminate this problem.Perhaps, the Committee could reexamine the bracketed "or" in the instruction and recommend itsremoval for the sake of clarity.

Accordingly, we affirm the circuit court.

Affirmed.

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