Find Legal Information

SECOND DIVISION
DECEMBER 9, 2003

No. 1-01-0164

Following a jury trial, the defendant, Heliberto Carrero,was found guilty of aggravated vehicular hijacking in violationof section 18-4(a)(3) of the Criminal Code of 1961 (720 ILCS5/18-4(a)(3) (West 1998)), armed robbery in violation of section18-2(a) (720 ILCS 5/18-2(a) (West 1998)), and two counts ofunlawful use of a weapon (possessing a shotgun with a barrel ofless than 18 inches and possessing a firearm while masked) inviolation of sections 24-1(a)(7)(ii) and 24-1(a)(9) (720 ILCS5/24-1(a)(7)(ii), (a)(9) (West 1998)). The defendant wassentenced to 25 years' imprisonment for aggravated vehicularhijacking and armed robbery. A single conviction was entered onthe two counts of unlawful use of a weapon and the defendant wassentenced to five years' imprisonment. The sentences wereordered to be served concurrently.

On appeal, the defendant contends: (1) his confession wascoerced; (2) the trial court erred in allowing evidence of thedefendant's prior unprosecuted arrest at sentencing; (3) theshow-up identification was unnecessarily suggestive andunreliable; (4) use of the term "or" in the jury instructionconcerning circumstances of identification (Illinois Pattern JuryInstructions, Criminal, No. 3.15 (3d ed. 1992) (IPI Criminal 3dNo. 3.15)), misstated the law and denied him a fair trial; (5)the trial court erred in permitting testimony about weapons andammunition that were not connected to the charged offenses; and(6) the 25-year prison sentence was excessive in light of themitigating factors.

For the following reasons, we affirm the defendant'sconvictions and sentences.

BACKGROUND

The defendant was found guilty of the above offensesstemming from a January 6, 1998, incident in which the victim,Ahmed Meraj, was robbed at gunpoint and his car stolen. Thevictim was in a hardware store parking lot, walking toward thestore, when he heard someone say, "Excuse me. Excuse me, I'mtalking to you." When the victim turned around, the personspeaking was wearing a ski mask and pointing a shotgun at him. The masked person demanded money and the victim's car keys. Thevictim complied and gave him $1 and the keys to his 1992 grayToyota Corolla. The robber warned the victim if he moved, therobber would shoot him. As the robber was leaving, he told thevictim not to tell anyone and that the victim could pick his carup from this same parking lot the next day.

After the robber left, the victim called the police. Minutes later, Officers Kenneth Ritter and Jesse Santiago arrivedat the hardware store. The victim described the robber as 6 feettall, 180 pounds, wearing blue jeans and a black stocking cap. The victim was not entirely sure of the color of the robber'sjacket, but described it as brown. Because of the mask, thevictim was not able to provide the robber's eye color, haircolor, or complexion.

While the victim was with Officers Ritter and Santiago,Officers Joseph Giambrone and Adam Henkels were patrolling thearea in a marked squad car when they received a bulletinregarding the robbery, which included a description of the carand its license plate number. On their patrol they saw a vehiclematching the description of the stolen car. As the officersapproached the car, the driver, identified at trial as thedefendant, backed up the car toward the officers and drove off inreverse. The police pursued. Officers Robert Braun and LarryGuy joined the chase. During the pursuit, Officers Giambrone andHenkels saw the defendant throw a sawed-off shotgun out of thecar.

Eventually, the defendant stopped the car, jumped out, andran. The officers gave chase. As Officer Giambrone ran past thestolen car, he made a cursory search for individuals and saw ablack bag in the rear seat. Officer Braun, after securing thepolice vehicles, entered the stolen car to turn off its engine. At that time, he too saw the black bag and noticed a rifle barrelsticking out of the bag. When Officer Braun opened the bag, hediscovered two long-barreled rifles inside, along withammunition. The rifles were loaded.

The officers eventually caught the defendant. OfficerHenkels grabbed him first and the two fell to the ground in agangway with the defendant under Officer Henkels. The defendantcontinued to struggle with the officers until they were able tohandcuff him and get him to his feet. The officers recovered ablue ski mask from inside the defendant's brown jacket. OfficerGiambrone informed the defendant of his Miranda rights (Mirandav. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602(1966)) and radioed that they had the suspect in custody. Thiswas 15 to 20 minutes after the car was initially stolen. Officers Ritter and Santiago, after hearing over the police radiothat a suspect in the robbery had been apprehended, transportedthe victim to where the arresting officers were holding thesuspect. At the show-up, the police asked the victim if thedetained individual (the defendant) was the person who robbedhim. The victim stated that the defendant looked like the sameman in terms of build and clothes. At the time of arrest thedefendant was wearing a tan or brown jacket and jeans.

At the show-up, the defendant was the only person the policeasked the victim to view. According to Officer Giambrone, at thetime of the show-up the defendant was handcuffed and a policeofficer detained the defendant by one hand and held a mask in theother. Additionally, according to Officers Henkels and Ritter, aflashlight illuminated the defendant for the victim to see.

At the police station, the victim was shown the rifles andammunition found in the black bag in the recovered car. Thevictim stated he had never seen the rifles or ammunition before. The victim was also shown the recovered sawed-off shotgun thedefendant threw out of the car during the chase. The victimidentified the gun as the one used in the robbery.

While in custody, the defendant made three inculpatorystatements. The first occurred while he was being fingerprinted. The defendant told Officer Guy, "[y]ou know, I never shot thatguy. I just robbed him with the gun and took his car." Thesecond statement was during an interview conducted by DetectiveJohn Turney. Detective Turney introduced himself and advised thedefendant of his constitutional rights. The defendantacknowledged his rights, then said he wanted to talk about hisarrest. The defendant told Detective Turney that he wanted toget rid of some guns but his friend would not give him a ride sohe decided to get a car. He went to the hardware store's parkinglot, put on a ski mask, approached a man and asked for some moneyand the man's car keys. The defendant told the man he could pickup his car tomorrow from the same parking lot. The defendantthen drove back to his friend's house to pick up the guns. Shortly after retrieving the guns, the defendant saw policeofficers pull up in a car next to him and he decided he had toget away. During his flight, the defendant threw the sawed-offshotgun out of the car because he was afraid that if he was foundin possession of it, the "feds" would get involved. The finalstatement occurred during the interview of the defendant byAssistant State's Attorney Sara Roth. The defendant repeatedwhat he had stated to Detective Turney to ASA Roth in thepresence of Detective Turney.

Prior to trial, the defense moved to suppress thedefendant's statements, claiming his confession was coerced byOfficer Michael Rice, who the defendant claimed was the arrestingofficer. The defense also moved to suppress the show-upidentification and exclude testimony regarding the recoveredrifles and ammunition. The trial court ruled the confession wasvoluntary and the identification was proper. Regarding therifles and ammunition, the court permitted testimony that thedefendant claimed ownership of the items but disallowed testimonythat he wanted to trade them for drugs.

At sentencing, the State introduced evidence of a prior,unprosecuted arrest for murder. The defense objected and, atleast initially, the trial court sustained the defendant'sobjection. The State argued that the unprosecuted arrest formurder was proper aggravation under the caselaw provided to thetrial court. The trial judge ultimately allowed the evidence,although he stated that the sentences imposed were warranted evenin the absence of the contested aggravation. We address each ofthe defendant's asserted errors in order.

ANALYSIS

I. The Defendant's Confession

The defendant claims his confession was coerced by OfficerRice who, according to the defendant, repeatedly beat him withhis hands, knees, and a telephone book, and threatened to put himin the hospital if he did not cooperate. A pretrial hearing washeld on the defendant's motion to suppress statements. Insupport of his claim, the defendant submitted four photographstaken the day after his arrest, two of which clearly showbruising and scabbing on each side of his face.

When a defendant challenges the admissibility of hisconfession, alleging his confession was coerced, the prosecutionhas the burden of establishing the voluntariness of theconfession by a preponderance of the evidence. People v.Barragan, 266 Ill. App. 3d 961, 971, 641 N.E.2d 535 (1993). However, the standard is heightened where it is either concededor clearly established that the defendant received injuries whilein the custody of the police. Barragan, 266 Ill. App. 3d at 971. Once a defendant establishes that his injuries occurred while inpolice custody, the prosecution must then establish by clear andconvincing evidence that the injuries were not inflicted as ameans of producing the confession. Barragan, 266 Ill. App. 3d at971. Furthermore, the prosecution must supply "'more than themere denial by the State's witnesses that the confession wascoerced'" in order to meet the heightened burden of proof. People v. Woods, 184 Ill. 2d 130, 146, 703 N.E.2d 35 (1998),quoting People v. Wilson, 116 Ill. 2d 29, 40, 506 N.E.2d 571(1987). At a pretrial hearing where it is established that thedefendant's injuries occurred while in police custody, the focusis not upon the credibility of the defendant's account of theinjuries he sustained but "whether the State satisfied its burdento establish by clear and convincing evidence that defendant'sinjuries were not inflicted as a means of producing defendant'sconfession." Woods, 184 Ill. 2d at 149.

At the motion hearing the State called ASA Roth, DetectiveTurney, and Officers Giambrone, Guy, Rice, and James Tarara(Officer Rice's partner). Officer Rice testified he monitoredthe call for the robbery and stolen car. By the time he arrivedat the location of the defendant's arrest, the defendant wasbeing placed in a police squad car. Officer Rice and his partnerreturned to routine patrol until approximately an hour later whenthey returned to the 17th police district. Officer Rice saw thedefendant in the police district while the defendant was beingprocessed at the lockup. Officer Rice testified he was not oneof the arresting officers but had known the defendant for about17 years. Officer Rice testified he never hit, slapped, orordered the defendant to sign a written confession at any timefollowing the defendant's arrest.

Officers Guy and Tarara and Detective Turney corroboratedOfficer Rice's testimony that Officer Rice did not hit, slap, orknee the defendant or hit the defendant in the head with atelephone book. According to the defendant, Rice's partner,Officer Tarara, was present during part of the physical abusereceived by the defendant at the hands of Rice. Officer Tararatestified he was never in the basement with the defendant and thefirst time he saw the defendant that night was when the defendantwas at the lockup in the 17th police district. Officer Guytestified that he never heard Officer Rice threaten to harm thedefendant or order the defendant to sign a written confession. Additionally, ASA Roth testified she asked the defendant how hehad been treated and the defendant responded that everything wasfine; the defendant never told her that he was physically abused.

Regarding the photographs of the defendant's face showingbruising and scabbing, Officers Giambrone and Guy, DetectiveTurney, and ASA Roth all testified that the photographs were notan accurate representation of how the defendant looked the nightof his arrest. ASA Roth testified that she did notice darkdiscolorations under the defendant's eyes the night of thearrest, but she did not notice any redness or scabbing at thetime she interviewed the defendant. Officer Giambrone testifiedthe defendant had an abrasion, "some kind of redness" on his facethat was "attributed to [the defendant's] struggle on the groundwith [the officers]." Detective Turney testified the defendantdid not have anything he would call "an outstanding injury," butthe defendant might have had some blemishes or bruises. Similarly, Officer Guy testified he did not recall the defendantlooking like the defendant did in the photographs, but he couldnot say the defendant did not have any type of physical injury tohis face.

The defendant testified at the pretrial hearing. Thedefendant claimed that he was walking down the street when heobserved Officer Rice in his squad car. Because he had had pastaltercations with Officer Rice, he ran when Officer Rice lookedin his direction. According to the defendant, he was arrested byOfficer Rice in an alley. He was then transported by OfficerRice and his partner to another location where he was viewed bythe armed robbery/vehicular hijacking victim. The defendanttestified that the officer that held him during the show-up (heclaimed it was Officer Rice), held a mask in his other hand. Heis unsure where the mask came from. According to the defendanthe was then transported to the 17th police district and taken tothe basement by Officer Rice. In the basement of the 17th policedistrict, the defendant claims he was physically beaten byOfficer Rice in an attempt to have the defendant sign a writtenconfession. According to the defendant he was "slapped" in theface by Officer Rice, although he could not recall on which sideof his face he was hit. The defendant also claimed he was hitwith a phone book and kneed by Officer Rice. The defendantadmitted he was subsequently interviewed by ASA Roth, who advisedhim of his Miranda rights, which he acknowledged understandingand waiving. He admitted he told her that he committed the armedrobbery and car hijacking. At the pretrial hearing, thedefendant claimed that Officer Rice threatened he would "end upgoing to the hospital" if he did not admit to committing thecrimes. Although he admitted committing the crimes to ASA Roth,the defendant also claims he told her about being beaten byOfficer Rice in order to coerce a confession. The defendantintroduced four photographs, two of which clearly showed bruisingto each side of the defendant's face. The defendant never signeda written confession.

After hearing all of the testimony and taking intoconsideration the facts and circumstances that gave rise to thedefendant's arrest, the trial court determined the statementswere not the product of any physical coercion or beating. Although the trial court made no express finding that thedefendant's injuries occurred after coming into police custody,each party presents its argument in the context of the heightenedburden of proof.⁽¹⁾

It is the trial court's duty to resolve conflicting evidenceand determine the credibility of the witnesses. People v. Jones,184 Ill. App. 3d 412, 425, 541 N.E.2d 132 (1989). While thetrial court was required to find by clear and convincing evidencethat injuries sustained by the defendant were not inflicted as ameans of producing the oral confession (Barragan, 266 Ill. App.3d at 971), a reviewing court will not disturb the trial court'sfactual determinations regarding whether a confession isvoluntary unless those determinations are against the manifestweight of the evidence (People v. Traylor, 331 Ill. App. 3d 464,467, 771 N.E.2d 629 (2002)). The reviewing court may considerevidence adduced at trial as well as at the suppression hearing. People v. Caballero, 102 Ill. 2d 23, 34-36, 464 N.E.2d 223(1984).

In his main brief, the defendant asserts that while "theState did explain a possible abrasion on one side of the[defendant's] face during the arrest[, the State] failed toexplain the rest of the injuries." The State responds that theevidence supports the trial court's implicit finding "that theinjuries sustained on both sides of defendant's face weresustained during the struggle to [arrest and] handcuffdefendant." We agree with the State that the evidence presentedregarding the nature of the injuries sustained by the defendantis not limited to the injuries suffered to only one side of thedefendant's face. We have examined the photographs of thedefendant that were admitted at the pretrial hearing and find theinjuries on each side of his face to be remarkably similar. Itappears that even the defendant recognized the similarities ofthe injuries depicted in the photographs as he claimed at onepoint during the pretrial hearing that all the injuries werecaused by the slaps from Officer Rice, although he also testifiedhe could not recall on which side of his face he was hit. Hedenied any of the injuries were caused by being hit by aphonebook.

At trial, Officers Henkels testified he "tackled" thedefendant to the ground and landed on top of the defendant asthey fell in the gangway. At the pretrial hearing OfficerGiambrone testified he and Officers Henkels and Guy struggledwith the defendant on the ground for "at least a minute" in aneffort to handcuff him. After handcuffing the defendant, theofficers rolled the defendant over and recovered the ski maskfrom inside the defendant's jacket. Although each of the State'switnesses disputed that the defendant looked as bruised as he didin the photographs taken the following day, Officer Giambroneprovided pointed testimony as to the source of the defendant'sinjuries. Officer Giambrone testified, "I believe he had somekind of redness that was attributed to his struggle on the groundwith us."

The State convincingly argues that the injuries in thephotographs are consistent with the defendant having been"tackled" to stop his flight and struggling with three policeofficers over being handcuffed. Although not necessary for ourholding, we agree with the State that one explanation for thedefendant's injuries being more prominent in the photographs isthat the redness and bruises observed by some of the officersresulting from the manner of the defendant's arrest did notbecome fully visible until the next day when the photographs weretaken.

In light of the reasonable explanation for the defendant'sinjuries presented through the credible testimony of the State'switnesses, we agree with the trial court's implicit ruling thatthe State proved by clear and convincing evidence that theinjuries were not inflicted as a means of producing theconfession. See Barragan, 266 Ill. App. 3d at 971. "We findthat the manifest weight of the evidence does not require acontrary conclusion to that reached by the trial court." Peoplev. Case, 218 Ill. App. 3d 146, 159, 577 N.E.2d 1291 (1991). Wetherefore reject the defendant's claim that his confession wasinvoluntary.

The material in this section in not publishable underSupreme Court Rule 23.

[Nonpublishable material removed here]

III. The Show-Up Identification

The material in this section is not publishable underSupreme Court Rule 23.

[Nonpublishable material removed here]

IV. IPI Criminal 3d No. 3.15

The jury was given IPI Criminal 3d No. 3.15, governing witnessidentification, without objection by the defense. The defendantseeks to invoke plain error regarding the trial court's inclusionof the word "or" in listing the various factors to be consideredin weighing the identification testimony. The defendant assertsthat in so instructing the jury, the jury was misled intobelieving that only one of the five factors was sufficient for itto determine the credibility of the identification testimony,when, in fact, the jury should consider all factors which areapplicable to the evidence in the case. People v. Gonzalez, 326Ill. App. 3d 629, 639, 761 N.E.2d 198 (2001).

IPI Criminal 3d No. 3.15 reads:

"3.15 Circumstances of Identification

When you weigh the identificationtestimony of a witness, you should considerall the facts and circumstances in evidence,including, but not limited to, the following:

[1] The opportunity the witness had to viewthe offender at the time of the offense.

In instructing the jury, both orally and in written form, thetrial court's instruction was essentially verbatim from IPICriminal 3d No. 3.15. Similarly, during closing argument, theprosecution told the jurors that when weighing the identificationtestimony of a witness, they should consider all the facts andcircumstances in evidence and listed the five factors of IPICriminal 3d No. 3.15, including the "or" between the last threefactors. The State then addressed each of these factors in lightof the evidence presented at trial. The written instruction, theoral instructions from the court, and the prosecution'sstatements in closing argument all mirror IPI Criminal 3d No.3.15 with two exceptions; the bracketed numbers were correctlyexcluded, but the bracketed "or" was included.

In this case, we first examine the alleged mistake ininstructing the jury to determine whether error occurred. If so,we then determine whether the jury instruction error rose to thelevel of plain error because the error was not properly preservedat trial. See People v. Herrett, 137 Ill. 2d 195, 210, 561N.E.2d 1 (1990). While one appellate court recently held thatthe inclusion of the bracketed "or" in IPI Criminal 3d No. 3.15in the instruction given to the jury is not error (People v.Tisley, 341 Ill. App. 3d 741, 793 N.E.2d 181 (2003)), thisholding fails to address the numerous cases holding the bracketed"or" in the jury instruction is designed solely for the guidanceof the court and counsel and including the bracketed "or" in theinstruction to the jury is error (Gonzalez, 326 Ill. App. 3d at639; People v. Smith, 341 Ill. App. 3d 530, 546, 794 N.E.2d 367(2003); People v. Saraceno, 341 Ill. App. 3d 108, 115-16, 791N.E.2d 1239 (2003); People v. Brookins, 333 Ill. App. 3d 1076,1083, 777 N.E.2d 676 (2002); People v. Mercado, 333 Ill. App. 3d994, 999, 777 N.E.2d 641 (2002); People v. Furdge, 332 Ill. App.3d 1019, 1032, 774 N.E.2d 415 (2002); People v. Waters, 328 Ill.App. 3d 117, 130-31, 764 N.E.2d 1194 (2002)). In keeping withthe view of the majority of the cases, we too hold that includingthe bracketed "or" when giving the jury IPI Criminal 3d No. 3.15is error.⁽²⁾

Having determined that the trial court erred in soinstructing the jury, the next question is whether the errorrises the level of plain error. Substantial defects in juryinstructions in criminal cases may be noticed despite failure tomake a timely objection thereto if the interests of justice sorequire. 177 Ill. 2d R. 451(c). The exception will be invokedto correct grave errors or in cases "so close factually thatfundamental fairness requires the jury be properly instructed." People v. Berry, 99 Ill. 2d 499, 505, 460 N.E.2d 742 (1984),citing People v. Huckstead, 91 Ill. 2d 536, 544, 440 N.E.2d 1248(1982).

The defendant relies solely on the recent case of Gonzalez,326 Ill. App. 3d 629, 761 N.E.2d 198, for his claim that plainerror occurred here. As the Gonzalez court premised its reversalon that case being factually close, the defendant likewiseasserts that "the evidence against him was not overwhelming."⁽³⁾ We disagree. The victim gave an accurate description of theoffender that robbed him at the point of a sawed-off shotgun andstole his car. The victim's immediate outcry included thelicense plate number of his car, which led to the apprehension ofthe defendant 15 to 20 minutes after the crime. The defendantwas seen driving the stolen car by four officers, two of whom sawthe defendant toss a shotgun out the car window as he fled in thestolen car. The mask, identified by the victim as worn by therobber, was recovered from the jacket the defendant was wearingat the time of his arrest. The sawed-off shotgun, discarded bythe defendant from the stolen car, was also identified as the oneused to commit the crimes. The defendant was identified by thevictim by his appearance as the offender. The victim's car hadtwo rifles and ammunition not owned by the victim but consistentwith the defendant's admissions that he was attempting totransport weapons to another location. Finally, the defendantadmitted to the crimes three separate times. Not only was theevidence not "close," we find the evidence overwhelming evenapart from the defendant's admissions. See Berry, 99 Ill. 2d at505 (the evidence must be so factually close that fundamentalfairness requires the jury be properly instructed).

Additionally, we find no serious claim that the defendantwas denied a fair trial based on the giving of the instructionwhich in only the strictest sense was incorrect. Even though theprosecutor included the bracketed "or" when discussing IPICriminal 3d No. 3.15 in closing arguments, the prosecutor here,unlike in Gonzalez, did not draw undue attention to the term "or"in the instructions. Instead, the prosecutor started by tellingthe jury to consider all relevant identification factors andfinished by correctly arguing to the jury that it was to considerall five of the factors in evaluating the eyewitness's testimony. Given that the evidence was not closely balanced, that theprosecution argued all five factors as supported by the evidence,and that neither the judge nor the prosecution drew undueattention to the term "or," the defendant cannot show that he wasprejudiced by the erroneous instruction and this court cannotfind that the result of the proceedings would have been differenthad the jury been given a proper instruction. See Mercado, 333Ill. App. 3d at 1000. Because we find the error "not to rise tothe level of a plain error[,] *** the procedural default must behonored." People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901(1995). We therefore find the issue forfeited.

V. Rifles and Ammunition

Prior to trial, the defense moved to exclude testimonyregarding the rifles and ammunition recovered from the victim'scar claiming this evidence was overly prejudicial because therifles were not used in the robbery and the ammunition wasunsuitable for the gun that was used. The State argued thisevidence was admissible to corroborate the defendant's statementthat he hijacked the car to transport the weapons and to rebutthe defendant's argument that he was never inside the victim'scar. The trial court denied the defendant's motion finding therifles and ammunition probative. However, the trial court didnot allow the State to introduce the defendant's statement thathe was going to trade these guns for drugs. At trial, as part ofthe details of the arrest, the State elicited testimony that therifles were in firing condition and were loaded. The trial courtoverruled the defendant's objection that this testimony wasirrelevant. During deliberations, the two rifles and the box ofammunition were allowed to go back to the jury room.

The defendant's claim of error regarding the rifles andammunition is twofold: the trial court erred in (1) admittingevidence regarding the rifles and ammunition, and (2) the trialcourt erred in allowing the guns and ammunition to go back to thejury room during deliberations.

Both the admission of other crimes evidence and the decisionto allow exhibits to be taken to the jury room are reviewed foran abuse of discretion. People v. Babiarz, 271 Ill. App. 3d 153,159, 648 N.E.2d 137 (1995). "When the trial court finds somerelevance in the other crimes evidence, it must then conduct abalancing test. Relevant evidence should be excluded if itsprobative value is substantially outweighed by the danger ofunfair prejudice." People v. Jones, 328 Ill. App. 3d 233, 238,764 N.E.2d 1232 (2002), People v. Stewart, 105 Ill. 2d 22, 62,473 N.E.2d 840 (1984). A trial court's decision to allowexhibits to be taken to the jury room will not be reversed"unless there is an abuse of discretion to the prejudice of thedefendant." People v. McDonald, 329 Ill. App. 3d 938, 948, 769N.E.2d 1008 (2002).

"The general rule is that weapons are admissible if connected to both the defendant and the crime." Babiarz, 271Ill. App. 3d at 159. In cases where the weapon used in theoffense is not recovered but a weapon is seized from thedefendant and suitable for commission of the charged offense, thecases generally hold that a sufficient connection is present. Asthe State correctly notes in its brief, in cases where the weaponis clearly established or conceded by the State not to be theweapon used in the charged offense, we have acknowledged that thecase law reflects "some inconsistency" in assessing whether theadmission of such a weapon is reversible error. People v. Brown,100 Ill. App. 3d 57, 69, 426 N.E.2d 575 (1981), cf. People v.Wade, 51 Ill. App. 3d 721, 729, 366 N.E.2d 528 (1977).

Under the facts of this case, we have no difficulry findinga sufficient connection to both the defendant and the crimes toconclude that the weapons were properly admitted. The presenceof rifles and ammunition in the stolen car corroborated thedefendant's statement to the investigating detective, repeated toASA Roth, that he hijacked the car to transport the weapons. Therifles and ammunition were also connected to the crimes ofvehicular hijacking and armed robbery in that the weapons wererecovered in the stolen car within 20 minutes after the hijackingand the owner of the car denied any connection to them. SeePeople v. Dinwiddie, 299 Ill. App. 3d 636, 643, 702 N.E.2d 181(1998) (handgun connected to the crime where, although not usedin the shooting, it corroborated the defendant's statement andwas recovered from the car the defendant was in at the time ofthe shooting.) If the defendant was not the armed robber andhijacker, then there was no evidentiary connection between thedefendant and the recovered rifles and ammunition as the weaponswere recovered in the stolen car, the proceeds of the armedrobbery itself.

Because we can find no error in admitting the weapons andammunition, we find no prejudice to the defendant in allowing theexhibits to be taken to the jury room during deliberations. SeeMcDonald, 329 Ill. App. 3d 938. The defendant's claim of errorbased on the admission of the rifles and ammunition is rejected.

VI. The Defendant's Sentence

The material in this section is not publishable underSupreme Court Rule 23.

[Nonpublishable material removed here]

CONCLUSION

For the foregoing reasons, we affirm the defendant'sconvictions and sentences.

Affirmed.

WOLFSON, P.J., and BURKE, J., concur.

1. It would be of assistance on review if the ruling below had beenexpressly made. See People v. Traylor, 331 Ill. App. 3d 464,468, 771 N.E.2d 629 (2002) (where the trial court made an expressfinding that the defendant was injured while in police custodytriggering the heightened burden of proof on the part of theState). But compare People v. Case, 218 Ill. App. 3d 146, 155, 577 N.E.2d 1291 (1991) (where the reviewing court held that thetrial court did not abuse its discretion in determining that itwas not "clearly established" that the injuries suffered by thedefendant occurred while in police custody).

2. In declining to follow Tisley's approach to find no error inthe instruction given in this case, we remain mindful of theconcerns expressed in Gonzalez. In any given witnessidentification case not every factor listed in the instructionmay have relevance as determined by the evidence. In a givencase, to insert an identification factor that has no applicationas determined by the evidence may indeed confuse a jury. Or,every factor listed in the instruction may specifically apply,such as where the prosecution's "case [is] based solely oncircumstantial evidence through the identification testimony" ofthe eyewitnesses. Gonzalez, 326 Ill. App. 3d at 635. In such acase, to suggest that any one of the factors may be sufficient toweigh the identification testimony may undermine the requiredshowing of proof beyond a reasonable doubt. Gonzalez stands forsuch a case.

We are also mindful of the simple steps that can be taken toavoid this issue on appeal. It is a simple matter for the Stateto eliminate the bracketed "or" just as it does the bracketed"numbers" in the "clean" instruction to be given to the jury. Defense counsel as well must give serious thought to theidentification instruction (as with all other instructions) toensure that the jury is properly guided in assessing the evidenceagainst the defendant. The trial court, of course, bearsultimate responsibility in instructing the jury and should ensurethat each instruction conforms to the IPI and aids the jury inresolving the ultimate issue of the presence or absence ofreasonable doubt. The correct instruction is set out in Gonzalezand, as Gonzalez notes, in Illinois Pattern Jury Instructions,Criminal, Sample Set 27.02, No. 3.15 (4th ed. 2000). In ourjudgment, this issue comes before us (unnecessarily) too often.

3. There is a real question whether the defendant's claim that theevidence against him was "not overwhelming" is equivalent to the"factually close" standard required by the caselaw. See Peoplev. Nieves, 192 Ill. 2d 487, 502-03, 737 N.E.2d 150 (2000). Wenonetheless address the defendant's claim.