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THIRD DIVISION

September 25, 2002

JUSTICE WOLFSON delivered the opinion of the court:

In general, the Illinois Supreme Court Committee on PatternJury Instructions in Criminal Cases takes the position that aninstruction on particular types of evidence should not be givenunless 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 forthe jury. Then, the jury is told to consider specificcircumstances of identification. This case concerns use of theword "or" between each of the circumstances contained in theinstruction.

Following a jury trial, defendant Hector Mercado wasconvicted of first degree murder, armed robbery, and homeinvasion, and sentenced to 92 years in prison for murder andconcurrent sentences of 30 years each for the other twooffenses.⁽¹⁾ Defendant appeals his convictions, contending: (1)the trial court misstated the law in its instruction to the jurywith respect to evaluating eyewitness identification testimony;(2) the trial court erred in admitting into evidence gruesomephotographs which lacked probative value; (3) his extended-termsentence 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 thedeceased into its sentencing determination. We affirm.

FACTS

The State's evidence established defendant and co-defendantAudrey Ann Klimawicze lived in the third-floor apartment directlyabove the apartment where co-defendant's mother, Audrey VirginiaKlimawicze, lived. On the night of July 31, 1997, they brokeinto Klimawicze's apartment and killed her by stabbing andstrangling her. They took money from the apartment and used itto buy drugs. They later attempted to dispose of the victim'sbody by placing it in a garbage can in the alley and setting thecan on fire.

At trial, Bonnie Gentile, co-defendant's stepsister and thevictim's daughter, testified that she returned home from theweekend on August 2, 1997, and found her mother's apartment indisarray. The back door was ajar, all the white dish rags weremissing from the kitchen, and birthday and Christmas cards whereher mother kept money were strewn about on the floor.

Joseph Gioia, the victim's neighbor, testified that on themorning of August 2, 1997, he saw a smoldering garbage can in thealley and later saw flames coming out. He called 911, and thefiremen put out the fire. The next morning, Gioia observed ahuman foot and part of a leg in the garbage can. Gioiaidentified People's Exhibit No. 26 as a photograph of the bodythat he saw in the garbage can. Constance Cook, anotherneighbor, testified that on August 1, 1997, she was standing onher back porch and saw defendant pushing a heavy garbage can downthe alley. She later gave a description of defendant to thepolice and identified defendant in a lineup at the policestation.

Chicago Police Detective Joseph Danzl testified that onAugust 2, 1997, he arrived in the alley in response to Gioia's911 call and saw an unidentified woman's buttocks, legs, andburned feet sticking out of a partially burned garbage can. Thevictim's head was wrapped in a white towel, and a green rug wasinside the can. Detective Danzl identified People's Exhibit No.26 as a photograph depicting the victim's body in the garbagecan. He identified People's Exhibit No. 38 as a photographdepicting the victim's remains, a green rug, part of the garbagecan, 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 defendantswalking down the street on August 2, 1997, and asked them toidentify a photograph of the victim. Both defendants denied thatthey recognized the person.

Dr. Joseph Cogan, a medical examiner, testified that heperformed an autopsy on the victim, and he determined the causeof death was multiple injuries, including multiple stab wounds,slash wounds, blunt force injury, and strangulation. The burnson the victim's body were sustained post-mortem.

Police Officer Thomas Ginnelly processed the victim'sapartment and found blood samples determined to be consistentwith the victim's DNA and fingerprints on the kitchen tabledetermined to be those of co-defendant.

On August 3, 1997, defendant made several statements topolice. 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 andgotten a homeless man to put her body in the garbage. Defendantsaid he moved the garbage can down the alley but denied settingit on fire. Defendant later repeated the story, then gave athird account of what happened. He said on July 31, co-defendantwas talking about killing her mother. They went to her mother'sapartment. Defendant saw co-defendant kick the victim and stabher several times. They then took money from the apartment andwent to buy heroin. The next day, they put the victim's bodyinto a garbage can. Defendant denied setting it on fire.

Defendant's final statement to police was memorialized intoa handwritten statement, signed by defendant, and published attrial. In that statement, defendant said co-defendant asked himto help her kill her mother. Co-defendant grabbed a long blackcord and went downstairs to her mother's apartment. Defendantfollowed. He saw co-defendant arguing with her mother. Co-defendant then kicked the victim and forced her into theapartment. Co-defendant wrapped the black cord around thevictim's neck and choked her. She told defendant to stab thevictim. Defendant said, "I'm sorry, lady," and stabbed thevictim three times with his hunting knife. They took money fromthe apartment and left to buy heroin and cocaine. When theyreturned, the victim was still gasping and bleeding on the floor. Defendant put the knife, cord, and other items into a plastic bagand threw them in a dumpster. The next day, they placed thevictim's body and the rug she had been lying on inside a garbagecan and pushed it into the alley. Late that night, they pouredterpentine over the can and lit it on fire.

Joe Martinez, a cabdriver, testified for the defense. Hesaid he picked up both defendants and co-defendant's daughter onAugust 2, 1997. In the cab, co-defendant stated she had stabbedher 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 ownbehalf and denied any participation in the murder. He said co-defendant told him she killed her mother, but he did not believeher. He denied ever reading the handwritten statementmemorializing his confession.

During the jury instructions conference, the State requestedthe jury be given an instruction on the factors to consider inweighing 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 theconnector "or" between the five factors to be considered. Theinstruction reads:

"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.

[or]

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

[or]

[3] The witness's earlier description of theoffender.

[or]

[4] The level of certainty shown by thewitness when confronting the defendant.

[or]

[5] The length of time between the offenseand the identification confrontation." Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992) (hereinafter IPICriminal 3d).

Defense counsel did not object to the instructionbeing given.

After closing arguments and deliberations, the jury founddefendant guilty of first degree murder, home invasion, andaggravated robbery. The trial court determined defendant waseligible for the death penalty. At sentencing, the courtdeclined to impose the death penalty but found defendantqualified for an extended-term sentence based on the brutal andheinous nature of defendant's conduct. 730 ILCS 5/5-5-3.2(b)(2)(West 2000).

Defendant was sentenced to 92 years' imprisonment for firstdegree murder and concurrent sentences of 30 years each for homeinvasion and aggravated robbery. In sentencing defendant, thetrial judge said, "I was looking at the age of [the victim]figuring that in some way. But I don't believe 62 years isenough at this point. I believe a sentence as to the murdercharge would be 92 years as to both of you. As to the armedrobbery and home invasion, there will be a concurrent term of 30years each."

DECISION

I. JURY INSTRUCTION

Defendant first contends the trial court misstated the lawin its instruction to the jury regarding evaluating eyewitnessopinion testimony. One of the instructions given to the jury,submitted as State's Instruction No. 11, differed from IPICriminal 3d No. 3.15 in that it included the connector "or" inbetween the five factors to be considered. However, the firstsentence of the instruction as well as all of the applicablecases clearly state that all five factors are to be consideredand 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. 3.15instructs the user to only "give numbered paragraphs that aresupported by the evidence," and "[t]he bracketed numbers arepresent solely for the guidance of court and counsel and shouldnot be included in the instruction submitted to the jury." Weagree with defendant that the word "or" placed in brackets wasalso designed solely for the guidance of the court and counseland not to be included in the instruction to the jury. Defendantcontends the instruction as given is contradictory, confusing,and misstates the law, because it instructs the jury to considerall of the factors and then tells the jury it need only considerany one of the factors.

Defendant's failure to object to this instruction at trialor raise the issue in a post trial motion amounts to a waiver ofthe issue. Even if the issue is not waived, we find the error inthe jury instruction was harmless in light of the evidencepresented at trial in favor of conviction. A jury instructionerror is harmless if the result of the trial would not have beendifferent if a proper instruction had been given. People v.Kirchner, 194 Ill. 2d 502, 557, 743 N.E.2d 94 (2000). Based onthe record, we find that any error in the jury instructions washarmless beyond a reasonable doubt.

Defendant relies on Gonzalez, 326 Ill. App. 3d at 635, wherethis court, in considering this issue, held the jury instructionmisstated the law and denied the defendant a fair trial. TheGonzalez court further found the evidence was "closely balanced,"as the State's case was based entirely on circumstantial evidencethrough identification testimony of two witnesses. Gonzalez, 326Ill. App. 3d at 635.

This case is distinguishable, as the evidence was not"closely balanced," but was overwhelmingly in favor ofconviction. At trial, the State introduced into evidence theeyewitness testimony of Constance Cook, who saw defendant pushinga "very heavy" garbage can down the alley the day after themurder. Most damaging was defendant's signed confessiondescribing in detail how he and co-defendant killed the victimand disposed of the body. His statement was corroborated by thephysical evidence.

The court in Gonzalez also noted comments by the prosecutorto the jury reinforced the trial court's error by specificallydrawing the jury's attention to the use of the term "or" betweeneach of the factors. Gonzalez, 326 Ill. App. 3d at 640-41. Inthis case, the prosecutor correctly argued to the jury in closingthat they were to consider all five of the factors in evaluatingeyewitness testimony. Unlike Gonzalez, the evidence in this casewas not closely balanced, and the prosecutor correctly explainedthe instruction. We find the outcome of the case would not havebeen different had the jury been given a proper instruction.

II. ADMISSION OF PHOTOGRAPHS

Defendant next contends the trial court's admission intoevidence of photographs of the victim's face and charred bodydeprived him of a fair trial because they lacked probative valueand inflamed the jury against defendant. Specifically defendantobjects to People's Exhibit No. 26, showing the garbage can inthe alley with the victim's legs and feet sticking out, No. 38,showing the state of the victim's body as it appeared in themedical examiner's office, and No. 39, showing a close-up of thevictim's face.

The decision to admit photographs into evidence is withinthe discretion of the trial court, and the court's decision willnot be overturned absent an abuse of that discretion. People v.Rissley, 165 Ill. 2d 364, 403, 651 N.E.2d 133 (1995). If thephotographic evidence is relevant to prove facts at issue, it isadmissible and can be shown to the jury, so long as it is not soinflammatory or prejudicial that it substantially outweighs itsprobative value. People v. Benford, 295 Ill. App. 3d 695, 698,692 N.E.2d 1285 (1998). Such photographs are admissible despitethe 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, amongother things, the nature and extent of injuries and the forceneeded to inflict them; the position, condition, and location ofthe body; the manner and cause of death; to corroborate adefendant's confession; and to aid in understanding the testimonyof 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 photographsmay be cumulative of the testimony of a witness who described thecondition and location of the body, they also may aid jurors inunderstanding this testimony. People v. Jones, 236 Ill. App. 3d244, 249, 603 N.E.2d 619 (1992).

We agree with the State that the photographs to whichdefendant objects were relevant to show the position, condition,and location of the victim's body, and to corroborate thetestimony of Dr. Cogan, Bonnie Gentile, and Joseph Gioia. Notonly do they depict the victim's remains, but they also show thewhite towels and green rug disposed of with the body. Additionally, they corroborate the details of defendant'sconfession. We see no abuse of discretion in the court'sdecision to admit them or to allow the jury to see them, althoughwe see little value and some detriment in the jury havingPeople's Exhibit No. 39.

III. APPRENDI

Next, defendant contends section 5-5-3.2(b)(2) of theUnified Code of Corrections (730 ILCS 5/5-5-3.2(b)(2) (West2000)), which provides for extended-term sentencing based on afinding of brutal and heinous conduct by defendant, isunconstitutional 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-termsentence violated his rights to due process of law and trial byjury because it subjected him to an increased penalty withoutrequiring notice in the charging instrument or a jury findingthat he qualified for the sentence beyond a reasonable doubt. InApprendi, the United States Supreme Court held that "other thanthe fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe 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. at2362-63.

The exact issues raised by defendant were recently rejectedby our supreme court in People v. Ford, 198 Ill. 2d 68, 761N.E.2d 735 (2001). In Ford, the trial court found the defendanteligible for the death penalty but instead imposed an extended-term sentence of 100 years based upon its finding that the murderwas accompanied by brutal or heinous behavior indicative ofwanton cruelty. The supreme court noted that after defendant wasfound eligible for the death penalty, death was the prescribedstatutory maximum sentence. Ford, 198 Ill. 2d at 73-74. Therefore, because the maximum sentence was death and thesentence actually imposed was 100 years, the extended-termsentence clearly complied with the rule announced in Apprendi. Ford, 198 Ill. 2d at 73. We follow Ford and reject defendant'sargument. In this case, defendant was found eligible for thedeath penalty. Defendant's 92-year extended-term sentence forfirst degree murder complies with Apprendi because it does notincrease the penalty beyond the prescribed statutory maximum.

IV. SENTENCING FACTORS

Finally, defendant contends he was deprived of a fairsentencing hearing where the trial court factored the age of thevictim into its determination, although that factor does notreflect the seriousness of the offense or his rehabilitativepotential. He contends the court explicitly relied upon animproper factor at sentencing by adding 30 years to 62, the ageof the deceased, in order to arrive at the imposed 92-yearsentence. Defendant argued in a post-sentencing motion that hissentence was excessive, but he failed to claim the court used animproper 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 forappeal; however, he contends we should apply the plain errordoctrine in reviewing his sentence. The plain error rule allowsfor appellate review in criminal cases even though a defendanthas not properly preserved an error for review, where theevidence is closely balanced or where the error adverselyaffected the defendant's right to a fair trial. People v.Mullen, 141 Ill. 2d 394, 401-02, 566 N.E.2d 222 (1990). Thiscase fits neither category. We will not consider the issue.

CONCLUSION

We affirm the decision and rulings of the trial court.

Affirmed.

SOUTH, P.J., and HOFFMAN, J., concur.

1. Defendant and co-defendant Audrey Ann Klimawicze were triedby simultaneous but separate juries. Both were found guilty offirst degree murder, armed robbery, and home invasion, and bothreceived the same sentences.