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People v. Mercado

September 25, 2002


Appeal from the Circuit Court of Cook County. Honorable James D. Egan, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson


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. *fn1 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 ...

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