Appeal from the Circuit Court of Cook County. No.98 CR 1704 The Honorable Joseph Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
Following a jury trial, the defendant, Heliberto Carrero, was found guilty of aggravated vehicular hijacking in violation of section 18-4(a)(3) of the Criminal Code of 1961 (720 ILCS 5/18-4(a)(3) (West 1998)), armed robbery in violation of section 18-2(a) (720 ILCS 5/ 18-2(a) (West 1998)), and two counts of unlawful use of a weapon (possessing a shotgun with a barrel of less than 18 inches and possessing a firearm while masked) in violation of sections 24-1(a)(7)(ii) and 24-1(a)(9) (720 ILCS 5/24-1(a)(7)(ii), (a)(9) (West 1998)). The defendant was sentenced to 25 years' imprisonment for aggravated vehicular hijacking and armed robbery. A single conviction was entered on the two counts of unlawful use of a weapon and the defendant was sentenced to five years' imprisonment. The sentences were ordered to be served concurrently.
On appeal, the defendant contends: (1) his confession was coerced; (2) the trial court erred in allowing evidence of the defendant's prior unprosecuted arrest at sentencing; (3) the show-up identification was unnecessarily suggestive and unreliable; (4) use of the term "or" in the jury instruction concerning circumstances of identification (Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992) (IPI Criminal 3d No. 3.15)), misstated the law and denied him a fair trial; (5) the trial court erred in permitting testimony about weapons and ammunition that were not connected to the charged offenses; and (6) the 25-year prison sentence was excessive in light of the mitigating factors.
For the following reasons, we affirm the defendant's convictions and sentences.
The defendant was found guilty of the above offenses stemming from a January 6, 1998, incident in which the victim, Ahmed Meraj, was robbed at gunpoint and his car stolen. The victim was in a hardware store parking lot, walking toward the store, when he heard someone say, "Excuse me. Excuse me, I'm talking to you." When the victim turned around, the person speaking was wearing a ski mask and pointing a shotgun at him. The masked person demanded money and the victim's car keys. The victim complied and gave him $1 and the keys to his 1992 gray Toyota Corolla. The robber warned the victim if he moved, the robber would shoot him. As the robber was leaving, he told the victim not to tell anyone and that the victim could pick his car up 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 arrived at the hardware store. The victim described the robber as 6 feet tall, 180 pounds, wearing blue jeans and a black stocking cap. The victim was not entirely sure of the color of the robber's jacket, but described it as brown. Because of the mask, the victim was not able to provide the robber's eye color, hair color, or complexion.
While the victim was with Officers Ritter and Santiago, Officers Joseph Giambrone and Adam Henkels were patrolling the area in a marked squad car when they received a bulletin regarding the robbery, which included a description of the car and its license plate number. On their patrol they saw a vehicle matching the description of the stolen car. As the officers approached the car, the driver, identified at trial as the defendant, backed up the car toward the officers and drove off in reverse. The police pursued. Officers Robert Braun and Larry Guy joined the chase. During the pursuit, Officers Giambrone and Henkels saw the defendant throw a sawed-off shotgun out of the car.
Eventually, the defendant stopped the car, jumped out, and ran. The officers gave chase. As Officer Giambrone ran past the stolen car, he made a cursory search for individuals and saw a black bag in the rear seat. Officer Braun, after securing the police vehicles, entered the stolen car to turn off its engine. At that time, he too saw the black bag and noticed a rifle barrel sticking out of the bag. When Officer Braun opened the bag, he discovered two long-barreled rifles inside, along with ammunition. The rifles were loaded.
The officers eventually caught the defendant. Officer Henkels grabbed him first and the two fell to the ground in a gangway with the defendant under Officer Henkels. The defendant continued to struggle with the officers until they were able to handcuff him and get him to his feet. The officers recovered a blue ski mask from inside the defendant's brown jacket. Officer Giambrone informed the defendant of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) and radioed that they had the suspect in custody. This was 15 to 20 minutes after the car was initially stolen. Officers Ritter and Santiago, after hearing over the police radio that a suspect in the robbery had been apprehended, transported the victim to where the arresting officers were holding the suspect. At the show-up, the police asked the victim if the detained individual (the defendant) was the person who robbed him. The victim stated that the defendant looked like the same man in terms of build and clothes. At the time of arrest the defendant was wearing a tan or brown jacket and jeans.
At the show-up, the defendant was the only person the police asked the victim to view. According to Officer Giambrone, at the time of the show-up the defendant was handcuffed and a police officer detained the defendant by one hand and held a mask in the other. Additionally, according to Officers Henkels and Ritter, a flashlight illuminated the defendant for the victim to see.
At the police station, the victim was shown the rifles and ammunition found in the black bag in the recovered car. The victim stated he had never seen the rifles or ammunition before. The victim was also shown the recovered sawed-off shotgun the defendant threw out of the car during the chase. The victim identified the gun as the one used in the robbery.
While in custody, the defendant made three inculpatory statements. The first occurred while he was being fingerprinted. The defendant told Officer Guy, "[y]ou know, I never shot that guy. I just robbed him with the gun and took his car." The second statement was during an interview conducted by Detective John Turney. Detective Turney introduced himself and advised the defendant of his constitutional rights. The defendant acknowledged his rights, then said he wanted to talk about his arrest. The defendant told Detective Turney that he wanted to get rid of some guns but his friend would not give him a ride so he decided to get a car. He went to the hardware store's parking lot, put on a ski mask, approached a man and asked for some money and the man's car keys. The defendant told the man he could pick up his car tomorrow from the same parking lot. The defendant then drove back to his friend's house to pick up the guns. Shortly after retrieving the guns, the defendant saw police officers pull up in a car next to him and he decided he had to get away. During his flight, the defendant threw the sawed-off shotgun out of the car because he was afraid that if he was found in possession of it, the "feds" would get involved. The final statement occurred during the interview of the defendant by Assistant State's Attorney Sara Roth. The defendant repeated what he had stated to Detective Turney to ASA Roth in the presence of Detective Turney.
Prior to trial, the defense moved to suppress the defendant's statements, claiming his confession was coerced by Officer Michael Rice, who the defendant claimed was the arresting officer. The defense also moved to suppress the show-up identification and exclude testimony regarding the recovered rifles and ammunition. The trial court ruled the confession was voluntary and the identification was proper. Regarding the rifles and ammunition, the court permitted testimony that the defendant claimed ownership of the items but disallowed testimony that he wanted to trade them for drugs.
At sentencing, the State introduced evidence of a prior, unprosecuted arrest for murder. The defense objected and, at least initially, the trial court sustained the defendant's objection. The State argued that the unprosecuted arrest for murder was proper aggravation under the caselaw provided to the trial court. The trial judge ultimately allowed the evidence, although he stated that the sentences imposed were warranted ...