{ "id": 1026017, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BONZELL LAMAR JOYNER, Defendant-Appellant", "name_abbreviation": "People v. Joyner", "decision_date": "2000-11-08", "docket_number": "No. 2-99-0433", "first_page": "93", "last_page": "111", "citations": [ { "type": "official", "cite": "317 Ill. App. 3d 93" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "136 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3254687 ], "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0496-01" ] }, { "cite": "321 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132408 ], "year": 2001, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0707-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 12, "year": 2000, "pin_cites": [ { "page": "468-69" }, { "page": "442" }, { "page": "2351" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "494" }, { "page": "457" }, { "page": "2365" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "193 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963704 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "37" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0001-01" ] }, { "cite": "118 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660750 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1064-01" ] }, { "cite": "131 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436205 ], "year": 1985, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0128-01" ] }, { "cite": "143 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591083 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "134" }, { "page": "134" }, { "page": "134-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0082-01" ] }, { "cite": "286 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544410 ], "year": 1997, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0155-01" ] }, { "cite": "166 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198914 ], "year": 1995, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0414-01" ] }, { "cite": "313 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186572 ], "year": 2000, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0051-01" ] }, { "cite": "151 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291911 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "482" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0461-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "237 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5163318 ], "year": 1992, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0712-01" ] }, { "cite": "314 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140228 ], "year": 2000, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0506-01" ] }, { "cite": "187 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131046 ], "year": 1999, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0091-01" ] }, { "cite": "256 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385137 ], "year": 1994, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0536-01" ] }, { "cite": "184 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926989 ], "year": 1998, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0058-01" ] }, { "cite": "313 Ill. App. 3d 82", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186511 ], "year": 2000, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0082-01" ] }, { "cite": "165 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483560 ], "year": 1995, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0305-01" ] }, { "cite": "189 Ill. 2d 254", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224780 ], "year": 2000, "pin_cites": [ { "page": "265-66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0254-01" ] } ], "analysis": { "cardinality": 1414, "char_count": 42065, "ocr_confidence": 0.752, "pagerank": { "raw": 3.0905857867463545e-07, "percentile": 0.8586145369865192 }, "sha256": "2e0903f40b851b66d931c21dc6eba5f494d96d2e34ac91d974ce0492eb8bc7cd", "simhash": "1:ed7c73287b6d9f5b", "word_count": 7001 }, "last_updated": "2023-07-14T15:16:30.528913+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BONZELL LAMAR JOYNER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RAPP\ndelivered the opinion of the court:\nA jury in the circuit court of Kane County convicted defendant, Bonzell Lamar Joyner, of the murder of Armando Mendez. The trial court sentenced defendant to natural life imprisonment. Defendant appeals, raising the following contentions: (1) that the State failed to prove him guilty beyond a reasonable doubt; (2) that prosecutorial misconduct deprived him of a fair trial; (3) that he was deprived of the assistance of counsel at proceedings on posttrial motions; and (4) that the trial court erred in sentencing him to natural life imprisonment. We affirm the conviction but modify the sentence.\nI. FACTS\nDefendant was charged with first-degree murder (720 ILCS 5/9\u2014 1(a) (West 1994)) for the October 27, 1994, shooting death of Armando Mendez. The State sought the death penalty. Prior to trial, defendant waived his right to a sentencing hearing before a jury. A jury trial was held in April 1997.\nThe record indicates that shortly after 10:50 p.m. on October 27, 1994, Aurora police responded to a shooting at Harper\u2019s gas station located at 1116 East New York Street, Aurora. Harper\u2019s consists of a lighted canopy over several gas pumps and a small building with a window through which business is conducted. Officers found the victim lying in front of the building with a large pool of blood around his head. The victim\u2019s 1979 Cadillac was located one-half block east of Harper\u2019s on East New York Street. The vehicle\u2019s hazard lights were on, and a gas can was sticking out of the gas fill located under the rear license plate.\nIsrael Ramos testified that on the night in question he was driving on East New York Street with his friend Jaime Juarez when he saw a vehicle stalled and a group of men fighting. Israel pulled into Harper\u2019s and saw a few black men beating a Hispanic man. The black men hit the Hispanic man across the back with a garbage can. During the beating, the Hispanic man tried to cover himself and get to the gas station attendant\u2019s window.\nIsrael further testified that a blue Chevrolet automobile pulled up. A person wearing a black \u201choodie\u201d and some sort of sports jacket walked in front of Israel\u2019s car holding his hand at his waist. The hood was tied tightly around the man\u2019s head so that his face could not be seen. The hooded man then walked up behind the victim, pointed a gun at the back of his head, and fired once. The shooter walked back toward the blue Chevrolet, and the man who was driving the blue Chevrolet told the shooter not to get in the vehicle. The shooter attempted to lift the door handles on the passenger side, but the doors were locked. The blue Chevrolet left the scene, and the shooter ran away.\nJaime Juarez testified that he was a passenger in Israel Ramos\u2019s car on the night in question. Jaime saw a Hispanic male at Harper\u2019s who was running from four or five black males. The Hispanic man was trying to get into the building. The black males were taking turns punching and kicking the Hispanic man and bouncing a garbage can off his body. As Israel pulled into Harper\u2019s, other vehicles pulled up, including a blue Chevrolet. One of the black males who was in the group beating the Hispanic man walked toward the blue Chevrolet, reached into the front passenger window, and then walked back toward the victim. The black male walked up to the Hispanic man, put a gun to his head, and fired. The shooter then walked back to the blue Chevrolet and lifted up on the door handles, but could not get into the vehicle. The blue Chevrolet pulled out of Harper\u2019s and the shooter ran.\nJaime said that the shooter was very thin and not tall. The shooter was wearing black pants and a pullover black and blue \u201choodie\u201d with a Georgetown bulldog emblem. Jaime also remembered someone wearing a red and black flannel shirt among those beating the victim.\nTracy Parish testified that she was working at Harper\u2019s on the night in question. That night, a man came to the window and asked to borrow a gas can. Tracy told him that she could only sell him a gas can but that he should try the gas station west of Harper\u2019s. Tracy watched the man walk to the west, then shortly thereafter back to the east toward his disabled vehicle. Next, she saw three or four black men punching and throwing stones at the man near his disabled vehicle. The man would fall down, get back up, and they would knock him down again as he made his way toward Harper\u2019s. As the man got closer to the building, the black men picked up a garbage can and hit him over the head. One of the black men held the man up against the window of the building and pulled out a small shiny gun. Tracy dropped to her knees and heard a gunshot. Tracy described the shooter as a black male with high cheekbones, a wide forehead, and wearing a hood. Tracy did not identify defendant in court. However, the morning after the shooting, a police investigator showed her a photo lineup consisting of six photographs, including defendant. Tracy pointed to the picture of defendant and said that she was 70% sure he was the shooter because of his high cheekbones and wide forehead.\nOn cross-examination, Tracy said that she did not think the shooter was among the group of people who were beating the victim. Tracy specified that the shooter held the victim against the window, held the gun in his right hand, and placed the gun against the victim\u2019s temple. Tracy believed the shooter had a flannel shirt on over a hooded sweatshirt. She did not see any sports logos on the shooter\u2019s clothing.\nThe State called Keith Smith, a truck driver who lived in the neighborhood at the time of the shooting. Keith testified that as he drove home from work on the night in question he saw a car blocking the right lane of East New York Street and five black men beating a Hispanic man. The Hispanic man ran toward Harper\u2019s and a couple of the black men chased him. The Hispanic man appeared to knock on the booth in an attempt to get some assistance.\nKeith pulled into Harper\u2019s with his headlights shining on the beating. The black men picked up a garbage can and used it to beat the Hispanic man over the back. When the victim was lying on the ground, the black men kicked him several times.\nKeith saw one of the shorter black individuals walk away from the beating out of his line of sight. A few moments later, the man returned and raised his right arm to the victim\u2019s head. Keith heard a loud noise, and the victim collapsed. The shooter looked at the victim and then turned and looked around.\nAt this point in Keith\u2019s testimony the following exchange took place:\n\u201cQ. And when he looked around, did you have occasion then to see him?\nA. Yes, I did.\nQ. Can you describe what you saw for us?\nA. Urn, it was just a look on his face, um, maybe pride, satisfaction, whatever.\n[Defense Attorney]: Objection, Your Honor, move to strike.\nTHE COURT: Sustained. You\u2019re instructed to disregard. Proceed.\u201d\nKeith saw the shooter from about 12 to 15 feet away. Keith made an in-court identification of defendant as the shooter.\nKeith further testified that the shooter went to a blue Chevrolet and attempted to open the front passenger door, but the occupants would not let him into the vehicle. The blue Chevrolet drove away, and the shooter ran.\nKeith testified that he had seen the individuals involved in the incident, including defendant, around the neighborhood almost on a daily basis. In 1994, it was not unusual to come home and find defendant sitting on his front step. Keith explained that the individuals involved in the beating were all wearing dark-colored clothing and that one of the individuals wore a plaid jacket. Keith identified the individual with the plaid jacket as Priest Pryor.\nOn cross-examination, Keith stated that he was never asked to identify the shooter or anyone else involved in the incident prior to trial. On the night of the shooting, Keith told the police that he could identify the individuals involved if he saw them again and that he recognized the shooter, but he did not indicate that the shooter had sat on his front step in the past.\nNext, the State called Darryl Bailey, a member of the Gangster Disciples street gang, who was also charged with first-degree murder for his role in the Armando Mendez homicide. Darryl explained that he had entered into an agreement with the State to testify at the trial of defendant and other defendants involved in the crime. In exchange for his cooperation, Darryl would plead guilty to several unrelated charges and would be sentenced to 12 months in prison in one case and to 48 months\u2019 probation in another. The first-degree murder charge would be dismissed. Although not testified to at trial, the agreement indicates that the State would dismiss the first-degree murder charge upon Darryl\u2019s completion of the agreement because Darryl had been shot twice since he agreed to testify.\nDarryl stated that he knew defendant to be a member or associate of the Gangster Disciples. Darryl identified defendant in court. Darryl testified that defendant carried the rank of \u201cenforcer\u201d in the gang. The enforcer is responsible for administering punishments in the form of physical beatings to gang members who violated gang rules. Darryl\u2019s testimony concerning defendant\u2019s rank of enforcer was stricken, and the jury was instructed to disregard it because Darryl\u2019s knowledge of this fact was based upon hearsay.\nDarryl testified further that, on the evening in question, he was talking with a Gangster Disciple named Eric Mott when they noticed a Cadillac with tinted windows pull up on East New York Street. Darryl and Eric ran away because they thought someone was going to shoot. Next, Gangster Disciples Jason Foster, Patrick Kirkwood, and Gabe Robinson pulled up in Foster\u2019s car. Eric told them that there was a \u201cKing,\u201d meaning a member of the Latin Kings street gang, up on the corner. Darryl, Patrick Kirkwood, Eric Mott, Gabe Robinson, and Kevin Scott ran to the Cadillac, and Jason Foster drove away. When the Hispanic man came back to the car, Patrick Kirkwood asked him if he was a King and to \u201cthrow down the crown,\u201d meaning to invert the Latin King gang sign in disrespect, if he was not a King. The Hispanic man failed to make the gang sign so Patrick Kirkwood hit him in the face. The Hispanic man ran toward Harper\u2019s, and the Gangster Disciples chased him. Priest Pryor, another Gangster Disciple, pulled up in his blue Chevrolet, got out of the car, ran up, and hit the Hispanic man. The Gangster Disciples hit and kicked the Hispanic man and threw a garbage can at him. Darryl stated that he was not participating at that point; rather, he was yelling for them to stop before they killed the man. Next, Jason Foster\u2019s car pulled up, and defendant got out with a black gun. Darryl testified that he turned around, and he heard a gunshot as he ran away.\nOn cross-examination, Darryl admitted that he told the police that he would say whatever he needed to in order to stay out of jail. Darryl did not think that defendant was wearing a hood on the night in question.\nThe State also called Kevin Scott, who admitted he was a Gangster Disciple and was charged with first-degree murder for his role in the murder of Armando Mendez. Kevin entered into an agreement to testify at defendant\u2019s trial in exchange for the State\u2019s reduction of the first-degree murder charge to aggravated battery and mob action. Kevin testified that he knew defendant to be a Gangster Disciple and identified defendant in court. Kevin stated that Harper\u2019s and the area around it was in the \u201chood\u201d of the Gangster Disciples and that they had to \u201cbeat down\u201d any enemies, including Latin Kings, that entered their hood.\nKevin testified that, on the evening of the shooting, he was with Latrone and Patrick Kirkwood when they met up with Darryl Bailey and Eric Mott. At that point, Jason Foster\u2019s car pulled up and someone yelled \u201chey y\u2019all, there\u2019s a King up on New York Street.\u201d A few men got into Jason Foster\u2019s car while Kevin, Eric Mott, and Darryl Bailey walked to East New York Street. Kevin said that, when they got there, they saw the victim surrounded by Patrick Kirkwood, La-trone Kirkwood, and Gabe Robinson. Patrick Kirkwood said \u201cthrow down the crown.\u201d When the victim did not, Patrick Kirkwood punched him in the face. The victim ran toward Harper\u2019s. A blue Chevrolet pulled up and Priest Pryor and Taurus House got out. Priest Pryor and Taurus House ran up to the victim and began to punch and kick him. Kevin said that by the time he and the others got to the victim, Priest Pryor had the victim\u2019s face up against the cashier\u2019s window at Harper\u2019s. Everyone, including Darryl Bailey, was kicking, punching, and hitting the victim with a trash can. According to Kevin, Jason Foster\u2019s car pulled up, defendant got out and said \u201cget the f\u2014 out [of] the way, everybody move.\u201d Defendant reached back into Jason Foster\u2019s car and brought out a small black gun. Defendant covered his face, walked toward the victim and shot him once in the head. At that point, Jason Foster\u2019s car pulled out. Defendant tried to get into Priest Pryor\u2019s blue Chevrolet as it pulled away, but he could not so defendant ran away.\nOn cross-examination, Kevin admitted that he would lie to get out of trouble and that he initially told the police that he knew nothing about a shooting. When he heard the State was seeking the death penalty in his case, he told his lawyer to cut a deal.\nThe record indicates that the Aurora police stopped Priest Pryor\u2019s blue Chevrolet approximately one mile from Harper\u2019s around midnight on the night of the shooting. A handprint was located on the rear passenger window. Illinois State Police forensic scientist Joseph V. Am-brozich testified that the latent handprint from the blue Chevrolet matched the handprint on the printcard of defendant. Ambrozich acknowledged that he could not determine the age of the handprint.\nPhillip Nigel Robbin (Nigel) testified on defendant\u2019s behalf. Nigel said that defendant is a friend he has known for six or seven years. According to Nigel, he picked up defendant at about noon on October 27, 1994. They drove around until 10:30 or 11 p.m., when they went to an apartment. Tammy Stewart and her aunt were at the apartment. At about 12:30 or 1 a.m., he and Tammy took defendant home. Nigel stated that he and defendant were never at or near Harper\u2019s gas station on October 27, 1994.\nShalanda Stewart testified that she had been defendant\u2019s girlfriend from 1991 through 1994. Although she is not defendant\u2019s girlfriend anymore, she still loves him and considers him a friend. On October 27, 1994, at about 10:30 p.m., defendant came to her apartment with Nigel. Defendant was wearing maroon pants and a multicolored shirt. Defendant left her apartment around 11:30 p.m. with Tammy Stewart and Nigel.\nTammy Stewart and Annette Stewart also testified that defendant came to the apartment around 10 p.m. and that Tammy and Nigel took defendant home around midnight.\nDefendant testified on his own behalf. He stated that on October 27, 1994, a little after 10 p.m., he went to his girlfriend\u2019s apartment with Nigel. Shalanda Stewart, Annette Stewart, Tammy Stewart, and Lynette Stewart were at the apartment. Defendant testified that Nigel and Tammy Stewart took him home around midnight. Defendant said he was wearing a red, green, and white sweater and dark red pants that night.\nDefendant testified further that he was an associate of the Gangster Disciples. He knows a Gangster Disciple named Priest Pryor who owns a blue Chevrolet. Defendant stated that he was near that vehicle in Farnsworth Park sometime within the week prior to the shooting and, at that time, he specifically remembered touching the rear passenger window with his hand. Defendant knew Pryor, House, Scott, Bailey, Foster, Robinson, Mott, and the Kirkwoods and knew them to be Gangster Disciples, but he did not see any of them on October 27, 1994. Defendant testified that he was not at Harper\u2019s gas station between the hours of 10 p.m. and midnight on October 27, 1994, and that he did not shoot Armando Mendez.\nWhen defendant spoke to the police about the events of October 27, 1994, defendant said that he was with Shalanda and Annette Stewart but failed to mention the other names because he did not want to get them involved. Defendant admitted that he lied to the police when he told them that he took a cab to Shalanda\u2019s apartment. Defendant claimed that he did not want to involve Nigel because Nigel had been in trouble with the police.\nThe jury deliberated on the foregoing evidence and returned verdicts of guilty on four counts of first-degree murder. The trial court found that defendant qualified for the death penalty under section 9 \u2014 l(b)(ll) of the Criminal Code of 1961 (720 ILCS 5/9 \u2014 l(b)(ll) (West 1994)).\nDefendant filed a pro se motion to dismiss his court-appointed trial counsel alleging ineffective assistance of counsel, as well as various conflicts of interest that he claimed his trial counsel labored under. The motion prayed for a new trial. The trial court appointed attorney Jay Wiegman to represent defendant on the motion to dismiss counsel. Attorney Wiegman filed a motion to withdraw as appointed counsel stating that the allegations raised in defendant\u2019s pro se motion were without merit.\nNo evidence was presented at the proceeding on defendant\u2019s pro se motion. Instead, attorney Wiegman stated his findings. The trial court also heard from defendant\u2019s trial counsel, who explained certain , circumstances regarding defendant\u2019s allegations, and the State argued that defendant\u2019s motion should be denied. The trial court denied defendant\u2019s motion.\nSubsequently, defendant filed a pro se motion to reconsider the ruling that raised additional allegations of ineffective assistance of trial counsel. Attorney Wiegman determined that this motion was also without merit. Defendant argued his motion to the court, and his trial counsel explained the circumstances regarding defendant\u2019s allegations. The State argued that the motion should be denied. The trial court denied defendant\u2019s motion to reconsider.\nA posttrial motion for a new trial was denied. In sentencing defendant, the trial court found that two mitigating factors precluded imposition of the death penalty, namely, defendant\u2019s youth and his lack of significant criminal history. In finding defendant eligible for a term of natural life imprisonment, the trial court reiterated its finding that a death penalty eligibility factor was present and found further that the murder of Armando Mendez was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The trial court pronounced a sentence of natural life imprisonment. Defendant\u2019s motion to reconsider the sentence was denied. This timely appeal followed.\nII. DISCUSSION\nA. SUFFICIENCY OF THE EVIDENCE\nOn appeal, defendant first argues that his conviction should be reversed because the State failed to prove him guilty beyond a reasonable doubt. Defendant contends that the State failed to prove that he was the person who shot Armando Mendez because no physical evidence connected defendant to the murder; the State did not present evidence to refute defendant\u2019s alibi; and the eyewitness testimony was inconsistent, conflicting, and was given in part by two codefendants.\nThe relevant inquiry in reviewing the sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Perez, 189 Ill. 2d 254, 265-66 (2000). The identification of the accused by a single witness is sufficient to sustain a criminal conviction if the witness viewed the accused under circumstances allowing a positive identification. People v. Lewis, 165 Ill. 2d 305, 356 (1995).\nDefendant argues that Keith Smith\u2019s testimony cannot reasonably be accepted as reliable because his opportunity to observe was brief and there were IV2 years between the shooting and his identification of defendant at trial. We disagree. The length of time between the commission of the crime and the identification goes only to the weight to be given the testimony, which was a question for the jury to resolve. People v. Vasquez, 313 Ill. App. 3d 82, 103 (2000). The testimony of Keith Smith, when viewed in the light most favorable to the State, establishes that defendant shot the victim. Smith saw defendant from about 12 to 15 feet away, under ample lighting, and while paying a great deal of attention. We also note that Smith was familiar with defendant before the night of the shooting.\nDefendant argues that the testimony of Darryl Bailey and Kevin Scott should be viewed with skepticism and suspicion because they are codefendants and entered into agreements with the State where they were given leniency in exchange for their testimony. While such testimony is subject to careful scrutiny, the testimony of an accomplice, whether corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of defendant\u2019s guilt beyond a reasonable doubt. People v. McLaurin, 184 Ill. 2d 58, 79 (1998).\nDefendant also argues that the eyewitness testimony was inconsistent and conflicting. Conflicts and inconsistencies in testimony do not necessarily establish reasonable doubt. People v. Baldwin, 256 Ill. App. 3d 536, 542 (1994). The record shows that the witnesses\u2019 statements were generally consistent and varied only in minor respects, which is to be expected anytime several persons witness the same event under traumatic circumstances. See People v. Brooks, 187 Ill. 2d 91, 133 (1999). After carefully reviewing the record, we do not believe these inconsistencies and conflicts were such that a rational trier of fact could not have found defendant guilty beyond a reasonable doubt.\nDefendant\u2019s claim that there was no physical evidence connecting him to the crime has no merit. While the testimony of the identifying witnesses alone was sufficient to sustain defendant\u2019s conviction, the handprint found on the blue Chevrolet is indeed physical evidence linking defendant to the crime.\nDefendant argues that his alibi witnesses were not conclusively refuted and, therefore, cast adequate doubt upon the eyewitness identifications. However, reasonable doubt is not created by the mere existence of alibi evidence. People v. Killingsworth, 314 Ill. App. 3d 506, 510 (2000). The weight to be given alibi evidence is a question of credibility for the jury, which has no obligation to believe alibi evidence over positive identification. People v. Jackson, 237 Ill. App. 3d 712, 718 (1992). The evidence was sufficient for a rational trier of fact to find defendant guilty of first-degree murder beyond a reasonable doubt.\nB. PROSECUTORIAL MISCONDUCT\nDefendant\u2019s second argument on appeal is that two instances of prosecutorial misconduct deprived him of a fair trial. The first instance concerns the testimony that defendant carried the rank of \u201cenforcer\u201d in the gang. This testimony was stricken and the jury was instructed to disregard it because the basis of the witness\u2019s knowledge was hearsay. Defendant contends that the insinuation was extremely prejudicial because it made the jury more likely to believe that defendant was the shooter. Although not requested at trial, defendant contended in his posttrial motion and now on appeal that the trial court erred in failing to declare a mistrial sua sponte. Defendant urges us to review the issue pursuant to the plain-error rule.\nIn order to preserve for review on appeal an issue that could have been raised during trial, defendant must object at trial and raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The plain-error rule permits a reviewing court to consider issues that have been waived by the accused when the evidence is closely balanced or when the error is so fundamental and of such magnitude that the accused was denied a fair trial. People v. Lucas, 151 Ill. 2d 461, 482 (1992). The evidence in this case was not closely balanced. As we discussed above, there was direct identification of defendant by three eyewitnesses.\nIn any event, we find no merit in defendant\u2019s argument. The trial court should grant a mistrial only where the jury has been so influenced and prejudiced that it would not, or could not, be fair and impartial and where the damaging effect of the evidence cannot be remedied by instructions. People v. Aleman, 313 Ill. App. 3d 51, 65 (2000). Juries are presumed to follow the trial court\u2019s instructions. People v. Taylor, 166 Ill. 2d 414, 438 (1995). Defendant has failed to show that any damage was not remedied by instructing the jury to disregard the testimony.\nThe second instance of prosecutorial misconduct that defendant contends deprived him of a fair trial was the prosecutor\u2019s use of the word \u201cpride\u201d in his closing argument. During Keith Smith\u2019s testimony, Smith described a look of pride on defendant\u2019s face after defendant shot the victim. The testimony was objected to, the objection was sustained, and the jury was instructed to disregard the testimony. Then, at the beginning of the State\u2019s closing argument, the prosecutor said:\n\u201cOn October 27, 1994, the Gangster Disciples sent a message to everybody who would listen, to friend and foe alike, that invaders would not be tolerated.\n^ #\n*** [T]he loudest message of all, ladies and gentlemen, was sent by that man, the defendant. He sent that message with pride, with conviction, he sent that message by taking a gun to the head of Armando Mendez and pulling the trigger.\u201d (Emphasis added.)\nBecause defendant did not object to the comment during the prosecutor\u2019s closing argument and defendant\u2019s posttrial motion does not raise the issue, it is waived. See Enoch, 122 Ill. 2d at 186. The plain-error rule is not applicable because the evidence in this case was not closely balanced, and we fail to see how the error is so fundamental and of such magnitude that defendant was denied a fair trial. See Lucas, 151 Ill. 2d at 482.\nNevertheless, where a prosecutor\u2019s remarks exceed the bounds of proper comment, a reviewing court should not disturb the verdict unless it can be said that the remarks in question resulted in substantial prejudice to the accused such that absent those remarks the verdict would have been different. People v. Culley, 286 Ill. App. 3d 155, 168 (1997). We do not believe the prosecutor\u2019s use of the word \u201cpride\u201d was improper, and in any event, defendant has failed to show that the verdict would have been different absent this remark.\nC. DEPRIVATION OF THE ASSISTANCE OF COUNSEL\nDefendant\u2019s third argument on appeal is that he was deprived of the assistance of counsel at the proceedings on his posttrial pro se motions alleging ineffective assistance of his trial counsel. Defendant contends that, although a new attorney was appointed to represent him in proceedings on his pro se motions, the attorney did not function as his advocate. Instead, the attorney filed a motion to withdraw as counsel and argued that the allegations in defendant\u2019s pro se motions lacked merit. Defendant urges us to vacate the order denying defendant\u2019s pro se motions and remand the cause for the appointment of new counsel and a hearing on the allegations in the motions.\nWhen a defendant files a pro se motion for new trial alleging that his trial counsel was ineffective, the trial court should conduct a preliminary investigation of defendant\u2019s allegations. People v. Nitz, 143 Ill. 2d 82, 134 (1991). If the trial court determines that the allegations are spurious or pertain to matters of trial strategy, then no new counsel need be appointed. Nitz, 143 Ill. 2d at 134. If, however, the allegations show possible neglect of the case, new counsel should be appointed to argue defendant\u2019s claims of ineffective assistance of counsel. Nitz, 143 Ill. 2d at 134-35.\nThe trial court appointed attorney Wiegman to represent defendant on his pro se motions but then called upon him to evaluate defendant\u2019s allegations and report his findings to the court. Attorney Wiegman found that the motions had no merit, and he argued that position to the court. Attorney Wiegman did not act as defendant\u2019s advocate in the proceedings on these motions. However, because we believe the trial court conducted a proper preliminary investigation as required by Nitz, we find that defendant was not deprived of counsel at proceedings on his pro se motions.\nDefendant argues that, when his first pro se motion to dismiss trial counsel came before the trial court, the court immediately recognized that the allegations showed possible neglect of the case and did not find it necessary to solicit trial counsel\u2019s explanation of the circumstances before appointing counsel. We disagree.\nWhen the motion was called to the trial court\u2019s attention, counsel was appointed, but the trial court conducted no preliminary investigation of defendant\u2019s allegations at that time. Although attorney Wieg-man is referred to as counsel for defendant on his pro se motions, attorney Wiegman actually was enlisted by the trial court to participate in the preliminary investigation of defendant\u2019s allegations.\nThe proceedings on defendant\u2019s pro se motions were not evidentiary hearings. Rather, the proceedings consisted of attorney Wiegman\u2019s explanation of his factual and legal findings concerning the allegations, an explanation from defendant\u2019s trial counsel, and argument from the State. We note that such interchange between the court and defendant\u2019s trial counsel is appropriate during the preliminary investigation of defendant\u2019s allegations of ineffective representation. See People v. Jackson, 131 Ill. App. 3d 128, 139 (1985).\nAt the conclusion of the proceeding on defendant\u2019s first pro se motion, the allegations of failure to communicate and unethical performance were found to be conclusions unsupported by facts. The trial court concluded that the alleged failure to provide defendant with all of the discovery materials, if true, was a matter of trial strategy. The alleged conflict of interest due to defendant\u2019s trial counsel\u2019s representation of Eric Mott and Latrone Kirkwood was spurious because each defendant had separate, nonantagonistic alibis, and counsel withdrew from those cases before defendant\u2019s trial. With regard' to the alleged conflict of interest based on defendant\u2019s filing of a complaint against his trial counsel with the Attorney Registration and Disciplinary Commission, the trial court found that such a situation does not necessarily create a conflict of interest and that there was no conflict at the time of trial because the complaint was filed after the trial concluded. Finally, the trial court found that the allegations concerning the failure to call certain witnesses were matters of trial strategy.\nAt the conclusion of the proceedings on defendant\u2019s second pro se motion, the trial court found that the allegation concerning trial counsel\u2019s failure to challenge the accuracy of the palm print found on the blue Chevrolet to be a matter of trial strategy because defendant claimed the print was put on the car before the night of the shooting. With respect to the allegation that trial counsel did not properly impeach the State\u2019s witnesses, the trial court found this was a matter of trial strategy.\nWe conclude that the trial court adequately inquired into defendant\u2019s allegations of ineffective assistance of counsel and found that they lacked merit or were matters of trial strategy. That being the case, defendant\u2019s right to new counsel to represent him on his pro se motions never existed. Neither the fact that attorney Wiegman was purportedly appointed to represent defendant and did not do so nor the fact that he assisted the court in the preliminary investigation of defendant\u2019s allegations affected defendant\u2019s right to counsel. Therefore, we hold that defendant was not deprived of the assistance of counsel at the proceedings on his pro se posttrial motions.\nD. NATURAL LIFE IMPRISONMENT\nDefendant raises several issues regarding his sentence of natural life imprisonment. Understanding defendant\u2019s contentions requires a review of the three stages of a death penalty case. Initially, a judge or jury determines whether the State has proved defendant guilty of first-degree murder beyond a reasonable doubt (stage one); next, a judge or jury determines whether the State has proved beyond a reasonable doubt that defendant is eligible for the death penalty (stage two); and finally a judge or jury determines whether there are mitigating factors to preclude the death sentence (stage three). 720 ILCS 5/9 \u2014 1 (West 1994).\nA trial court has the discretion to sentence a defendant to natural life imprisonment if it finds (1) that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton era-elty, or (2) that any of the death penalty qualifying factors are present. 730 ILCS 5/5 \u2014 8\u20141(a)(1)(b) (West 1994). In this case the trial court specifically found that both factors were present.\nDefendant argues that the trial court\u2019s erroneous belief that he was eligible for the death penalty requires resentencing, even though he was sentenced to natural life, because the trial judge had the wrong sentencing range in mind. See People v. Hargis, 118 Ill. App. 3d 1064 (1983).\nIn reviewing the second finding set out above, we see that defendant was found eligible for the death penalty pursuant to the aggravating factor set forth in section 9 \u2014 1(b) (11) that provides for death sentence eligibility where defendant was 18 years or older at the time of the offense, and where\n\u201cthe murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom.\u201d 720 ILCS 5/9 \u2014 l(b)(ll) (West 1994).\nDefendant contends that the record in this case does not support the trial court\u2019s conclusion that the murder was premeditated and that it occurred pursuant to a preconceived plan or design. We agree.\nOur supreme court has recently explained death penalty eligibility under this section in People v. Williams, 193 Ill. 2d 1, 37 (2000):\n\u201c[T]o establish that a murder defendant is death eligible under section 9 \u2014 l(b)(ll), the State must prove more than that the murder was technically premeditated. Section 9 \u2014 1(b) (11) requires that the murder be \u2018cold,\u2019 i.e., not motivated by mercy or the emotion of the moment, and that it be \u2018calculated and premeditated, pursuant to a preconceived, plan, scheme or design,\u2019 i.e., deliberated or reflected upon for an extended period of time.\u201d\nTime is an essential element of the section 9 \u2014 1(b) (11) aggravating factor and \u201cproof of a substantial period of reflection or deliberation is required to render a defendant death eligible.\u201d Williams, 193 Ill. 2d at 31.\nThe evidence indicates that defendant deliberately walked up to Armando Mendez, who was dazed and defenseless, placed a gun to his head, pulled the trigger, and ended his life. The trial court found that defendant was associated with the other Gangster Disciples and did not just show up at Harper\u2019s and shoot Armando Mendez for a non-gang-related reason. The trial court also found that \u201cdefendant arrived at the scene with murder in his heart.\u201d The trial court further found that Jason Foster\u2019s car initially came to the scene, people got out of the car, and it then left the scene, returning a short time later with defendant, who was brandishing a gun.\nAt most, this evidence establishes that defendant had formed the intent to murder Armando Mendez just minutes before the shooting, when he was picked up by Jason Foster and learned there was a perceived Latin King in the Gangster Disciple\u2019s \u201chood.\u201d There was no evidence, however, that defendant deliberated or reflected upon the murder of Armando Mendez for an extended period of time, as is required under section 9 \u2014 1(b) (11). On the record before us we must conclude that no reasonable trier of fact could have found beyond a reasonable doubt (720 ILCS 5/9 \u2014 l(b)(ll)) (West 1994) that the murder was committed in a \u201cpremeditated manner pursuant to a preconceived plan, scheme or design.\u201d Accordingly we vacate the trial court\u2019s finding of death penalty eligibility.\nNext, we examine the trial court\u2019s finding that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Defendant argues that if we find that the death penalty qualifying factor was not proved beyond a reasonable doubt then the recent United States Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), mandates the reduction of defendant\u2019s sentence to 60 years, the maximum term available for first-degree murder. In his reply brief, defendant contends that the discretionary natural-life-imprisonment statute is rendered unconstitutional by Apprendi and therefore his natural life sentence cannot stand.\nThe Apprendi Court held unconstitutional a New Jersey hate crime statute that increased the normal 5- to 10-year range of imprisonment for possession of a firearm for an unlawful purpose to a 10- to 20-year term if the trial judge found, by a preponderance of the evidence, that defendant acted with a purpose to intimidate an individual or a group because of that person\u2019s race, color, gender, handicap, religion, sexual orientation, or ethnicity. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The Apprendi Court held that, \u201c[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Supreme Court explained that \u201cthe relevant inquiry is not one of form but of effect \u2014 does the required finding expose the defendant to a greater punishment than that authorized by the jury\u2019s guilty verdict?\u201d Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365.\nThe constitutionality of the natural life sentence authorized by section 5 \u2014 8\u20141(a)(1)(b) in light of the Apprendi decision is an issue of first impression. To sustain a charge of first-degree murder a jury must find that the State proved all of the elements of the offense beyond a reasonable doubt. A guilty verdict for first-degree murder allows a sentence ranging from 20 to 60 years\u2019 imprisonment. 730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1994). Section 5 \u2014 8\u20141(a)(1)(b) allows the judge the discretion to impose a sentence of natural life imprisonment based upon the judge\u2019s finding that defendant\u2019s conduct was exceptionally brutal or heinous behavior indicative of wanton cruelty, or that any of the death penalty qualifying factors are present. 730 ILCS 5/5 \u2014 8\u20141(a)(1)(b) (West 1994).\nAt stage two of a death penalty case, the qualifying aggravating factors must be proved beyond a reasonable doubt, and defendant has the right to a jury\u2019s determination of the existence of such factors. 720 ILCS 5/9 \u2014 1(d), (f) (West 1994). In contrast, section 5 \u2014 8\u20141(a)(1)(b) makes no provision for the submission of the exceptionally brutal and heinous issue to a jury, nor does it require that the State prove that fact beyond a reasonable doubt at any stage. Here the trial court\u2019s finding at the sentencing hearing of exceptionally brutal and heinous behavior indicative of wanton cruelty enhanced the penalty for defendant\u2019s offense beyond the statutory maximum of 60 years\u2019 imprisonment. Therefore, according to Apprendi, this sentencing scheme violates the fourteenth amendment\u2019s (U.S. Const., amend. XIV) proscription of the deprivation of liberty without due process of law and the sixth amendment (U.S. Const., amend. VI) right to trial by jury. \u201cIf the statute in question increased the penalty range or the maximum penalty for a particular crime, it would seem that the statute would unquestionably be within the scope of Apprendi.\u201d People v. Clifton, 321 Ill. App. 3d 707, 725 (2001). We are required to follow United States Supreme Court precedent where the result therein is mandated by the Constitution of the United States. People v. Gillespie, 136 Ill. 2d 496, 502 (1990).\nTherefore, we hold that section 5 \u2014 8\u20141(a)(1)(b) of the Unified Code of Corrections is unconstitutional under Apprendi inasmuch as it allows the imposition of a sentence of natural life imprisonment when the court makes a finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty without affording defendant the right to a jury determination of whether or not the State proved the fact beyond a reasonable doubt. Because defendant was unlawfully sentenced to natural life imprisonment, we exercise our authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) and reduce defendant\u2019s sentence to 60 years\u2019 imprisonment, the statutory maximum term for first-degree murder.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the judgment of conviction but modify the sentence of natural life imprisonment to 60 years\u2019 imprisonment. Our decision renders moot defendant\u2019s argument concerning the excessiveness of his sentence.\nAffirmed as modified.\nGEIGER and COLWELL, JJ., concur.", "type": "majority", "author": "JUSTICE RAPP" } ], "attorneys": [ "G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "David R. Akemann, State\u2019s Attorney, of St. Charles (Martin E Moltz and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BONZELL LAMAR JOYNER, Defendant-Appellant.\nSecond District\nNo. 2-99-0433\nOpinion filed November 8, 2000.\nRehearing denied December 7, 2000.\nG. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDavid R. Akemann, State\u2019s Attorney, of St. Charles (Martin E Moltz and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." }, "file_name": "0093-01", "first_page_order": 113, "last_page_order": 131 }