{ "id": 171754, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM EPHRAIM, Defendant-Appellant", "name_abbreviation": "People v. Ephraim", "decision_date": "2001-06-29", "docket_number": "Nos. 1\u201499\u20140836, 1\u201499\u20141267 cons.", "first_page": "1097", "last_page": "1117", "citations": [ { "type": "official", "cite": "323 Ill. App. 3d 1097" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351226 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0269-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "181 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821402 ], "year": 1998, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0541-01" ] }, { "cite": "162 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477551 ], "year": 1994, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0450-01" ] }, { "cite": "155 Ill. 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WILLIAM EPHRAIM, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant William Ephraim (defendant) was convicted by a jury of two counts of attempted first degree murder and two counts of aggravated battery with a firearm. On the two counts of attempted first degree murder, defendant was sentenced to two 20-year terms of imprisonment to be served consecutively. We affirm.\nIn the late afternoon on April 10, 1996, Asiah Vance and her aunt, Halimah Muhammed, were on the front porch of Muhammed\u2019s house at 5125 South Laflin in Chicago, Illinois, watching their children play. While sitting on the porch, Vance heard two cars speeding down the street and approximately 10 gunshots, so she ran into the house with her two-year-old daughter, Tiara Moren. When she got inside the house, she realized her daughter had been shot.\nMuhammed testified that she was standing on the bottom stair of the front porch when she heard approximately three or four gunshots. She immediately began gathering up the children and ran inside. When she got inside, she realized that her four-year-old son, Andrew White, had been shot.\nAt the time of the shooting, Terrice Hartfield, who lived next door to Muhammed, was washing his car in front of his house. Upon hearing the gunshots, Hartfield dove to the ground in front of his car. He does not recall the make of the first car to pass him, but he does remember that it was white. As for the second car, Hartfield identified it as a white Pontiac Grand Prix with a gray bottom.\nBenjamin Navarro, who also lives on Laflin, was in the alley throwing out his garbage when the shooting occurred. He remembers hearing gunshots and then seeing a white Pontiac Grand Prix race toward him. The Grand Prix stopped in the alley while the driver threw an object out the window. According to Navarro, the driver, a black male, was the only person in the car. The car did not have license plates but did have an orange sticker in the back window. On April 17, 1996, Navarro identified the car in the police department parking lot. However, after viewing a lineup, Navarro was unable to identify the driver.\nOn the day of the shooting, Chicago police detective John Halloran arrived at the scene and could not find any physical evidence connected with the shooting. While at the crime scene, Halloran spoke with Nicole and Antoinette Muhammed, the 16-year-old sisters of Andrew White. Nicole Muhammed told Halloran that she was sitting on her porch at the time of the shooting and saw a black, four-door car with gold rims chase another vehicle northbound down Laflin. Nicole Muhammed said the gunman was sitting in the backseat of the car and was shooting randomly out of the back passenger window. According to Nicole Muhammed, her boyfriend, Jason Miller, and Anthony Branch witnessed the shooting from across the street from her house.\nAntoinette Muhammed told Halloran that she too observed a black, four-door car with gold rims chase another car northbound down Laflin. According to her recollection of the shooting, the shooter was in the front passenger seat sitting on the window ledge with his upper body outside of the car while he shot a gun in a forward direction.\nNext, Halloran spoke with Jason Miller and Anthony Branch. They both told Halloran that from the porch of Miller\u2019s house they observed a black, four-door car with gold rims chase another car down Laflin. Miller and Branch recall that the shooter was in the black car. They identified the shooter as Eric, a member of the Black P Stones Gang, who lives at 51st and Paulina.\nAt trial, Halloran testified that the area where the shooting occurred is controlled by the Black P Stones street gang. Further, Hallo-ran stated that both Miller and Branch are members of the Black P Stones gang. Halloran testified that he knew of a person named Eric Gibson who did in fact live on the block claimed by Miller and Branch. Halloran showed Miller and Branch a photograph of Eric Gibson, and they both identified him as the shooter. Moreover, the police located a dark blue, four-door car with gold rims and Miller and Branch identified this car as the one driven by Eric Gibson when the shooting occurred.\nHalloran testified that Nicole and Antoinette Muhammed, as well as Miller and Branch, viewed a lineup. Miller and Branch both identified Eric Gibson as the shooter, but Nicole and Antoinette Muhammed did not. Halloran was concerned over the information he received from Nicole and Antoinette Muhammed, Miller, and Branch because their accounts of the shooting varied significantly from the accounts of others who also witnessed the shooting.\nIn an effort to reconcile the varying witness accounts Halloran received, he interviewed Miller and Branch for a second time. They both admitted that they lied when they not only identified the dark blue car, but also when they identified Eric Gibson as the shooter. Halloran testified that Branch went so far as to say that Eric Gibson was not even present at the shooting. When Nicole and Antoinette were confronted with the fact that Miller and Branch had recanted, they refused to speak to the police any further.\nHalloran testified that in the course of his investigation he learned the nickname of an individual possibly involved in the shooting and his gang affiliation. More specifically, Halloran learned that a Black P Stones gang member called \u201cBig Man\u201d might be involved in the shooting. In court, Halloran identified Big Man as the defendant.\nHalloran first spoke with defendant after he was taken into custody. After Halloran advised defendant of his rights, defendant agreed to speak with him and initially denied any knowledge about the shooting. However, defendant did admit to Halloran that he 'is known as Big Man and is a member of the Black P Stones gang.\nEventually, defendant told Halloran about his involvement in the shooting. According to Halloran, defendant told him that at the time of the shooting he was on the corner of 53rd Street and Laflin playing dice with fellow gang members. While playing dice, defendant saw a gray, two-door car drive northbound down Laflin. As the gray car passed, one of defendant\u2019s fellow gang members yelled out for someone to \u201cget on that car,\u201d since the driver was a rival gang member. Another member of the gang, known as both \u201cPercy\u201d and \u201cVerge,\u201d ran to his car to retrieve a gun and began shooting at the gray car while standing in the middle of the street. Halloran testified that defendant then stated that he jumped into his white Pontiac Grand Prix, unaccompanied by any fellow gang members, and began chasing the gray car. Halloran stated that defendant admitted that he was armed with a .32-caliber revolver that he fired with his left hand at the gray car out of the driver\u2019s side window. When he reached the 5100 block of Laflin, defendant fired additional shots at the gray car and then turned down the alley located at approximately 5207 Laflin, where he threw his gun out the window. Defendant told Halloran that he thinks a Mexican man in the alley may have seen him throw away the gun. Defendant then returned to 53rd and Laflin.\nAssistant State\u2019s Attorney Don Lyman testified that he was at the police station where Eric Gibson was in custody. After speaking with Nicole and Antoinette Muhammed, Miller, and Branch, Lyman confronted Branch with the inconsistencies in their accounts of the shooting. Branch then admitted that it was not Eric Gibson he had seen at the shooting and refused to speak any further with Lyman. When Lyman confronted Miller with the inconsistencies in their accounts, Miller admitted that he saw a white, two-door car chase another car north down Laflin. Further, Lyman testified that Miller told him that he heard gunshots and recognized the driver of the white car as Big Man.\nMiller testified at trial that he is a former member of the Black-stones street gang. Miller stated that at the time of the shooting he was dating Nicole Muhammed and knew the defendant as \u201cBig Shorty.\u201d Miller was sitting on the front porch of his house, which is directly across the street from the Muhammeds\u2019 house, when the shooting occurred. Miller remembers seeing two cars come down the street and hearing about five or six gunshots. According to Miller, the police forced him to say that one of the vehicles he saw was a gray, four-door car and that the other was black with gold wheels. Miller admitted that he told the police that he saw Eric Gibson shooting a gun out of the passenger side window of the black car. However, Miller testified that he did not recall telling Lyman that he saw Big Man driving a white, two-door car while chasing another vehicle. In fact, Miller denied ever seeing Big Man drive a white car down his street. When asked if he recalled giving previous testimony in this case in July of 1997, Miller responded in the affirmative. When asked if he remembered testifying that he saw a gray, four-door car followed by a white car driven by Big Shorty, Miller replied, \u201cI guess.\u201d Miller testified that the police told him that they were going to charge him with the shooting, and, consequently, he gave the police a false account of what took place. Miller denied knowing anyone by the name of Eric Gibson. According to Miller, he was not a friend of the defendant\u2019s and had no reason to protect him.\nPolice Officer Thomas Glynn testified that on April 16, 1996, he observed defendant driving a white, two-door vehicle with an orange sticker in the rear window. Officer Glynn pulled defendant over and recalls defendant telling him that his nickname is Big Man. Officer Glynn also testified that he learned the car defendant was driving was registered to his mother, Mary Williams.\nAssistant State\u2019s Attorney Dan Weiss testified that he interviewed defendant after his arrest and defendant admitted to him that he is a member of the Blackstone street gang and that he is frequently in the area of 53rd Street and Baffin. Defendant told Weiss that on April 10, 1996, while he was playing dice on the corner of 53rd Street and Baffin, he and Percy were ordered by another gang member to stop the car of a rival gang member which was proceeding northbound down Baffin. Percy immediately retrieved a gun from his car and fired at the gray, four-door car as it sped down the street. Defendant jumped into his car and began following the gray car while he simultaneously fired a .32-caliber gun out the driver\u2019s side window. According to Weiss, defendant said that he fired two additional shots when he was between 52nd Street and 51st Street. Defendant remembers seeing children on the street when he fired the gun and throwing the gun out somewhere around the 5200 block.\nMary Williams, defendant\u2019s mother, was the only witness to testify on behalf of defendant. Williams testified that in April of 1996, she worked three days a week from 9 a.m. to 9 p.m. as a cashier at a dollar store located at 65th Street and Ashland. Defendant also worked at the store, usually in the late afternoon or evenings, on an \u201cas needed\u201d basis. On the day of the shooting, Williams remembers asking her boss, Patricia Hodges, to pick her son up from school. Williams testified that her son then worked at the store with her from 3 p.m. until 7 p.m. At the time of trial, Williams stated she was no longer in touch with Hodges and did not know where she was living. Williams testified that the Pontiac Grand Prix her son was seen driving belonged to' her, but many of her family members had a set of keys to the car and were freely permitted to use it. According to Williams, on the day of the shooting, her sister had the car.\nAt the close of the trial, the jury found defendant guilty of both counts of attempted first degree murder and both counts of aggravated battery with a firearm. Defendant\u2019s motion for a new trial was denied.\nAt the sentencing hearing, Patricia Hodges testified on defendant\u2019s behalf. She testified that, on the day of the shooting, she picked defendant up from school and brought him to the dollar store where he worked from 3 p.m. to 7 p.m. However, Hodges did admit that on the day of the shooting she was in and out of the store all day. When asked why she failed to comply with her subpoena to appear in court to testify on behalf of defendant at trial, Hodges stated she could not recall.\nOn the two counts of attempted first degree murder, defendant was sentenced to two consecutive terms of 20 years in the Illinois Department of Corrections. Defendant appeals his conviction and sentence.\nThe issues presented for review are whether the trial court\u2019s decision to deny defendant\u2019s request to excuse two jurors for cause was against the manifest weight of the evidence; whether the doctrine of transferred intent is applicable to defendant\u2019s convictions for attempted murder where the unintended victims were not killed; whether the State failed to prove beyond a reasonable doubt that defendant committed attempted first degree murder; whether the cause must be remanded for a further posttrial hearing, where the trial court failed to sua sponte examine an allegation of ineffective assistance of counsel; and, lastly, whether Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), applies to the instant, matter where the trial court imposed mandatory consecutive sent- tences pursuant to section 5\u20148\u20144(a) and section 5\u20148\u20144(h) of the Unified Code of Corrections (730 ILCS 5/5\u20148\u20144(a), (h) (West 1998)).\nDefendant contends that when a juror expresses doubt about his ability to be impartial, he should be excused for cause. In the case at bar, defendant argues that two jurors, Louise Talabar and Jean Hicke, expressed self-doubt as to whether they could be impartial. Defendant had exhausted all of his peremptory challenges and asked the court to excuse Talabar and Hicke for cause. The trial judge denied defendant\u2019s request. The State contends that Talabar and Hicke indicated to the court that they would be impartial, and, therefore, the trial court properly denied defendant\u2019s request to excuse them for cause.\nel \u201cThe determination of whether a prospective juror is biased is within the sound discretion of the trial judge, whose decision will not be reversed unless it is against the manifest weight of the evidence.\u201d People v. Reid, 272 Ill. App. 3d 301, 307 (1995), citing People v. Cole, 54 Ill. 2d 401, 414 (1973). The juror\u2019s entire voir dire examination must be considered when determining whether a trial court\u2019s ruling on a challenge for cause was proper. People v. Buss, 187 Ill. 2d 144, 187 (1999), citing People v. Williams, 173 Ill. 2d 48, 67 (1996). The party claiming that a juror has a disqualifying state of mind has the burden of showing the actual existence of this state of mind in the juror so as to raise the \u201c \u2018presumption of partiality.\u2019 \u201d Reid, 272 Ill. App. 3d at 307, quoting Cole, 54 Ill. 2d at 413. However, the Illinois Supreme Court has held:\n\u201cWhile a prospective juror may be removed for cause when that person\u2019s \u2018views would prevent or substantially impair the performance of his duties as a juror [citation], an equivocal response does not require that a juror be excused for cause.\u201d Buss, 187 Ill. 2d at 187, citing Williams, 173 Ill. 2d at 67.\nMoreover, \u201c[a]n equivocal response by a prospective juror does not necessitate striking the prospective juror for cause where the prospective juror later states that he will try to disregard his bias.\u201d People v. Hobley, 159 Ill. 2d 272, 297 (1994), citing People v. Tipton, 222 Ill. App. 3d 657, 664 (1991).\n\u20222 A complete examination of Talabar\u2019s voir dire examination shows that the trial court did not abuse its discretion in finding that there was no need to excuse Talabar for cause. In regard to whether Talabar had ever been the victim of a crime, she merely stated that \u201cyears ago\u201d her home had been burglarized. She also noted that her brother had been killed by a negligent truck driver and that it bothers her that adolescents jeopardize their future by joining gangs. However, Talabar went on to state that she would like to think that she would have \u201cthe intelligence to be fair and make the correct decision.\u201d Talabar further stated that she would \u201cweigh everything.\u201d Lastly, although Talabar expressed some agitation after having been told by the trial judge that the evidence will show that two young children were injured, she stated that she would sign a guilty verdict only if the defendant was proven guilty beyond a reasonable doubt. Talabar\u2019s statements, when viewed as a whole, indicate that she would keep a fair and open mind when evaluating the evidence. For this reason, the trial court\u2019s decision to deny defendant\u2019s request to excuse Talabar for cause was not against the manifest weight of the evidence.\n\u20223 Similarly, the trial court\u2019s denial of defendant\u2019s request to excuse Hicke for cause was not against the manifest weight of the evidence. When asked whether evidence involving the children\u2019s injuries and gangs would affect her ability to be fair, Hicke stated that she thought she could \u201cweigh the evidence on both sides and come to a conclusion.\u201d At one point in her voir dire examination, Hicke misstated the burden of proof when she stated that she would not hold it against the defendant if he did not put on any evidence so long as the State found defendant not guilty. Hicke\u2019s understanding of the law was immediately clarified. Hicke was asked whether she understood that the State\u2019s duty was to put on witnesses so that the jury could act as the judge. To this question, Hicke responded affirmatively. Furthermore, Hicke stated that she would not hold anything against defendant if he did not put on any evidence. The totality of Hicke\u2019s responses indicate that she would keep a fair and open mind in weighing the evidence. Consequently, it is clear that, in denying defendant\u2019s request to excuse Hicke for cause, the trial court\u2019s decision was not against the manifest weight of the evidence.\n\u20224 Defendant cites to People v. Johnson, 215 Ill. App. 3d 713, 725 (1991), for the proposition that where a juror expresses self-doubt about being impartial, reversal is required. Johnson is easily distinguishable from the case at bar. In Johnson the appellate court stated that the jurors should have been excused for the following two reasons:\n\u201cMr. Milkovich, Mr. Welch, and Mr. Swope were crime victims or they had close friends or relatives who were victims of violent crimes. In addition, they equivocated when first asked whether they could be fair and impartial. For these reasons, they should have been dismissed for cause.\u201d Johnson, 215 Ill. App. 3d at 725.\nFrom this excerpt it is clear that the Johnson court found it significant that each of these three prospective jurors had himself been a crime victim or had close friends and relatives who were victims of violent crimes. The jurors were not excused only because they equivocated when asked if they could be fair and impartial. In Johnson, Michael Milkovich told the court that his family had been victims of a robbery committed by his cousin and that his sister \u201cwas involved in armed robbery, in robbery [and] drugs in Hammond.\u201d Johnson, 215 Ill. App. 3d at 717. Richard Welch testified that he and all of his close friends and relatives had been victims of violent crimes. For instance, Richard Welch stated that he had been robbed at knifepoint and that his friends had been burglarized, one of them being beaten by the assailant. Johnson, 215 Ill. App. 3d at 717. Raymond Swope testified that he had been robbed, his car had been stolen, and that his mother and wife had been raped. Johnson, 215 Ill. App. 3d at 717. The violent crimes experienced by the prospective Johnson jurors are significantly more grave than those experienced by Talabar and Hicke. The appellate court in Johnson was justified in finding that prospective jurors\u2019 equivocal responses, coupled with their exposure to violent crimes, were a valid basis for excusing them. Since the experiences of Talabar and Hicke are dissimilar from those experienced by the prospective jurors in Johnson, we find that Johnson is not applicable to the case at bar.\n\u20225 Next, defendant contends that pursuant to People v. Reinbold, 247 Ill. App. 3d 498 (1993), Talabar and Hicke should have been excused. In Reinbold, the appellate court found that the trial court should have excused a prospective juror who stated that she would like the defendant to prove his innocence. Reinbold, 247 Ill. App. 3d at 504. In the case at bar, Talabar did not express any confusion regarding the burden of proof or whether the defendant was required to present evidence in his defense. Moreover, Hicke stated that she would not hold it against the defendant if he did not put on any evidence. Since neither Talabar nor Hicke stated that defendant should be required to prove his innocence, Reinbold is also inapplicable to the case at bar.\n\u20226 Defendant asserts that People v. Pendleton, 279 Ill. App. 3d 669 (1996), is instructive on the issue of when a prospective juror should be excused. In Pendleton, the defendant argued that his due process rights under the Illinois Constitution were violated when the defense had to use two of its peremptory challenges to strike prospective jurors that should have been excused for cause. Pendleton, 279 Ill. App. 3d at 674. The appellate court held that the two prospective jurors at issue in Pendleton should have been excused since the totality of their voir dire examinations indicated that they could not be impartial. However, the court held that there are no \u201cgrounds for reversal where the defendant used peremptory challenges on venire members the trial court should have dismissed for cause, unless the defendant exhausted all of his peremptory challenges and an objectionable juror sat on the jury.\u201d Pendleton, 279 Ill. App. 3d at 677. One of the prospective jurors in Pendleton \u201cexpressed her belief that she would have a difficult time presuming defendant was innocent because she believed that once a case has come as far as a trial, the defendant is probably guilty.\u201d Pendleton, 279 Ill. App. 3d at 674. Although, ultimately the prospective juror stated that she could apply the presumption of innocence, the appellate court found that complete review of her voir dire examination showed her \u201cinability to hold the State to its burden of proving defendant\u2019s guilt beyond a reasonable doubt.\u201d Pendleton, 279 Ill. App. 3d at 674. The entire voir dire examination of another prospective juror revealed that she was a victim of an assault involving a gun being placed to her head. Based on this experience, she expressed doubt regarding whether she could be fair in a case involving a gun. Pendleton, 279 Ill. App. 3d at 674-75. The appellate court found that \u201c[t]he trial court\u2019s attempts to rehabilitate Ms. Reed could not erase Ms. Reed\u2019s experience as a serious crime victim.\u201d Pendleton, 279 Ill. App. 3d at 675. In the case at bar, the voir dire examinations of Talabar and Hicke do not resemble those of the prospective jurors in Pendleton. Talabar and Hicke showed only minor equivocation and were immediately rehabilitated. As a result, Pendleton is not applicable to the case at bar.\nIn the case at bar, a complete examination of Talabar\u2019s and Hicke\u2019s voir dire examinations indicates that they would keep a fair and open mind when evaluating the evidence at trial. Talabar and Hicke expressed only slight equivocation and were immediately rehabilitated. In light of the totality of Talabar\u2019s and Hicke\u2019s voir dire examinations, we find that trial court\u2019s decision to deny defendant\u2019s request to excuse Talabar and Hicke for cause was not against the manifest weight of the evidence.\n\u20227 Next, defendant contends that the doctrine of transferred intent is not applicable where the unintended victims were not killed. It is readily apparent that defendant did not intend to shoot and injure two young children. The State and defendant agree that defendant was intending to shoot the driver of the gray, four-door vehicle. Since there are no factual issues in dispute, the legal issues can be reviewed de nova. People v. Garriott, 253 Ill. App. 3d 1048, 1050 (1988).\nDefendant contends that where an individual is prosecuted for attempted murder and the unintended victims are not killed but only injured, the doctrine of transferred intent is not applicable to the unintended victims. In support of his argument, defendant cites to Harvey v. State, 111 Md. App. 401, 681 A.2d 628 (1996), a Maryland case. In light of this proposition, defendant argues that since the children were not killed the doctrine of transferred intent is not applicable. Without the application of transferred intent, defendant claims that the evidence was insufficient to show that he intended to kill the children. Consequently, defendant claims that his convictions for attempted murder must be vacated and the cause remanded for resentencing since the State failed to prove that defendant is guilty beyond a reasonable doubt.\nWe find defendant\u2019s argument unpersuasive. It is well established that in Illinois the doctrine of transferred intent is applicable to attempted murder cases where an unintended victim is injured. Since the law is so well established in Illinois, there is no need for this court to turn to Maryland law. Moreover, the evidence presented at trial clearly establishes defendant\u2019s guilt beyond a reasonable doubt.\nIn People v. Hill, 276 Ill. App. 3d 683, 691 (1995), this court stated that the doctrine of transferred intent \u201cremains alive and well.\u201d In Hill, this court found that the jury properly determined that the defendants had the specific intent to kill Jose Tanon and, therefore, held that the defendants\u2019 intent to kill Jose transferred to Elizabeth Perez when the bullet missed Jose and hit Elizabeth in the leg. Hill, 276 Ill. App. 3d at 689.\nIn People v. Swaney, 2 Ill. App. 3d 857, 859 (1971), the defendant argued that he intended to kill only Vladmir Chuk and not his wife, Sophie Chuk. On appeal, the defendant argued that \u201cthere was no evidence of intent to kill or harm Mrs. Chuk, maintaining that a person who, while assaulting another with intent to kill him, unintentionally injures a third person cannot be guilty of intent to kill the third person.\u201d Swaney, 2 Ill. App. 3d at 858. The appellate court found that the evidence introduced at trial showed that the defendant \u201cinvaded the home of the Chuk\u2019s [szc] for a criminal purpose while armed with a hunting knife which he used indiscriminately in the darkness.\u201d Swaney, 2 111. App. 3d at 859. Since the evidence introduced was sufficient to prove all elements of attempted murder, the appellate court held that the jury was justified in finding that the defendant was guilty beyond a reasonable doubt. Swaney, 2 111. App. 3d at 859.\nIn People v. Burrage, 269 Ill. App. 3d 67, 76 (1994), this court found that the evidence showed that one of the defendants, Rozene Burrage, had the intent to kill an individual named Andre, but she actually shot an innocent three-year-old child, and under the doctrine of transferred intent, the court held that the defendant\u2019s intent to kill Andre was transferred to the three-year-old child. Burrage, 269 Ill. App. 3d at 76.\nAccordingly, it is clear that the doctrine of transferred intent applies to situations where the victim is injured rather than killed. Therefore, in the case at bar, where the young victims were injured rather than killed, we hold that the doctrine of transferred intent is applicable.\nDefendant asserts that the State failed to prove beyond a reasonable doubt that he committed first degree attempted murder. At best, defendant contends that the evidence presented at trial established that he intended to get \u201con that car,\u201d meaning that he merely intended to stop the car he was chasing and beat the driver. More specifically, defendant is arguing that the evidence failed to show that he had the specific intent to kill the driver. The State contends that evidence showed that defendant chased the driver of the gray vehicle and fired at least three shots at him from a deadly weapon. Based on this evidence, the State argues that it proved beyond a reasonable doubt that defendant specifically intended to kill his rival gang member.\n\u20228 The Illinois Supreme Court has held that \u201c[a] criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant\u2019s guilt.\u201d People v. Collins, 106 Ill. 2d 237, 261 (1985). It is not the appellate court\u2019s duty to retry the case. Rather, we are to view the evidence in the light most favorable to the prosecution and determine whether any \u201crational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d People v. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is the jury\u2019s duty to determine whether the defendant specifically intended to kill his victim. People v. Starks, 190 Ill. App. 3d 503, 510 (1989). The verdict will not be reversed unless it is against the manifest weight of the evidence. Starks, 190 Ill. App. 3d at 510, citing People v. Nicholls, 42 Ill. 2d 91, 95 (1969).\n\u20229 This court has held that \u201c[ajlthough the intent to kill can be transferred, it must still be proven beyond a reasonable doubt.\u201d People v. Homes, 274 Ill. App. 3d 612, 623 (1995). In order for the State to obtain a conviction of attempted murder, a specific intent to kill must be proven beyond a reasonable doubt. Homes, 274 Ill. App. 3d at 622, citing People v. Jones, 81 Ill. 2d 1, 9 (1979); People v. Harris, 72 Ill. 2d 16, 27 (1978); People v. Myers, 83 Ill. App. 3d 1073, 1076 (1980). The intent to kill is a state of mind which, if not readily admitted, can be proven by presenting evidence of the surrounding circumstances and the character of the assault, including \u201cthe use of a deadly weapon [citation], and the firing of a gun at or towards another person with either malice or a total disregard for human life.\u201d Homes, 274 Ill. App. 3d at 622-23, citing People v. Strickland, 254 Ill. App. 3d 798, 808 (1993); People v. Starks, 190 Ill. App. 3d 503, 510 (1989). However, evidence that the defendant fired a gun, coupled with nothing more, is generally not sufficient to prove a specific intent to kill. Homes, 274 Ill. App. 3d at 622. The specific intent to kill may be inferred so long as the surrounding circumstances show that the defendant intended the wilfully committed act, \u201cthe direct and natural tendency of which is to destroy another\u2019s life.\u201d People v. Migliore, 170 Ill. App. 3d 581, 586 (1988), citing People v. Coolidge, 26 111. 2d 533, 537 (1963). \u201cThe very fact of firing a gun at a person supports the conclusion that the person doing so acted with an intent to kill.\u201d People v. Thorns, 62 Ill. App. 3d 1028, 1031 (1978), citing People v. Munoz, 44 Ill. App. 3d 339 (1976).\n\u202210 In the case at bar, defendant\u2019s intent to kill the driver of the four-door, gray vehicle can be inferred from the surrounding circumstances. At trial, Assistant State\u2019s Attorney Weiss testified that defendant was ordered by a fellow gang member to get \u201con that car,\u201d \u201cthat\u201d being the car of the rival gang member. In response to this order, defendant admitted to jumping into his own car and chasing the gray, four-door vehicle while firing three shots at the gray car. Regardless of whether an order to get \u201con that car\u201d means to simply beat the driver or kill the driver, three undisputed facts remain: (1) defendant chased the gray car, (2) defendant believed the driver to be a rival gang member, and (3) defendant fired multiple shots at the gray vehicle. Rival gang members are considered enemies. Further, defendant was chasing a person whom he assumed to be a rival gang member. These two facts, coupled with defendant\u2019s act of firing a gun, make it feasible for the jury to conclude that defendant intended to kill the driver of the gray car. Thus, in viewing the facts in the light must favorable to the State, we find that it was not unreasonable for the jury to have found that defendant possessed the specific intent to kill.\nDefendant claims that the trial court was obligated, sua sponte, to hold a hearing pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), in an effort to determine whether defendant\u2019s trial counsel was incompetent. More specifically, defendant asserts that his trial counsel failed to present the testimony of alibi witness Patricia Hodges, who was listed in defendant\u2019s answer to discovery. Defendant argues that the trial court should have appointed independent counsel to represent defendant at a hearing on ineffective assistance of counsel even though defendant never explicitly alleged that his trial counsel was ineffective. Since Hodges was presented as a witness only at defendant\u2019s sentencing hearing, defendant contends that we should remand the matter for posttrial proceedings on counsel\u2019s ineffectiveness.\nIn Krankel, after trial, the defendant filed a pro se motion for a new trial alleging that defense counsel failed to introduce the defense of alibi and failed to investigate the defendant\u2019s whereabouts at the time the crime was committed. Krankel, 102 Ill. 2d at 183. The Illinois Supreme Court noted that, in their briefs, both the State and the defendant\u2019s trial counsel agreed that the \u201cdefendant should have had counsel, other than his originally appointed counsel, appointed to represent him at the posttrial hearing in regard to the allegation that he had received ineffective assistance of counsel.\u201d Krankel, 102 Ill. 2d at 189. The Illinois Supreme Court agreed with the defendant and the State and, therefore, remanded the matter for a new hearing on defendant\u2019s motion for a new trial with appointed counsel other than his originally appointed counsel. Krankel, 102 Ill. 2d at 189. Thus, the crux of Krankel is that a defendant\u2019s attorney cannot argue a motion, on behalf of the defendant, where the defendant is claiming that his attorney was ineffective. To alleviate any potential bias, independent counsel must be appointed.\nIn People v. Jackson, 131 Ill. App. 3d 128, 137-38 (1985), the defendant and his attorney appeared in court for the dual purposes of hearing the defendant\u2019s posttrial motion and holding the sentencing hearing. However, prior to appearing in court on this day, the defendant wrote a letter to the trial judge in which he complained that he had not been effectively represented by his trial attorney. Jackson, 131 Ill. App. 3d at 138. In his letter to the trial judge, the defendant alleged that his attorney failed to call an alibi witness, the defendant\u2019s doctor, to testify at trial. The defendant wanted his doctor called to the witness stand in order to testify that, at the time of the offense, defendant was in the doctor\u2019s office. Moreover, the defendant believes that his doctor would have testified that due to his lack of physical strength, defendant could not have stolen the television and microwave because he could not lift them. Jackson, 131 Ill. App. 3d at 140. When confronted with this allegation, the defendant\u2019s attorney told the trial judge that defendant\u2019s doctor was not called because after he interviewed the doctor and his office staff he learned that the defendant could not be placed at the witness\u2019 place of business at any relevant time. Jackson, 131 Ill. App. 3d at 138. Further, the defendant\u2019s trial counsel stated that any testimony regarding the defendant\u2019s physical condition would have been cumulative evidence. Jackson, 131 Ill. App. 3d at 138.\nOn appeal, the defendant argued that \u201cwhere a defendant, in a post-trial motion, alleges the ineffective assistance of trial counsel, new counsel generally should be appointed for the purpose of conducting the hearing.\u201d Jackson, 131 Ill. App. 3d at 138. This court held that a defendant\u2019s right to independent counsel is not a per se rule. Jackson, 131 Ill. App. 3d at 138. In determining whether the defendant is entitled to independent counsel after complaining, during posttrial proceedings, that his trial counsel was ineffective, the Jackson court held that the objective test set forth in People v. Johnson, 98 Ill. App. 3d 28 (1981), should be applied. Pursuant to Johnson, independent counsel should not be appointed if \u201cdefendant\u2019s claim is spurious or revolves simply around a matter of trial strategy or tactics.\u201d Jackson, 131 Ill. App. 3d at 139. However, independent counsel should be appointed if the facts show that the defendant\u2019s case may have been neglected. Jackson, 131 Ill. App. 3d at 139.\nIn Jackson, the appellate court found that the trial court applied the Johnson test and reached the proper conclusion. Jackson, 131 Ill. App. 3d at 140. The appellate court agreed with the trial court\u2019s conclusion that the doctor\u2019s testimony would have been \u201cvirtually nonprobative as an alibi.\u201d Jackson, 131 Ill. App. 3d at 140. Thus, the appellate court held \u201c[t]he trial court determined the contention was spurious, a determination which was not manifestly erroneous and which we affirm.\u201d Jackson, 131 Ill. App. 3d at 140.\nIn People v. Williams, 224 Ill. App. 3d 517 (1992), the defendant asserted on appeal that he was denied effective assistance of counsel. Specifically, the defendant claimed that \u201cthe trial court failed to exam-inc the readily apparent ineffective assistance when defense counsel, at the post-trial hearing, revealed that he had additional witnesses who were not called at trial.\u201d Williams, 224 Ill. App. 3d at 523. In support of his argument, the defendant in Williams, like the defendant in the case at bar, argued that the trial court erred when it failed to conduct an examination of the trial counsel\u2019s performance sua sponte, as defendant claims is required under Krankel. Williams, 224 Ill. App. 3d at 523. The defendant in Williams relies on People v. Jackson to support his contention that the trial court should have applied the Johnson test in an effort to determine whether independent counsel should have been appointed. Williams, 224 Ill. App. 3d at 523.\nThe appellate court in Williams held that the case must be remanded for a hearing on the defendant\u2019s possible ineffective assistance of counsel claim. The court based its decision on the fact that at the posttrial motion the defendant\u2019s attorney revealed that critical alibi witnesses were not called at trial. The defendant\u2019s attorney stated that the witnesses had been unavailable; however, the record is silent as to what efforts, if any, he made to present them. Williams, 224 Ill. App. 3d at 524. Additionally, the appellate court noted that the defendant did not file a pro se petition or write the judge a letter alleging ineffective assistance of counsel. Williams, 224 Ill. App. 3d at 524. However, the appellate court found that \u201cthe trial judge\u2019s strong comments to counsel at the hearing indicate that he was made aware of counsel\u2019s possible neglect.\u201d Williams, 224 Ill. App. 3d at 524. The Williams court held that \u201c[w]here there is a clear basis for an allegation of ineffectiveness of counsel, a defendant\u2019s failure in explicitly making such an allegation does not result in a waiver of a Krankel problem.\u201d Williams, 224 Ill. App. 3d at 524, citing People v. Jameson, 155 Ill. App. 3d 650, 662-663 (1987) (where prior to trial the defendant requested new counsel, defense counsel filed a motion to withdraw which was denied, and defense counsel failed to make any effort to contact a possible key witness, the appellate court held that it was error to allow defendant\u2019s trial counsel to argue a motion based on allegations of her own incompetence). After determining that the defendant did not waive the issue, the appellate court held that the defendant\u2019s best possible defense consisted of alibi testimony given by witnesses who were not called to testify. Williams, 224 Ill. App. 3d at 524. Therefore, the Williams court held that, out of \u201cfundamental fairness,\u201d a further investigation of counsel\u2019s performance was needed and remanded the matter to the trial court for a determination of whether the defendant\u2019s allegations of ineffectiveness either lacked substance or merely pertained to trial tactics. Williams, 224 Ill. App. 3d at 524. The appellate court clearly stated that if the trial court found that trial counsel must have neglected the defendant\u2019s case, then independent counsel must be appointed to argue defendant\u2019s claim of ineffective assistance of counsel. Williams, 224 Ill. App. 3d at 524.\n\u202211 In the case at bar, defendant did not file a pro se petition alleging ineffective assistance of counsel, nor did defendant write a letter to the trial judge making such a claim. However, in Williams, defendant\u2019s inaction does not result in waiver of this issue. In reviewing the facts at bar, we find the State\u2019s argument most persuasive. The State rightfully argues that the trial court did not err in not sua sponte conducting a hearing regarding the alleged ineffectiveness of defendant\u2019s trial counsel. Unlike Williams, in the case at bar, there is no clear basis for an allegation of ineffectiveness.\nDefendant\u2019s defense depended on critical alibi testimony, and, therefore, defendant\u2019s mother testified as to her son\u2019s whereabouts at the time of the offense. According to her testimony, Patricia Hodges picked defendant up at school and brought him to the dollar store where he worked from 3 p.m. until 7 p.m. on the day of the shooting. Perhaps defendant\u2019s attorney, as a matter of trial strategy, believed one alibi witness would be sufficient to assure the jury that defendant was not guilty. Had no one been called to testify regarding defendant\u2019s whereabouts, we would be more inclined to find that defendant\u2019s case had been neglected by his attorney. Additionally, at the sentencing hearing, Patricia Hodges testified that she remembers having been subpoenaed to testify at defendant\u2019s trial but that she could not remember why she failed to appear in court. Thus, unlike the defense attorneys in Williams and Jameson, defendant\u2019s attorney did take affirmative action to compel Patricia Hodges\u2019 testimony. The fact that defendant\u2019s mother testified as an alibi witness and the fact that Patricia Hodges was subpoenaed to appear in court suggest that defendant\u2019s attorney was diligent in his efforts to prepare defendant\u2019s case. Since a clear basis for an allegation of ineffectiveness of counsel does not exist, we cannot find that the trial court erred in failing to sua sponte examine whether defendant was provided with effective assistance of counsel.\n\u202212 Defendant argues that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), his consecutive sentences are unconstitutional. Further, defendant contends that the trial judge made no specific findings concerning (1) the basis for ordering that his two 20-year sentences on counts I and II are to run consecutively or (2) the basis for ordering that his two 20-year sentences in the case at bar are to run consecutively with the sentence he received in an earlier case. Defendant assumes that his consecutive sentences were ordered based on either section 5\u20148\u20144(a) or section 5\u20148\u20144(h) of the Unified Code of Corrections (730 ILCS 5/5\u20148\u20144(a), (h) (West 1998)). Defendant argues that, under these provisions, questions of whether the events occurred in a single course of conduct or whether defendant was on bond at the time of the offense were not alleged in the indictment or submitted to the jury for determination and, therefore, were not proven beyond a reasonable doubt.\nIssues involving substantial rights may be considered by a reviewing court even if not properly preserved in the trial court. 134 Ill. 2d R 615(a); People v. Brandon, 162 Ill. 2d 450, 457-58 (1994). As the imposition of an unauthorized sentence affects substantial rights, we will address the merits of defendant\u2019s claim. People v. Hicks, 181 Ill. 2d 541, 545 (1998).\nIn the case at bar, at defendant\u2019s sentencing hearing, the State told the trial judge that one factor to be considered in determining defendant\u2019s sentence is that defendant shot the two children in the case at bar while he was out on bond for a Class X offense of possession of a controlled substance with intent to sell. On June 3, 1998, defendant was convicted of this drug crime and sentenced to eight years in the Illinois Department of Corrections.\nOn February 9, 1999, defendant was sentenced to two consecutive 20-year sentences on the two counts of attempted murder in the instant matter. Prior to the trial judge announcing defendant\u2019s sentence, the State argued that pursuant to \u201c730 5/5\u20148\u20144,\u201d defendant should receive consecutive sentences. The State failed to articulate which paragraph of section 5\u20148\u20144 of the Unified Code of Corrections it was asking the trial judge to follow. The trial judge then ordered consecutive sentences and stated that his reasoning for doing so was that he was obligated to so hold pursuant to statute. However, the trial judge never identified the particular statute under which defendant\u2019s consecutive sentences were ordered. Rather, he simply stated that since defendant was found guilty of two separate counts of attempted first degree murder with regard to two separate individuals, the court was obligated to order consecutive sentences. Lastly, the trial judge clearly stated that defendant\u2019s sentence in the case at bar, 96 CR 15350, is to run consecutively with his sentence in the drug case, 96 CR 12455.\nA review of the order of sentence and commitment to Illinois Department of Corrections (sentencing instrument) shows that defendant was sentenced to two consecutive 20-year terms on counts I and II. The sentencing instrument also states that defendant\u2019s sentence is to run consecutively with his sentence in 96 CR 12455. It is clear that the two consecutive 20-year terms in case 96 CR 15350 were imposed pursuant to section 5\u20148\u20144(a) of the Unified Code of Corrections and those terms were to run consecutively to his eight-year sentence in case 96 CR 12455 pursuant to section 5\u20148\u20144(h) of the Unified Code of Corrections. In pertinent part, section 5\u20148\u20144(a) of the Unified Code of Corrections provides:\n\u201c(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless:\n(i) one of the offenses for which defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury[.]\u201d 730 ILCS 5/5\u20148\u20144(a) (West 2000).\nSection 5\u20148\u20144(h) provides the following:\n\u201cIf a person charged with a felony commits a separate felony while on pre-trial release or on pre-trial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.\u201d 730 ILCS 5/5\u20148\u20144(h) (West 1998).\nIn Apprendi, the United States Supreme Court held that \u201c \u2018under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.\u2019 \u201d Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6 (1999). The Court reasoned that \u201c \u2018it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.\u2019 [Citations.]\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363.\nThe State agrees with defendant\u2019s interpretation of Apprendi-, the United States Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. However, the State contends that defendant\u2019s consecutive sentences need not be analyzed under Apprendi because defendant was not sentenced beyond the prescribed statutory maximum.\nThe Illinois Supreme Court recently addressed the constitutionality of consecutive sentences under Apprendi. People v. Wagener, 196 Ill. 2d 269 (2001). The court held that because consecutive sentences remain discrete sentences, \u201ca determination that sentences are to be served consecutively cannot run afoul of Apprendi, which only addresses sentences for individual crimes.\u201d Wagener, 196 Ill. 2d at 286. \u201cApprendi concerns are not implicated by consecutive sentencing,\u201d and, thus, we must reject defendant\u2019s argument. Wagener, 196 Ill. 2d at 286. Each of defendant\u2019s individual sentences was within the statutory range established by the legislature and are therefore proper under Apprendi.\nFor the foregoing reason, we affirm defendant\u2019s convictions for attempted first degree murder and the order providing that these sentences shall run consecutively. Finally, we affirm the trial court\u2019s decision to order that defendant\u2019s two 20 year sentences in the case at bar run consecutively with his sentence on the drug case, 96 CR 12455.\nAffirmed.\nQUINN, P.J., and THEIS, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM EPHRAIM, Defendant-Appellant.\nFirst District (5th Division)\nNos. 1\u201499\u20140836, 1\u201499\u20141267 cons.\nOpinion filed June 29, 2001.\n\u2014Rehearing denied August 8, 2001.\nMichael J. Pelletier and Debra R. Salinger, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1097-01", "first_page_order": 1115, "last_page_order": 1135 }