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Fifth Division
June 29, 2001

JUSTICE GREIMAN delivered the opinion of the court:

Defendant William Ephraim (defendant) was convicted by a jury of two counts of attempted firstdegree murder and two counts of aggravated battery with a firearm. On the two counts of attempted first degreemurder, defendant was sentenced to two 20-year terms of imprisonment to be served consecutively. We affirmin part and vacate in part.

In the late afternoon on April 10, 1996, Asiah Vance and her aunt, Halimah Muhammed, were on thefront porch of Muhammed's house at 5125 South Laflin in Chicago, Illinois watching their children play. Whilesitting on the porch, Vance heard two cars speeding down the street and approximately 10 gunshots, so she raninto the house with her two-year-old daughter, Tiara Moren. When she got inside the house, she realized herdaughter had been shot.

Muhammed testified that she was standing on the bottom stair of the front porch when she heardapproximately three or four gunshots. She immediately began gathering up the children and ran inside. Whenshe got inside, she realized that her four-year-old son, Andrew White, had been shot.

At the time of the shooting, Terrice Hartfield, who lived next door to Muhammed, was washing his carin front of his house. Upon hearing the gunshots, Hartfield dove to the ground in front of his car. He does notrecall 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.

Benjamin Navarro, who also lives on Laflin, was in the alley throwing out his garbage when theshooting occurred. He remembers hearing gunshots and then seeing a white Pontiac Grand Prix race towardhim. The Grand Prix stopped in the alley while the driver threw an object out the window. According toNavarro, the driver, a black male, was the only person in the car. The car did not have license plates but didhave an orange sticker in the back window. On April 17, 1996, Navarro identified the car in the policedepartment parking lot. However, after viewing a lineup, Navarro was unable to identify the driver.

On the day of the shooting, Chicago police detective John Halloran arrived at the scene and could notfind any physical evidence connected with the shooting. While at the crime scene, Halloran spoke with Nicoleand Antoinette Muhammed, the 16-year-old sisters of Andrew White. Nicole Muhammed told Halloran that shewas sitting on her porch at the time of the shooting and saw a black, four-door car with gold rims chase anothervehicle northbound down Laflin. Nicole Muhammed said the gunman was sitting in the back seat of the car andwas 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.

Antoinette Muhammed told Halloran than she too observed a black, four-door car with gold rims chaseanother car northbound down Laflin. According to her recollection of the shooting, the shooter was in the frontpassenger seat sitting on the window ledge with his upper body outside of the car while he shot a gun in aforward direction.

Next, Halloran spoke with Jason Miller and Anthony Branch. They both told Halloran that from theporch of Miller's 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 ofthe Black P Stones Gang, who lives at 51st and Paulina.

At trial, Halloran testified that the area where the shooting occurred is controlled by the Black P Stonesstreet gang. Further, Halloran 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 byMiller and Branch. Halloran showed Miller and Branch a photograph of Eric Gibson, and they both identifiedhim as the shooter. Moreover, the police located a dark blue, four-door car with gold rims and Miller andBranch identified this car as the one driven by Eric Gibson when the shooting occurred.

Halloran testified that Nicole and Antoinette Muhammed, as well as Miller and Branch, viewed alineup. Miller and Branch both identified Eric Gibson as the shooter, but Nicole and Antoinette Muhammed didnot. 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 alsowitnessed the shooting.

In an effort to reconcile the varying witness accounts Halloran received, he interviewed Miller andBranch for a second time. They both admitted that they lied when they not only identified the dark blue car, butalso when they identified Eric Gibson as the shooter. Halloran testified that Branch went so far as to say thatEric Gibson was not even present at the shooting. When Nicole and Antoinette were confronted with the factthat Miller and Branch had recanted, they refused to speak to the police any further.

Halloran testified that in the course of his investigation he learned the nickname of an individualpossibly involved in the shooting and his gang affiliation. More specifically, Halloran learned that a Black PStones gang member called "Big Man" might be involved in the shooting. In court, Halloran identified BigMan as the defendant.

Halloran first spoke with defendant after he was taken into custody. After Halloran advised defendantof 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 Stonesgang.

Eventually, 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 dicewith fellow gang members. While playing dice, defendant saw a gray, two-door car drive northbound downLaflin. As the gray car passed, one of defendant's fellow gang members yelled out for someone to "get on thatcar," since the driver was a rival gang member. Another member of the gang, known as both "Percy" and"Verge," ran to his car to retrieve a gun and began shooting at the gray car while standing in the middle of thestreet. 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 defendantadmitted that he was armed with a .32-caliber revolver that he fired with his left hand at the gray car out of thedriver's side window. When he reached the 5100 block of Laflin, defendant fired additional shots at the gray carand 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.

Assistant State's Attorney Don Lyman testified that he was at the police station where Eric Gibson wasin custody. After speaking with Nicole and Antoinette Muhammed, Miller, and Branch, Lyman confrontedBranch with the inconsistencies in their accounts of the shooting. Branch then admitted that it was not EricGibson he had seen at the shooting and refused to speak any further with Lyman. When Lyman confrontedMiller with the inconsistencies in their accounts, Miller admitted that he saw a white, two-door car chaseanother car north down Laflin. Further, Lyman testified that Miller told him that he heard gunshots andrecognized the driver of the white car as Big Man.

Miller testified at trial that he is a former member of the Blackstones street gang. Miller stated that atthe time of the shooting he was dating Nicole Muhammed and knew the defendant as "Big Shorty." Miller wassitting on the front porch of his house, which is directly across the street from the Muhammeds' house, when theshooting occurred. Miller remembers seeing two cars come down the street and hearing about five or sixgunshots. According to Miller, the police forced him to say that one of the vehicles he saw was a gray, four-door and that the other was black with gold wheels. Miller admitted that he told the police that he saw EricGibson shooting a gun out of the passenger side window of the black car. However, Miller testified that he didnot recall telling Lyman that he saw Big Man driving a white, two-door car while chasing another vehicle. Infact, Miller denied ever seeing Big Man drive a white car down his street. When asked if he recalled givingprevious testimony in this case in July of 1997, Miller responded in the affirmative. When asked if heremembered testifying that he saw a gray, four-door followed by a white car driven by Big Shorty, Millerreplied, "I guess." 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 thename of Eric Gibson. According to Miller, he was not a friend of the defendant's and had no reason to protecthim.

Police 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 recallsdefendant telling him that his nickname is Big Man. Officer Glynn also testified that he learned the cardefendant was driving was registered to his mother, Mary Williams.

Assistant State's Attorney Dan Weiss ("Weiss") testified that he interviewed defendant after his arrestand defendant admitted to him that he is a member of the Blackstone street gang and that he is frequently in thearea of 53rd Street and Laflin. Defendant told Weiss that on April 10, 1996, while he was playing dice on thecorner of 53rd Street and Laflin, he and Percy were ordered by another gang member to stop the car of a rivalgang member which was proceeding northbound down Laflin. Percy immediately retrieved a gun from his carand fired at the gray, four-door car as it sped down the street. Defendant jumped into his car and beganfollowing the gray car while he simultaneously fired a .32-caliber gun out the driver's side window. Accordingto 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 somewherearound the 5200 block.

Mary Williams, defendant's 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 adollar store located at 65th Street and Ashland. Defendant also worked at the store, usually in the late afternoonor evenings, on an "as needed" basis. On the day of the shooting, Williams remembers asking her boss, PatriciaHodges, to pick her son up from school. Williams testified that her son then worked at the store with her from 3p.m. until 7 p.m. At the time of trial, Williams stated she was no longer in touch with Hodges and did notknow where she was living. Williams testified that the Pontiac Grand Prix her son was seen driving belonged toher, but many of her family members had a set of keys to the car and were freely permitted to use it. Accordingto Williams, on the day of the shooting, her sister had the car.

At the close of the trial, the jury found defendant guilty of both counts of attempted first degree murderand both counts of aggravated battery with a firearm. Defendant's motion for a new trial was denied.

At the sentencing hearing, Patricia Hodges testified on defendant's behalf. She testified that on the dayof the shooting, she picked defendant up from school and brought him to the dollar store where he worked from3 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 allday. When asked why she failed to comply with her subpoena to appear in court to testify on behalf ofdefendant at trial, Hodges stated she could not recall.

On the two counts of attempted first degree murder, defendant was sentenced to two consecutive termsof 20 years in the Illinois Department of Corrections. Defendant appeals his conviction and sentence.

The issues presented for review are whether the trial court's decision to deny defendant's request toexcuse two jurors for cause was against the manifest weight of the evidence; whether the doctrine of transferredintent is applicable to defendant's convictions for attempted murder where the unintended victims were notkilled; whether the State failed to prove beyond a reasonable doubt that defendant committed attempted firstdegree murder; whether the cause must be remanded for a further posttrial hearing, where the trial court failedto sua sponte examine an allegation of ineffective assistance of counsel; and, lastly, whether Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), applies to the instant matter where the trialcourt imposed mandatory consecutive sentences pursuant to section 5-8-4(a) and section 5-8-4(h) of the UnifiedCode of Corrections (730 ILCS 5/5-8-4(a), (h) (West 1998)).

Defendant contends that when a juror expresses doubt about his ability to be impartial, he should beexcused 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 peremptorychallenges and asked the court to excuse Talabar and Hicke for cause. The trial judge denied defendant'srequest. The State contends that Talabar and Hicke indicated to the court that they would be impartial, and,therefore, the trial court properly denied defendant's request to excuse them for cause.

"The determination of whether a prospective juror is biased is within the sound discretion of the trialjudge whose decision will not be reversed unless it is against the manifest weight of the evidence." People v.Reid, 272 Ill. App. 3d 301, 307 (1995), citing People v. Cole, 54 Ill. 2d 401, 414 (1973). The juror's entire voirdire examination must be considered when determining whether a trial court's ruling on a challenge for causewas 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 existenceof this state of mind in the juror so as to raise the " 'presumption of partiality.' " Reid, 272 Ill. App. 3d at 307,quoting Cole, 54 Ill. 2d at 413. However, the Illinois Supreme Court has held:

"While a prospective juror may be removed for cause when that person's 'views 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. " Buss, 187 Ill. 2d at 187, citing Williams, 173 Ill. 2d at 67.

Moreover, "[a]n equivocal response by a prospective juror does not necessitate striking the prospective juror forcause where the prospective juror later states that he will try to disregard his bias." People v. Hobley, 159 Ill. 2d272, 297 (1994), citing People v. Tipton, 222 Ill. App. 3d 657, 664 (1991).

A complete examination of Talabar's voir dire examination shows that the trial court did not abuse itsdiscretion in finding that there was no need to excuse Talabar for cause. In regard to whether Talabar had everbeen the victim of a crime, she merely stated that "years ago" her home had been burglarized. She also notedthat her brother had been killed by a negligent truck driver and that it bothers her that adolescents jeopardizetheir future by joining gangs. However, Talabar went on to state that she would like to think that she wouldhave "the intelligence to be fair and make the correct decision." Talabar further stated that she would "weigheverything." Lastly, although Talabar expressed some agitation after having been told by the trial judge that theevidence will show that two young children were injured, she stated that she would sign a guilty verdict only ifthe defendant was proven guilty beyond a reasonable doubt. Talabar's statements, when viewed as a whole,indicate that she would keep a fair and open mind when evaluating the evidence. For this reason, the trialcourt's decision to deny defendant's request to excuse Talabar for cause was not against the manifest weight ofthe evidence.

Similarly, the trial court's denial of defendant's request to excuse Hicke for cause was not against themanifest weight of the evidence. When asked whether evidence involving the children's injuries and gangswould affect her ability to be fair, Hicke stated that she thought she could "weigh the evidence on both sides andcome to a conclusion." At one point in her voir dire examination, Hicke misstated the burden of proof whenshe stated that she would not hold it against the defendant if he did not put on any evidence so long as the Statefound defendant not guilty. Hicke's understanding of the law was immediately clarified. Hicke was askedwhether she understood that the State's duty was to put on witnesses so that the jury could act as the judge. Tothis question, Hicke responded affirmatively. Furthermore, Hicke stated that she would not hold anythingagainst defendant if he did not put on any evidence. The totality of Hicke's responses indicate that she wouldkeep a fair and open mind in weighing the evidence. Consequently, it is clear that, in denying defendant'srequest to excuse Hicke for cause, the trial court's decision was not against the manifest weight of the evidence.

Defendant cites to People v. Johnson, 215 Ill.App.3d 713, 725 (1991), for the proposition that where ajuror expresses self-doubt about being impartial, reversal is required. Johnson is easily distinguishable from thecase at bar. In Johnson the appellate court stated that the jurors should have been excused for the following tworeasons:

"Mr. 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." Johnson, 215 Ill. App. 3d at 725.

From this excerpt it is clear that the Johnson court found it significant that each of these three prospective jurorshad himself been a crime victim or had close friends and relatives who were victims of violent crimes. Thejurors were not excused only because they equivocated when asked if they could be fair and impartial. InJohnson, Michael Milkovich told the court that his family had been victims of a robbery committed by hiscousin and that his sister "was involved in armed robbery, in robbery [and] drugs in Hammond." Johnson, 215Ill. App. 3d at 717. Richard Welch testified that he and all of his close friends and relatives had been victims ofviolent crimes. For instance, Richard Welch stated that he had been robbed at knifepoint and that his friendshad been burglarized, one of them being beaten by the assailant. Johnson, 215 Ill. App. 3d at 717. RaymondSwope 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 aresignificantly more grave than those experienced by Talabar and Hicke. The appellate court in Johnson wasjustified in finding that prospective jurors' 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 thoseexperienced by the prospective jurors in Johnson, we find that Johnson is not applicable to the case at bar.

Next, defendant contends that pursuant to People v. Reinbold, 247 Ill .App. 3d 498 (1993), Talabar andHicke should have been excused. In Reinbold, the appellate court found that the trial court should have excuseda 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 whetherthe defendant was required to present evidence in his defense. Moreover, Hicke stated that she would not holdit against the defendant if he did not put on any evidence. Since neither Talabar or Hicke stated that defendantshould be required to prove his innocence, Reinbold is also inapplicable to the case at bar.

Defendant asserts that People v. Pendleton, 279 Ill. App. 3d 669 (1996), is instructive on the issue ofwhen a prospective juror should be excused. In Pendleton, the defendant argued that his due process rightsunder the Illinois Constitution were violated when the defense had to use two of its peremptory challenges tostrike prospective jurors that should have been excused for cause. Pendleton, 279 Ill. App. 3d at 674. Theappellate court held that the two prospective jurors at issue in Pendleton should have been excused since thetotality of their voir dire examinations indicated that they could not be impartial. However, the court held thatthere are no "grounds for reversal where the defendant used peremptory challenges on venire members the trialcourt should have dismissed for cause, unless the defendant exhausted all of his peremptory challenges and anobjectionable juror sat on the jury." Pendleton, 279 Ill. App. 3d at 677. One of the prospective jurors inPendleton, "expressed her belief that she would have a difficult time presuming defendant was innocent becauseshe believed that once a case has come as far as a trial, the defendant is probably guilty." Pendleton, 279 Ill.App. 3d at 674. Although, ultimately the prospective juror stated that she could apply the presumption ofinnocence, the appellate court found that complete review of her voir dire examination showed her "inability tohold the State to its burden of proving defendant's guilt beyond a reasonable doubt." Pendleton, 279 Ill. App. 3dat 674. The entire voir dire examination of another prospective juror revealed that she was a victim of anassault involving a gun being placed to her head. Based on this experience, she expressed doubt regardingwhether she could be fair in a case involving a gun. Pendleton, 279 Ill. App. 3d at 674-75. The appellate courtfound that "[t]he trial court's attempts to rehabilitate Ms. Reed could not erase Ms. Reed's experience as aserious crime victim." Pendleton, 279 Ill. App. 3d at 675. In the case at bar, the voir dire examinations ofTalabar and Hicke do not resemble those of the prospective jurors in Pendleton. Talabar and Hicke showedonly minor equivocation and were immediately rehabilitated. As a result, Pendleton is not applicable to the caseat bar.

In the case at bar, a complete examination of Talabar's and Hicke's voir dire examinations indicates thatthey would keep a fair and open mind when evaluating the evidence at trial. Talabar and Hicke expressed onlyslight equivocation and were immediately rehabilitated. In light of the totality of Talabar's and Hicke's voir direexaminations, we find that trial court's decision to deny defendant's request to excuse Talabar and Hicke forcause was not against the manifest weight of the evidence.

Next, defendant contends that the doctrine of transferred intent is not applicable where the unintendedvictims were not killed. It is readily apparent that defendant did not intend to shoot and injure two youngchildren. The State and defendant agree that defendant was intending to shoot the driver of the gray, four-doorvehicle. Since there are no factual issues in dispute, the legal issues can be reviewed de novo. People v. Garriot,253 Ill. App. 3d 1048, 1050 (1988).

Defendant contends that where an individual is prosecuted for attempted murder and the unintendedvictims are not killed but only injured, the doctrine of transferred intent is not applicable to the unintendedvictims. In support of his argument, defendant cites to Harvey v. State, 11 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 thedoctrine of transferred intent is not applicable. Without the application of transferred intent, defendant claimsthat the evidence was insufficient to show that he intended to kill the children. Consequently, defendant claimsthat his convictions for attempted murder must be vacated and the cause remanded for resentencing since theState failed to prove that defendant is guilty beyond a reasonable doubt.

We find defendant's argument unpersuasive. It is well established that in Illinois the doctrine oftransferred intent is applicable to attempted murder cases where an unintended victim is injured. Since the lawis so well established in Illinois, there is no need for this court to turn to Maryland law. Moreover, the evidencepresented at trial clearly establishes defendant's guilt beyond a reasonable doubt.

In People v. Hill, 276 Ill. App. 3d 683, 691 (1995), this court stated that the doctrine of transferredintent "remains alive and well." In Hill, this court found that the jury properly determined that the defendantshad the specific intent to kill Jose Tanon and, therefore, held that the defendants' intent to kill Jose transferred toElizabeth Perez when the bullet missed Jose and hit Elizabeth in the leg. Hill, 276 Ill. App. 3d at 689.

In People v. Swaney, 2 Ill. App. 3d 857, 859 (1971), the defendant argued that he intended to kill onlyVladmir Chuk and not his wife, Sophie Chuk. On appeal, the defendant argued that "there was no evidence ofintent 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." Swaney, 2 Ill. App. 3dat 858. The appellate court found that the evidence introduced at trial showed that the defendant "invaded thehome of the Chuk's [sic] for a criminal purpose while armed with a hunting knife which he usedindiscriminately in the darkness." Swaney, 2 Ill. App. 3d at 859. Since the evidence introduced was sufficient toprove all elements of attempted murder, the appellate court held that the jury was justified in finding that thedefendant was guilty beyond a reasonable doubt. Swaney, 2 Ill. App. 3d at 859.

In People v. Burrage, 269 Ill. App. 3d 67, 76 (1994), this court found that the evidence showed that oneof the defendants, Rozene Burrage had the intent to kill an individual named Andre, but she actually shot aninnocent three-year-old child, and under the doctrine of transferred intent the court held that the defendant'sintent to kill Andre was transferred to the three-year-old child. Burrage, 269 Ill. App. 3d at 76.

Accordingly, it is clear that the doctrine of transferred intent applies to situations where the victim isinjured 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.

Defendant asserts that the State failed to prove beyond a reasonable doubt that he committed firstdegree attempted murder. At best, defendant contends that the evidence presented at trial established that heintended to get "on that car," 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 thedriver. The State contends that evidence showed that defendant chased the driver of the gray vehicle and firedat least three shots at him from a deadly weapon. Based on this evidence, the State argues that it proved beyonda reasonable doubt that defendant specifically intended to kill his rival gang member.

The Illinois Supreme Court has held that "[a] criminal conviction will not be set aside unless theevidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant's guilt." People v.Collins, 106 Ill. 2d 237, 261 (1985). It is not the appellate court's duty to retry the case. Rather, we are to viewthe evidence in the light most favorable to the prosecution and determine whether any "rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt." People v. Collins, 106 Ill. 2dat 261, citing Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 573, 319, 99 S. Ct. 2781, 2789 (1979). It isthe jury's duty to determine whether the defendant specifically intended to kill his victim. People v. Starks, 190Ill. App. 3d 503, 510 (1989). The verdict will not be reversed unless it is against the manifest weight of theevidence. Starks, 190 Ill. App. 3d at 510, citing People v. Nicholls, 42 Ill. 2d 91, 95 (1969).

This court has held that "[a]lthough the intent to kill can be transferred, it must still be proven beyond areasonable doubt." People v. Homes, 274 Ill. App. 3d 612, 622 (1995). In order for the State to obtain aconviction of attempted murder, a specific intent to kill must be proven beyond a reasonable doubt. Homes, 274Ill. 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. Meyers, 83 Ill. App. 3d 1073, 1076 (1980). The intent to kill is a state of mind which, if not readilyadmitted, can be proven by presenting evidence of the surrounding circumstances and the character of theassault, including "the use of a deadly weapon [citation], and the firing of a gun at or towards another personwith either malice or a total disregard for human life." 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 aspecific intent to kill. Homes, 274 Ill.App.3d at 622. The specific intent to kill may be inferred so long as thesurrounding circumstances show that the defendant intended the wilfully committed act, "the direct and naturaltendency of which is to destroy another's life." People v. Migliore, 170 Ill. App. 3d 581, 586 (1988), citingPeople v. Coolidge, 26 Ill. 2d 533, 537 (1963). "The very fact of firing a gun at a person supports theconclusion that the person doing so acted with an intent to kill." People v. Thorns, 62 Ill. App. 3d 1028, 1031(1978), citing People v. Munoz, 44 Ill. App. 3d 339 (1976).

In the case at bar, defendant's intent to kill the driver of the four-door, gray vehicle can be inferred fromthe surrounding circumstances. At trial, Assistant State's Attorney Weiss testified that defendant was orderedby a fellow gang member to get "on that car," "that" being the car of the rival gang member. In response to thisorder, defendant admitted to jumping into his own car and chasing the gray, four-door vehicle while firing threeshots at the gray car. Regardless of whether an order to get "on that car" means to simply beat the driver or killthe driver, three undisputed facts remain: (1) defendant chased the gray car, (2) defendant believed the driver tobe a rival gang member, and (3) defendant fired multiple shots at the gray vehicle. Rival gang members areconsidered enemies. Further, defendant was chasing a person whom he assumed to be a rival gang member. These two facts, coupled with defendant's act of firing a gun, make it feasible for the jury to conclude thatdefendant intended to kill the driver of the gray car. Thus, in viewing the facts in the light must favorable to theState, we find that it was not unreasonable for the jury to have found that defendant possessed the specific intentto kill.

Defendant 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's trial counsel was incompetent. More specifically, defendant asserts that his trial counsel failed to present the testimony of alibi witness PatriciaHodges who was listed in defendant's answer to discovery. Defendant argues that the trial court should haveappointed independent counsel to represent defendant at a hearing on ineffective assistance of counsel eventhough defendant never explicitly alleged that his trial counsel was ineffective. Since Hodges was presented asa witness only at defendant's sentencing hearing, defendant contends that we should remand the matter forposttrial proceedings on counsel's ineffectiveness.

In Krankel, after trial, the defendant filed a pro se motion for a new trial alleging that defense counselfailed to introduce the defense of alibi and failed to investigate the defendant's whereabouts at the time the crimewas committed. Krankel, 102 Ill. 2d at 183. The Illinois Supreme Court noted that, in their briefs, both the Stateand the defendant's trial counsel agreed that the "defendant should have had counsel, other than his originallyappointed counsel, appointed to represent him at the posttrial hearing in regard to the allegation that he hadreceived ineffective assistance of counsel." Krankel, 102 Ill. 2d at 189. The Illinois Supreme Court agreed withthe defendant and the State and, therefore, remanded the matter for a new hearing on defendant's motion for anew 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's attorney cannot argue a motion, on behalf of the defendant, where thedefendant is claiming that his attorney was ineffective. To alleviate any potential bias, independent counselmust be appointed.

In People v. Jackson, 131 Ill. App. 3d 128, 137-38 (1985), the defendant and his attorney appeared incourt for the dual purposes of hearing the defendant's 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 hecomplained 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, thedefendant's doctor, to testify at trial. The defendant wanted his doctor called to the witness stand in order totestify that, at the time of the offense, defendant was in the doctor's office. Moreover, the defendant believesthat his doctor would have testified that due to his lack of physical strength, he could not have stolen thetelevision and microwave because he could not lift them. Jackson, 131 Ill. App. 3d at 140. When confrontedwith this allegation, the defendant's attorney told the trial judge that defendant's doctor was not called becauseafter he interviewed the doctor and his office staff he learned that the defendant could not be placed at thewitness' place of business at any relevant time. Jackson, 131 Ill. App. 3d at 138. Further, the defendant's trialcounsel stated that any testimony regarding the defendant's physical condition would have been cumulativeevidence. Jackson, 131 Ill. App. 3d at 138.

On appeal, the defendant argued that "where a defendant, in a post-trial motion, alleges the ineffectiveassistance of trial counsel, new counsel generally should be appointed for the purpose of conducting thehearing." Jackson, 131 Ill. App. 3d at 138. This court held that a defendant's right to independent counsel is nota per se rule. Jackson, 131 Ill. App. 3d at 138. In determining whether the defendant is entitled to independentcounsel after complaining, during posttrial proceedings, that his trial counsel was ineffective, the Jackson courtheld that the objective test set forth in People v. Johnson, 98 Ill. App. 3d 28 (1981), should be applied. Pursuantto Johnson, independent counsel should not be appointed if "defendant's claim is spurious or revolves simplyaround a matter of trial strategy or tactics." Jackson, 131 Ill. App. 3d at 139. However, independent counselshould be appointed if the facts show that the defendant's case may have been neglected. Jackson, 131 Ill. App.3d at 139.

In Jackson, the appellate court found that the trial court applied the Johnson test and reached the properconclusion. Jackson, 131 Ill. App. 3d at 140. The appellate court agreed with the trial court's conclusion thatthe doctor's testimony would have been "virtually nonprobative as an alibi." Jackson, 131 Ill. App. 3d at 140. Thus, the appellate court held "[t]he trial court determined the contention was spurious, a determination whichwas not manifestly erroneous and which we affirm." Jackson, 131 Ill. App. 3d at 140.

In People v. Williams, 224 Ill. App. 3d 517 (1992), the defendant asserted on appeal that he was deniedeffective assistance of counsel. Specifically, the defendant claimed that "the trial court failed to examine thereadily apparent ineffective assistance when defense counsel, at the post-trial hearing, revealed that he hadadditional witnesses who were not called at trial." 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 toconduct an examination of the trial counsel's performance sua sponte, as defendant claims is required underKrankel. Williams, 224 Ill. App. 3d at 523. The defendant in Williams relies on People v. Jackson to supporthis contention that the trial court should have applied the Johnson test in an effort to determine whetherindependent counsel should have been appointed. Williams, 224 Ill. App. 3d at 523.

The appellate court in Williams held that the case must be remanded for a hearing on the defendant'spossible ineffective assistance of counsel claim. The court based its decision on the fact that at the post-trialmotion the defendant's attorney revealed that critical alibi witnesses were not called at trial. The defendant'sattorney stated that the witnesses had been unavailable, however, the record is silent as to what efforts, if any, hemade to present them. Williams, 224 Ill. App. 3d at 524. Additionally, the appellate court noted that thedefendant 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 "the trial judge's strong comments tocounsel at the hearing indicate that he was made aware of counsel's possible neglect." Williams, 224 Ill. App. 3dat 524. The Williams court held that "[w]here there is a clear basis for an allegation of ineffectiveness ofcounsel, a defendant's failure in explicitly making such an allegation does not result in a waiver of a Krankelproblem." Williams, 224 Ill. App. 3d 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 withdrawwhich was denied, and defense counsel failed to make any effort to contact a possible key witness, the appellatecourt held that it was err to allow defendant's trial counsel to argue a motion based on allegations of her ownincompetence). After determining that the defendant did not waive the issue, the appellate court held that thedefendant's best possible defense consisted of alibi testimony given by witnesses who were not called to testify.Williams, 224 Ill. App. 3d 524. Therefore, the Williams court held that, out of "fundamental fairness," a furtherinvestigation of counsel's performance was needed and remanded the matter to the trial court for a determinationof whether the defendant's allegations of ineffectiveness either lacked substance or merely pertained to trialtactics. Williams, 224 Ill. App. 3d 524. The appellate court clearly stated that if the trial court found that trialcounsel must have neglected the defendant's case, then independent counsel must be appointed to arguedefendant's claim of ineffective assistance of counsel. Williams, 224 Ill. App. 3d 524.

In the case at bar, defendant did not file a pro se petition alleging ineffective assistance of counsel, nordid defendant write a letter to the trial judge making such a claim. However, in Williams, defendant's inactiondoes not result in waiver of this issue. In reviewing the facts at bar, we find the State's argument mostpersuasive. The State rightfully argues that the trial court did not err in not sua sponte conducting a hearingregarding the alleged ineffectiveness of defendant's trial counsel. Unlike Williams, in the case at bar, there is noclear basis for an allegation of ineffectiveness.

Defendant's defense depended on critical alibi testimony, and, therefore, defendant's mother testified asto her son's whereabouts at the time of the offense. According to her testimony, Patricia Hodges pickeddefendant up at school and brought him to the dollar store where he worked from 3 p.m. until 7 p.m. on the dayof the shooting. Perhaps defendant's attorney, as a matter of trial strategy, believed one alibi witness would besufficient to assure the jury that defendant was not guilty. Had no one been called to testify regardingdefendant's whereabouts, we would be more inclined to find that defendant's case had been neglected by hisattorney. Additionally, at the sentencing hearing, Patricia Hodges testified that she remembers having beensubpoenaed to testify at defendant's trial but that she could not remember why she failed to appear in court. Thus, unlike the defense attorneys in Williams and Jameson, defendant's attorney did take affirmative action tocompel Patricia Hodges' testimony. The fact that defendant's mother testified as an alibi witness and the factthat Patricia Hodges was subpoenaed to appear in court suggest that defendant's attorney was diligent in hisefforts to prepare defendant's case. Since a clear basis for an allegation of ineffectiveness of counsel does notexist, we cannot find that the trial court erred in failing to sua sponte examine whether defendant was providedwith effective assistance of counsel.

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 judgemade no specific findings concerning (1) the basis for ordering that his two 20-year sentences on counts one andtwo are to run consecutively or (2) the basis for ordering that his two 20-year sentences in the case at bar are torun consecutively with the sentence he received in an earlier case. Defendant assumes that his consecutivesentences were ordered based on either section 5-8-4(a) or section 5-8-4(h) of the Unified Code of Corrections(730 ILCS 5/5-8-4(a), (h) (West 1998)). Defendant argues that, under these provisions, questions of whetherthe events occurred in a single course of conduct or whether defendant was on bond at the time of the offensewere not alleged in the indictment or submitted to the jury for determination and, therefore, were not provenbeyond a reasonable doubt.

Issues involving substantial rights may be considered by a reviewing court even if not properlypreserved in the trial court. 134 Ill. 2d R. 615(a); People v. Brandon, 162 Ill. 2d 450, 457-58 (1994). As theimposition of an unauthorized sentence affects substantial rights, we will address the merits of defendant'sclaim. People v. Hicks, 181 Ill.2d 541, 545 (1998).

In the case at bar, at defendant's sentencing hearing, the State told the trial judge that one factor to beconsidered in determining defendant's sentence is that defendant shot the two children in the case at bar whilehe 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 ofCorrections.

On February 9, 1999, defendant was sentenced to two consecutive 20-year sentences on the two countsof attempted murder in the instant matter. Prior to the trial judge announcing defendant's sentence, the Stateargued that pursuant to "730 5/5-8-4," defendant should receive consecutive sentences. The State failed toarticulate which paragraph of section 5-8-4 of the Unified Code of Corrections it was asking the trial judge tofollow. The trial judge then ordered consecutive sentences and stated that his reasoning for doing so was that hewas obligated to so hold pursuant to statute. However, the trial judge never identified the particular statuteunder which defendant's consecutive sentences were ordered. Rather, he simply stated that since defendant wasfound guilty of two separate counts of attempted first degree murder with regard to two separate individuals, thecourt was obligated to order consecutive sentences. Lastly, the trial judge clearly stated that defendant'ssentence in the case at bar, 96 CR 15350, is to run consecutively with his sentence in the drug case, 96 CR12455.

A review of the order of sentence and commitment to Illinois Department of Corrections (sentencinginstrument) shows that defendant was sentenced to two consecutive 20-year terms on counts I and II. Thesentencing instrument also states that defendant's sentence is to run consecutively with his sentence in 96 CR12455. It is clear that the two consecutive 20-year terms in case 96 CR 15350 were imposed pursuant to section5-8-4(a) of the Uniform Code of Corrections and those terms were to run consecutively to his 8-year sentence incase 96 CR 12455 pursuant to section 5-8-4(h) of the Uniform Code of Corrections. In pertinent part, section 5-8-4(a) of the Unified Code of Corrections provides:

"(a)***The court shall not impose consecutive sentences for offenses which were committed as part of a single course ofconduct during which there was no substantial change in the nature of the criminal objective, unless: 

(i) one of the offenses for which defendant was convicted was first degree murder or a Class X or Class 1 felony and thedefendant inflicted severe bodily injury [.]" 730 ILCS 5/5-8-4(a)(West 2000).

Section 5-8-4(h) provides the following:

"If a person charged with a felony commits a separate felony while on pre-trial release or on pretrial detention in a county jail facility or county detention facility, the sentences imposedupon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered." 730 ILCS 5/5-8-4(h)(West 1998).

In Apprendi, the United States Supreme Court held that " 'under the Due Process Clause of the FifthAmendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than priorconviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to ajury, and proven beyond a reasonable doubt.' " Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at23550, 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 "[i]t is unconstitutional for a legislature to remove from the jury theprescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts mustbe established by proof beyond a reasonable doubt." Apprendi, 530 U.S. 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2355.

The State agrees with defendant's interpretation of Apprendi; the United States Constitution requiresthat any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the factof prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. However, the Statecontends that defendant's consecutive sentences need not be analyzed under Apprendi because defendant wasnot sentenced beyond the prescribed statutory maximum.

The Illinois Supreme Court recently addressed the constitutionality of consecutive sentences underApprendi. People v. Wagener, No. 88843 (Ill. June 1, 2001). The court held that because consecutivesentences remain discrete sentences, "a determination that sentences are to be served consecutively cannot runafoul of Apprendi, which only addresses sentences for individual crimes." Wagener, No. 88843, slip op. at 15. Apprendi concerns are not implicated by consecutive sentencing," and, thus, we must reject defendant'sargument. Wagener, No. 88843, slip op. at 14. Each of defendant's individual sentences was within thestatutory range established by the legislature and are therefore proper under Apprendi.

For the foregoing reason, we affirm defendant's convictions for attempted first degree murder and theorder providing that these sentences shall run consecutively. Finally, we affirm the trial court's decision to orderthat defendant's two 20 year sentences in the case at bar run consecutively with his sentence on the drug case, 96CR 12455.

Affirmed.

QUINN, P.J., and THEIS, J., concur.