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FOURTH DIVISION
September 22, 2005

No. 1-04-1362

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Tramel Foreman was found guilty of first degree murder. The jury additionally found that during the commission of the offense, defendant personally discharged a firearm that proximately caused the victim Larry Lowery's death. The trial court sentenced defendant to two concurrent 50-year prison terms for two counts of first degree murder. On appeal, defendant contends (1) that his trial counsel was ineffective in failing to question potential jurors concerning their understanding of the principles set out in People v. Zehr, 103 Ill. 2d 472 (1984), and Supreme Court Rule 431(b) (177 Ill. 2d R. 431(b)) ; (2) that the trial court's supplemental instructions to the deadlocked jury were coercive; (3) that section 5-8-1 (a)(1)(d)(iii) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West 2002)) (hereinafter referred to as the firearm enhancement provision), which provides that an additional term of 25 years to life shall be added to a defendant's sentence if, during the commission of his or her crime, he or she discharged a firearm which caused the death of another, should be interpreted as applying only when the discharge of a firearm causes the death of someone other than the victim; (4) that the firearm enhancement provision is unconstitutional because it allows for additional punishment for an inherent element of the original offense of murder; (5) that the firearm enhancement provision is unconstitutional because it does not bear a reasonable relationship to the public interest it seeks to protect; (6) that defendant was erroneously sentenced for two counts of first degree murder in violation of the one-act, one-crime doctrine; (7) that defendant is entitled to an additional day of credit against his sentence; and (8) that the trial court violated supreme court Rule 431 (a) (177 Ill. 2d R. 431(a)) in failing to inform potential jurors of the principles set out in Zehr and Rule 431(b).

Defendant was indicted on 12 counts of first degree murder. The case proceeded to trial on counts IX and X. Count IX alleged that defendant, without lawful justification, intentionally or knowingly shot and killed the victim with a firearm and during the commission of the offense personally discharged the firearm that proximately caused the victim's death. Count X alleged that defendant, without lawful justification, shot and killed the victim with a firearm, knowing that such shooting created a strong probability of death or great bodily harm to the victim, and during the commission of the offense personally discharged the firearm that proximately caused the victim's death.

During jury selection, on at least two occasions, the trial court asked the potential jurors, as a group, if each of them could sign a guilty verdict form if the State were to meet its burden of demonstrating defendant's guilt beyond a reasonable doubt. The court further asked the potential jurors, as a group, if each of them could sign a not-guilty form if the State did not meet its burden of demonstrating defendant's guilt beyond a reasonable doubt. The court individually questioned several jurors who expressed doubt in their ability to do either the former or the latter. In questioning one potential juror who expressed doubt in her ability to sign a not-guilty verdict form, the court asked the juror "Do you understand that [defendant is] presumed innocent of the charges?" The court questioned each member of the venire regarding the member's occupation and place of residence. The court further inquired of each member whether he or she had previously been a member of a jury, whether he or she had been or whether a close friend or family member had been the victim of a crime, and whether he or she had ever been involved in a lawsuit. Though they were given an opportunity to ask the venire members questions, both the State's Attorney and defense counsel declined. Defense counsel struck three venire members. After empaneling the jury, the trial court informed its members that, "[w]hen the State has completed their evidence, the defense may proceed should they choose to do so, again bearing in mind they don't have a burden to present evidence."

At trial, Lance Davis, the victim's cousin, testified that at 11:15 p.m. on September 26, 2001, he drove to the intersection of 49th and Michigan and parked at a church on the corner. Lance got out of his car and walked toward several men who were engaged in a physical fight across the street. As he was walking toward the fight, Lance noticed defendant sitting in the driver's seat of a tan station wagon parked down the street. When Lance reached the fighting men, he joined the fight. Lance testified that defendant then drove to the location of the fight and yelled to Kevin Davis, one of the participants in the fight, to get into the car. Kevin got into the backseat of the car on the passenger side. A passenger in the front seat then leaned back in the seat as defendant reached across the passenger and fired a gun two or three times out of the passenger-side front window. Defendant then drove away toward 49th Street and Wabash. At the police station in the early morning of September 27, 2001, Lance identified photographs of Kevin and defendant.

Kevin, defendant's cousin, testified that on the evening of September 26, 2001, he drove to 49th and Michigan to visit his girlfriend. As Kevin was walking down the street, several men, including Lance, attacked Kevin and began to beat him. As he was being beaten, defendant drove up to the fight in his tan station wagon. Defendant's girlfriend was sitting in the front seat of the car, but at trial, Kevin could not recall whether another passenger was also in the car. Kevin got into his cousin's car through the back passenger-side door. As he was getting into the car, Kevin testified, he heard shots being fired behind him. Kevin testified that defendant had not fired the shots. At trial, Kevin admitted that he spoke with police officers following the shooting but did not recall telling the police that he saw defendant's girlfriend, who was in the front passenger seat of the car, lean back and defendant fire a gun at the fighting men or that, as they drove away, defendant had said that he had "let out a couple of shots off and that [defendant] got at least one" of the fighting men.

Detective Michael Rose was assigned to the shooting in the early morning of September 27, 2001. Rose testified that he interviewed Kevin, who stated that, after he dove into the backseat of defendant's car, defendant's girlfriend, who was in the passenger seat of the car, leaned back and defendant raised his right arm and fired three or four shots from a black handgun out of the front passenger window. Kevin told Rose that, as they were driving away from the scene, defendant told him that he had let off a couple of shots and that he "got at least one" of the fighting men.

The victim's cousin, Gregory Curtis, testified that when he arrived at 49th and Michigan on September 26, 2001, the fight was already in progress. Curtis testified that he had known defendant for 10 years. Curtis, who did not join the fight, had watched defendant drive to the scene of the fight. Curtis testified that Kevin got into the backseat of the passenger side of defendant's car. Defendant's girlfriend was in the front passenger seat of the car while a woman named Sharon was in the backseat. After Kevin entered the car, Curtis saw defendant's girlfriend lean back and heard two or three gunshots. Curtis and the other men dove to the ground. After defendant drove away toward Wabash, the men realized that the victim had been shot.

James Shader, a police officer employed by the forensic services division of the Chicago police department, was assigned to the shooting in the early morning of September 27, 2001. Shader first reported to Cook County Hospital, where the victim had been taken, and learned that the victim had died. Shader proceeded to the crime scene, where he was unable to find a gun or shell casings.

Dr. Scott Denton, a forensic pathologist and deputy medical examiner, testified that the cause of the victim's death was a gunshot wound to the chest.

After the State presented its case-in-chief, the defense rested without calling any witnesses. The trial court instructed the jury that defendant had been charged with first degree murder and that the State had additionally alleged that defendant had personally discharged a firearm that proximately caused the victim's death. The court further instructed the jury:

After several hours of deliberation, the jury indicated to the court that it was deadlocked. The court instructed the jury to continue deliberating. Shortly thereafter, the jury again indicated that it was deadlocked and that one juror had expressed an unwillingness to sign a guilty verdict form under any circumstances because of her religious beliefs. The trial court admonished the jury that it was not being asked to judge the defendant but to rule on the facts of the case. An hour later, the jury returned a guilty verdict and found that the State had proven that during the commission of the offense defendant had personally discharged a firearm that proximately caused the victim's death.

Defendant's motion for a new trial, in which he alleged that he had not been proven guilty beyond a reasonable doubt, and supplement to his motion for new trial, in which he alleged that the firearm enhancement provision was unconstitutional, were denied. After considering arguments in aggravation and mitigation, the court sentenced defendant to a term of 50 years in prison on count IX and a second term of 50 years in prison on count X and ordered that the terms be served concurrently.

We will first address defendant's related first and final contentions. Defendant first contends that his trial counsel was ineffective in failing to question potential jurors during voir dire concerning the principles articulated in Zehr and Rule 431(b). The State replies that, having failed to object to counsel's performance at trial or in a posttrial motion, defendant has waived this contention. The State further contends that defendant was not prejudiced by counsel's failure and that any error was cured by the instructions given to the jury prior to deliberation.

Regarding the State's claim that this contention is waived, we note that "[a]n attorney cannot be expected to argue his own ineffectiveness. That is why, for example, trial counsel's failure to assert his own ineffective representation in a posttrial motion does not waive the issue on appeal." People v. Lawton, 212 Ill. 2d 285, 296 (2004), citing People v. Parker, 288 Ill. App. 3d 417, 421 (1997). Accordingly, we find that defendant has not waived the issue of ineffective assistance on review.

A defendant alleging ineffective assistance of trial counsel must demonstrate that counsel's representation was objectively unreasonable and that but for counsel's errors, there was a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 695, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068-69 (1984). A failure to satisfy either prong of the test articulated above precludes a finding of ineffective assistance. People v. Patterson, 192 Ill. 2d 93, 107 (2000).

In support of his contention that trial counsel was ineffective, defendant relies on Zehr, in which the supreme court held that the trial court abused its discretion in refusing defense counsel's request, during voir dire, to ask the potential jurors questions concerning the State's burden of proof, the right of the defendant not to testify and the presumption of innocence. The court stated:

In 1997, the supreme court amended Rule 431 to ensure compliance with the requirements of Zehr. 177 Ill. 2d R. 431, Committee Comments. Following the amendment, Rule 431(b) requires that, if requested by the defendant, the court shall ask the potential jurors, individually or as a group, whether they understand the Zehr principles. 177 Ill. 2d R. 431(b).

In this case, we cannot say that trial counsel was ineffective in failing to question potential jurors regarding the principles articulated in Zehr. This case was not closely balanced. Lance and Curtis each testified that on the evening of September 26, 2001, defendant drove to the scene of the fight, Kevin got into the backseat of defendant's car and the front-seat passenger leaned back while defendant fired shots into the crowd of fighters. While Kevin testified at trial that defendant had not fired shots at the crowd, Officer Rose testified that when he initially interviewed Kevin, Kevin's account of the incident was consistent with Lance