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FIFTH DIVISION
September 13, 2002

1-00-0177

In a 43-count indictment, defendant Danniel Henney and hiscodefendant Dino Dicorpo were charged with first degree murder,aggravated arson, burglary and residential burglary. Defendant'scase was severed from that of his codefendant and separate trialswere held.⁽¹⁾ Following a jury trial, defendant was convicted ofsix counts of first degree murder and one count each of burglary,arson and aggravated arson. On the murder convictions, defendantwas sentenced to natural life in prison. He was also sentencedto a concurrent 7-year prison term on his burglary conviction anda consecutive 30-year term on his aggravated arson conviction. On appeal, defendant contends that the trial court erred: (1) inrefusing to qualify a defense witness as an expert; (2) inallowing the State to present improper rebuttal testimony; (3) infailing to order sua sponte a hearing into defense counsel'seffectiveness at trial; (4) in imposing a consecutive sentence onhis aggravated arson conviction; and (5) in failing to order suasponte a fitness hearing. Defendant does not challenge thesufficiency of the evidence in support of his convictions. Forthe reasons set forth below, we affirm the judgment of the trialcourt. Defendant's contention regarding a fitness hearing willbe determined in an unpublished portion of this opinion.

BACKGROUND

Defendant's convictions arose from a fire set in the earlymorning hours of September 15, 1997, on a back porch of theapartment building located at 2322 South 61st Avenue in Cicero. The fire resulted in the death of Anthony Poull (Anthony) and hisfive children. In a written statement defendant gave to anassistant State's Attorney on December 23, 1997, he explainedthat on the night of the fire, he had been with Dicorpo, JasonLaurie and Peter Fisher at Laurie's home located in Cicero. After the four "did some drinking" and smoked some "weed," theyleft Laurie's home and drove around the area looking forsomething to steal. Eventually, the four pulled into an alleybehind some houses located on 61st Avenue. Defendant and Dicorpothen got out of the car, jumped a fence and unsuccessfullyattempted to open the window of a garage in order to enter andsteal things. Upon seeing the rear door of the apartmentbuilding open, the two passed through the door, which led to aback porch containing boxes of clothes and a clothesline withitems hanging on it. When defendant and Dicorpo failed to find"anything good to steal," defendant dropped a cigarette he hadbeen smoking near some boxes of clothes and Dicorpo, using alighter, lit the items hanging on the clothesline on fire. Thetwo then returned to the car and informed Laurie and Fisher thatthey had started a fire. The four drove around the block a fewtimes until they saw the fire "get bigger and bigger." Afterreturning to Laurie's home, defendant heard sirens and fellasleep. The next morning, defendant learned that five childrendied in the fire.

Prior to trial, defendant filed a motion to quash arrest andsuppress statements. In the motion, defendant claimed thatbecause of his illiteracy and lack of education, he did notunderstand his Miranda rights as they were explained to him, andtherefore, his statements to police were not knowingly andwillingly made.

At the hearing on the motion, the defense called VivianLiese, who was an educational consultant and diagnostician. Shestated that her background had been in learning disabilities andthat she had worked with people having learning problems.

[Unpublished material under Supreme Court Rule 23 removed here.]

Liese stated that defendant would have difficulty readinganything beyond a third-grade level and opined that thereadability of the Miranda warnings and his statement toinvestigators were at a mid-seventh-grade level. She also statedthat even if Miranda warnings were read to defendant, he wouldhave a difficult time understanding them. Liese stated furtherthat given the readability of defendant's written statement,defendant would have difficulty understanding it, even if it wereread to him.

The State rebutted Liese's testimony with that of Dr. PaulFauteck, a senior staff psychologist with the department offorensic clinical services of the circuit court of Cook County. Following the hearing, defendant's motion to suppress was deniedand his statement was admitted as substantive evidence at trial. The denial of the motion to suppress has not been raised as anissue on appeal.

At trial, Gary Gonzalez, a firefighter with the Cicero firedepartment, testified that upon arriving at the scene, he wasinformed that five children were trapped on the second floor ofthe two-flat apartment building. At the time, Gonzalez saw a"huge amount of fire," which was predominately in the rear of thebuilding. Gonzalez testified that he entered the burningbuilding through a second-story window, where he found all fiveof the deceased Poull children. Without objection, Gonzaleztestified through the use of photographs as to the identify ofthe five children and their locations within the apartment at thetime of their deaths.

[Unpublished material under Supreme Court Rule 23 removed here.]

Peter Fisher testified that he had known defendant for aboutfive years and had met him through Jason Laurie. On the night ofSeptember 14, 1997, Fisher was at Laurie's home, where he sawdefendant, Dicorpo and Laurie ingest cocaine and smoke marijuana. After drinking some beer, Fisher, defendant, Dicorpo and Lauriedecided to drive around Cicero. The four went "driving around"for about a half hour, before turning into an alley. Dicorpothen stated, "Stop the car." Dicorpo and defendant, who had beenriding in the backseat, then got out of the car and walked down agangway before Fisher lost sight of them. About 15 minuteslater, Fisher saw a garage door open, and defendant and Dicorpoemerged from the garage in a black Nissan. Dicorpo, who wasdriving, instructed Fisher and Laurie to follow him anddefendant. After arriving back at Laurie's house, defendant andDicorpo removed the radio from the Nissan and the two took it toa side street in Oak Park and "dumped" it there.

After abandoning the car, Dicorpo and defendant got into thebackseat of the car Laurie was driving and the four continued toride around Cicero. At one point, Laurie turned down an alley onthe 2300 block of South 61st Avenue and Dicorpo instructed him tostop the vehicle. Dicorpo and defendant then exited the car andwalked into a gangway. Fisher believed that the two wouldattempt to steal things from the garage, as they had previouslydone.

About 15 minutes later, Fisher saw defendant and Dicorporunning toward the car. The two "jumped" in while both yelled,"Go, go, go, go." When asked by Laurie what was wrong, defendantand Dicorpo, at the same time, stated they had lit a "cover" onfire. The four then drove around the block three times untilthey saw flames coming out of a window. After returning toLaurie's house, the four got out of the car and saw fire truckscoming down the block. Upon seeing this, defendant stated,"Nobody better not say nothing." Fisher stated that he did nottell anyone about what had occurred until he was interviewed bydetectives in December of 1997.

On cross-examination, Fisher denied taking any cocaine andsmoking any marijuana on the night in question, but admitted tobeing "pretty intoxicated" from drinking. Fisher also testifiedthat he had not been charged in connection with the fire thatclaimed the lives of the six members of the Poull family.

Jason Laurie testified to many of the same facts as Fisherregarding the events prior to defendant and Dicorpo exiting thecar in the alley behind the 2300 block of 61st Avenue. Lauriealso testified that about 15 minutes after defendant and Dicorpogot out of the car and went through the gangway, they emergedrunning from the gangway, "jumped" into the car and stated, "Go,go, go." After pulling away from the scene, Laurie asked whathad occurred, and they responded that they had started a fire. Not believing them, Laurie drove around the block three times. On the first trip around the block, Laurie did not see anythinghappening to the building, on the second, he saw a glow in theback window and on his final trip, he saw flames coming out ofthe window on the back porch of the house. Upon arriving back athis house, Fisher saw fire trucks and was instructed by defendantnot to say anything regarding the events that had occurred thatevening. Around 11:30 a.m. on December 22, 1997, police arrivedat Laurie's home, which he shared with Dicorpo, and asked to talkto them.

On cross-examination, Laurie admitted to ingesting cocaineand smoking marijuana on the night in question, but denied thatit affected his ability to remember things. He further admittednot contacting the authorities regarding the fire. Laurie alsotestified that he had not been charged with any crimes relatingto the night in question.

Patricia Brasil testified that in September 1997, she wasliving in Cicero at 2626 South 59th Avenue. At the time, sheowned a black Nissan. Brasil testified that she saw it around 10 p.m. the evening of September 14, 1997, in her garage, and thatit was missing the following morning. Two days later shereceived a telephone call from the Oak Park police informing herthe vehicle had been found on Lombard Avenue in Oak Park. Afterretrieving the car, Brasil discovered that the car radio, a pagerand compact discs had been removed from it.

Christopher Wilson, who was incarcerated at the time ofdefendant's trial on a felony retail theft conviction, testifiedthat he was a friend of defendant's. Wilson stated that inNovember 1997, he had a conversation with defendant, during whichhe asked defendant why he had not seen him in several days. Defendant informed Wilson that he and Dicorpo had started thefire that had killed the five Poull children.

Assistant State's Attorney David Sabatini testified that onDecember 23, 1997, he interviewed defendant at the Cicero policestation. Sabatini read defendant his Miranda rights, whichdefendant said he understood. After defendant told Sabatini thathe and Dicorpo set the fire, defendant agreed to give a writtenstatement. Sabatini printed out a four-page handwrittenstatement, which he then read to defendant. The contents of thisstatement have previously been set out. Defendant signed thefirst and last pages of the statement and initialed every pageand every correction. The statement was admitted into evidence. Sabatini testified that defendant was nervous, but alert, duringthe interview and knew he was arrested because of the fire thatkilled the children.

James Leahey, a fire inspector with the Illinois State FireMarshal's office, testified that he investigated the cause of thefire in question. Based upon the presence of extensive burnpatterns, Leahey concluded that the fire had originated in thearea of the first-floor back porch and had been caused by theapplication of an open flame to some ordinary combustibles andbuilding materials. Leahey also testified that an accelerant-sniffing dog was brought in and that it did not alertinvestigators as to the presence of any accelerants on thepremises. Chemical analysis tests on debris from the fire scenedid not show the presence of any accelerants. On cross-examination, Leahey admitted that if an accelerant were used tostart a fire, it could be totally consumed in the fire and leaveno trace.

The parties stipulated that a burned-up lighter fluid canand a lighter recovered from the scene had no latent fingerprintssuitable for comparison on them. Upon admission of its exhibitsinto evidence, the State rested its case.

At trial, Liese, who was called to testify on defendant'sbehalf, testified that she was an educational diagnostician. Asfor her educational background, Liese testified that she hadreceived a bachelor's degree from the University of Illinois, amaster's degree in learning disabilities from NorthwesternUniversity in 1974, and had completed her course work on herdoctorate in educational psychology at the University of Chicagoand was writing her dissertation.

Regarding her work experience, Liese stated that afterreceiving her master's degree, she had worked for a short time asa diagnostician at Mercy Hospital, where she evaluated childrenand adults for learning disabilities. Liese then worked forthree years at a private therapeutic school with severelyemotionally disturbed and learning disabled children. Followingthis position, Liese entered private practice, where she was atherapist with children and adults having learning problems. Liese subsequently joined the staff at Northwestern Hospital,where she was eventually put in charge of all inpatient andoutpatient evaluations. During the time of her employment withNorthwestern Hospital, Liese also worked in private practice as adiagnostician, evaluating children and adults who wereexperiencing learning problems. Liese testified that she hadalso served as a special education consultant to the NorthwesternLaw School's legal aid clinic, where she taught law students toadvocate for special education rights for public school students.

Liese stated that she had supervised psychologists andpsychiatrists, who were on rotation at the University of Chicagoin the child and adolescent psychiatry department, in evaluatingstudents with learning disabilities and emotional and cognitivedeficits. Liese stated further that she had been working full-time for about 19 years evaluating and assessing people forlearning disabilities.

After defense counsel tendered Liese as an expert in thefields of educational evaluation, learning disability consultingand intelligence measurement, the State established that Liesehad no forensic clinical psychological training and was not anexpert in the field. Liese admitted that she was not licensed bythe State of Illinois to do clinical psychology and stated thather research with respect to her master's and doctoral work dealtwith gender-related differences in the development of youngchildren. Liese stated that she was an expert in the field oflearning disabilities, but not an expert in forensic psychology. With respect to the work she had done at Northwestern University,Liese testified that none of it related to whether someone couldunderstand Miranda warnings. Liese also stated that she hadpreviously testified only twice as an expert in court and thisconcerned whether someone understood Miranda rights. Liesetestified that a person could be placed in a special educationclass because of behavioral and emotional problems. Liese didnot testify during the voir dire at trial as to her background inadministering I.Q. tests.

After both sides completed the voir dire, the jury and Liesewere excused from the courtroom. Defense counsel then said, "Ithink she has been qualified as having knowledge superior to thatof the triers of fact in the field of educational evaluation,intelligence measurement and other areas of education measurementand that's all that the case law requires."

The State first objected that Liese was not qualified as anexpert in educational evaluation. The following was then stated.

"THE COURT: Let me just stop you for a minutebecause that's what I thought this witness was beingoffered for but [defense counsel] is not indicatingthat he is offering her for that as an expert. He isoffering her as someone who has an education in thisfield that may be beyond the normal course.

[THE PROSECUTOR]: There hasn't been any showingthat any information or knowledge of education,training that she has will in any way assist this trierof fact in assessing the intelligence level of thisdefendant. There has been no showing whatsoever. There has been no showing that she's done any type ofanalysis testing, surveying, processing, intellectualsurveys. *** To hold herself out to this jury that sheis an expert in intelligence measurement *** [w]hichgoes to the core of [defense counsel's] defense thatthis man did not understand his Miranda Warnings, thepurpose of Mr. Sabatini, what a lawyer is, all of thatcross examination that we listened to last Fridayafternoon.

THE COURT: But he is not offering her as an expert inthat.

[THE PROSECUTOR]: Well, then what is she doing here?

THE COURT: He is offering her as a witness who hasconducted some sort of interviews with this particularindividual, and based on her educational background,what she believes, but I don't think she is beingoffered as an expert. There is a difference.

[THE PROSECUTOR]: What she believes about hiseducational level is immaterial.

***

[DEFENSE COUNSEL]: Her education and trainingafter twenty years of experience in evaluating childrenand young adults as to their educational abilities andher course work qualified her to have a superiorknowledge in the field of measuring educational levels,reading abilities, understanding of reading abilities,that is superior to the average person who wouldcomprise the trier of fact, that being the jury andthat, I believe, is all that's required of a person tobe an expert.

THE COURT: Well, no, see I don't agree with that. That's where you have lost me. I don't think there isa basis right now for her to be offered as an expert inthese fields as far as this criminal statement andthese Miranda Warnings. She has no background inpsychology. She has no background in clinicalpsychology. She has no background in forensic clinicalpsychology. She is not a licensed practitioner ofpsychology within the State of Illinois, so those areasshe certainly can't be offered as an expert in any ofthose areas.

[DEFENSE COUNSEL]: I am not --

THE COURT: I am trying to carve out an opportunityfor your witness to testify based on a conversation shemay have had with [defense counsel][sic], but I don'tbelieve that she can be presented to this jury as anexpert. I don't think she can be presented to thisjury much more than what you have presented, that's whoshe is, and she is giving basically a lay opinion,based on her education but not an expert opinionbecause I don't believe that there is sufficientevidence to support her giving that opinion. I dobelieve you have a right to call her, but under certainparameters."

The State objected to Liese's testifying as an expert. Finding that Liese was not qualified to testify as an expert inthe fields advanced by defense counsel, the trial court allowedher to testify as a layperson. Liese was permitted to testifythat she had given defendant a series of standardized tests. She"evaluated his intelligence, his ability to problem solve, thinkand process information. *** [She] evaluated his memory in termsof his short-term memory and long-term memory, *** in terms ofhow he processes information through his ears ***." She alsotestified that she measured "his verbal comprehension ability,*** his perceptional organization, *** his freedom fromdistractibility, *** his ability to use global reasoning, hisability to discern essential from non-essential details, hisability to use divergent thinking, conceptualize verbalconcepts." On redirect, Liese testified, "I gave him a number ofvocabulary measures, both receptive and expressive. I had himdefine vocabulary terms[.] *** I had him read words, read wordswith understanding, read sentences with understanding and all ofthose scores were consistently the same." Liese concluded thatdefendant's ability to understand spoken words was at a second-to third-grade level. Liese was precluded from testifying to theactual scores defendant obtained on the tests, his I.Q. and hisreading level. Defense counsel told the trial court that he wasnot seeking to introduce Liese's testimony as to the level of thelanguage used in the Miranda warnings.

On cross-examination, Liese testified that the tests shenormally administered were not in a forensic setting and were notgiven to inmates. She further testified that she did notnormally test people for the purposes of testifying in court andthat people being tested who had been charged with a crime mighthave a motivation to malinger. On redirect examination, Liesetestified that by giving a variety of different tests whenevaluating a defendant's vocabulary, the administrator of thetests can get "consistency of cross results," which would controlpossible malingering. Liese also stated that she did not observeany malingering on defendant's part with respect to his testresults.

After the defense rested, the State called Dr. Fauteck inrebuttal to testify as an expert in the field of forensicpsychology. Dr. Fauteck testified that in April 1999, heexamined defendant for the purpose of determining defendant'sintellectual functioning. During the examination, Dr. Fauteckspoke with defendant and gave him a series of tests. Dr. Fauteckconcluded that defendant did not have any substantial impairmentin his attention concentration and memory. In Dr. Fauteck'sopinion, defendant had not been forthcoming about hisintellectual abilities, and he concluded that defendant's overallfunctioning was at the low average range. He testified thatdefendant's I.Q. had been measured several times and that theresults were between 68 and 72, which were consistent withLiese's testimony at the motion to suppress. Dr. Fautecktestified further that defendant had mentioned in passing that hehad some coaching on how to "act crazy" for examiners. Withrespect to the statement defendant gave police, Dr. Fauteck wasof the opinion that defendant would have had "no difficulty"understanding the statement if it were read to him.

After hearing closing argument and being instructed as tothe law, the jury found defendant guilty of six counts of firstdegree murder, burglary, arson and aggravated arson. Defendantwas sentenced and this appeal followed.

ANALYSIS

I. Defendant's Expert

Defendant first contends that the trial court erred in notallowing Liese to testify as an expert at his trial. He arguesthis refusal denied him an opportunity to contest the reliabilityof his confession. He asserts that Liese's education andpractical experience in measuring intellectual functioning andlearning levels in both children and adults afforded her thespecialized knowledge sufficient to justify qualifying her as anexpert in educational assessments.

The determination as to whether an individual is an experton a particular subject is within the trial court's sounddiscretion. People v. Miller, 173 Ill. 2d 167, 186 (1996). Absent an abuse of discretion, that determination will not bereversed on appeal. People v. Eyler, 133 Ill. 2d 173, 212(1989). It is proper to allow a person to testify as an expertif the experience and qualifications of that person give him orher knowledge that is not common to laypersons and where thetestimony will aid the trier of fact in reaching its conclusions. Miller, 173 Ill. 2d at 186. There is no precise requirement asto how an expert acquires skill or experience. People v. Novak,163 Ill. 2d 93, 104 (1994). The expert may gain his or herknowledge through practical experience, scientific study,education, training or research. Miller, 173 Ill. 2d at 186. The burden is upon the proponent of the expert's testimony toestablish the qualifications of the expert witness. Novak, 163Ill. 2d at 104.

We note that at trial, defense counsel offered Liese as apurported expert in the fields of educational evaluation,learning disability consulting and intelligence measurement. Onappeal, defendant only contests the trial court's ruling withrespect to her ability to testify as an expert in the field ofeducational assessments. Defendant argues that he was prejudicedby the trial court's refusal to allow Liese to testify as anexpert. He asserts that because Liese was precluded fromtestifying as to the results of the tests she had administeredand the readability level of his confession, he was deprived ofhis right to contest the reliability of his confession. SeePeople v. Jefferson, 184 Ill. 2d 486, 498 (1998).

The record shows that defense counsel's voir dire of Lieseat trial was markedly less extensive than that conducted at themotion to suppress. The record supports the trial court'sfinding that Liese's credentials, as set forth in the voir direat trial, did not qualify her as an expert on the measurement ofintelligence or on the "readability" of either the Mirandawarnings or the statement itself. The State argues that Liese'svoir dire similarly supports the trial court's finding that Liesewas not an expert in the field of educational assessment. In thealternative, the State, both at trial and on appeal, argues thatLiese's "educational assessment" of defendant was not relevant tothe issues in this case. It notes that defense counsel did notattempt to use Liese's testing at trial to question whetherdefendant could understand the Miranda warnings. As to the"readability" of defendant's statement, the State and the trialcourt noted that it was uncontroverted that the statement waswritten by an assistant State's Attorney, not defendant, and thatthe statement was read to defendant.

We agree with defendant that the trial court erred in notallowing Liese to testify as an expert in educationalassessments. It is true that much of Liese's education and workexperience, such as her work with emotionally disturbed childrenand consulting with Northwestern Law School's legal clinic, isunrelated to educational assessments. However, Liese testifiedat trial that for 19 years, she had evaluated and assessed peoplefor learning disabilities. Clearly, after 19 years of such work,Liese possessed knowledge and experience beyond that of alayperson with respect to educational assessments.

Despite the presence of an error at trial, a criminalconviction may still be affirmed where "the reviewing court isable to conclude, upon examination of the entire record, that theerror was harmless beyond a reasonable doubt." People v. Howard,147 Ill. 2d 103, 148 (1991). "In order for an error to be heldharmless, a reviewing court must be satisfied beyond a reasonabledoubt that the error did not contribute to the defendant'sconviction." People v. St. Pierre, 122 Ill. 2d 95, 113-14(1988).

Although Liese was precluded from testifying as to thereadability level of defendant's statement and his test scores,she was permitted to testify that defendant's spoken vocabularywas that of a second- or third-grader. In reliance upon thistestimony, defense counsel challenged the jurors during closingargument to read defendant's statement and determine forthemselves whether a person with defendant's mental capacitywould be able to understand the document if it were read to him. The jury members had defendant's statement with them during theirdeliberations and this was the best evidence upon which to make adetermination as to whether the content of the statement wasprovided by defendant or Sabatini. Having heard Liese'stestimony regarding defendant's diminished vocabulary level anddefense counsel's closing argument, the jury was keenly awarethat the reliability of defendant's statement was at issue. Moreover, even if Liese had been permitted to testify as anexpert, it would not be proper for the jury to give her "expert"testimony more weight than her layperson testimony. People v.Cloutier, 156 Ill. 2d 483, 508 (1993). The court in Cloutierrelied upon the committee comments to Illinois Pattern JuryInstructions, Criminal, No. 3.18 (3d ed. 1992), "Weighing ExpertTestimony," which recommends that no instruction be given on thissubject. Finally, given the overwhelming evidence in support ofdefendant's conviction, which included the testimony of PeterFisher and Jason Laurie, both of whom were with defendant on thenight in question, we find beyond a reasonable doubt that thetrial court's failure to allow Liese to testify as an expert didnot contribute to defendant's convictions.

[Unpublished material under Supreme Court Rule 23 removed here.]

II. Improper Rebuttal Testimony

Defendant contends next that he was denied a fair trialbecause the State was permitted to present the rebuttal experttestimony of Dr. Fauteck. Defendant concedes that his trialcounsel's only objection to Dr. Fauteck's testimony concerned hisopinion that defendant was capable of understanding theconfession when it was read to him. He did not object to Dr.Fauteck's testimony regarding defendant's intellectualfunctioning or possible malingering. We choose to address thisissue because it arguably implicates whether defendant received afair and impartial trial. People v. Miller, 302 Ill. App. 3d487, 495 (1998).

Rebuttal evidence is that which is offered in order toexplain, repel, contradict or disprove evidence presented by theopposing party. People v. Robles, 314 Ill. App. 3d 931, 937(2000). It is left to the sound discretion of the trial courtwhether to allow rebuttal evidence, and absent a clear abuse ofthat discretion resulting in a manifest injustice to thedefendant, the trial court's determination will stand. People v.Thomas, 217 Ill. App. 3d 698, 703 (1991).

Defendant argues that because the trial court precludedLiese from testifying about her findings with respect to hisintellectual functioning, Dr. Fauteck's findings relating todefendant's I.Q. and that defendant would have no problemunderstanding the statement attributed to him should have alsobeen precluded. See People v. Quick, 236 Ill. App. 3d 446 (1992)(finding error where the defendant was not allowed to testifyabout out-of-court statements, but the State was allowed topresent rebuttal testimony regarding the same testimony).

As to defendant's argument that Dr. Fauteck should not havebeen allowed to testify as to defendant's I.Q., defense counselelicited this testimony on cross-examination. As a result ofthis questioning, the jury was advised that defendant's I.Q. hadbeen measured as being between 68 and 72. This evidence wasconsistent with Liese's testimony at the motion to suppress. Notonly was this testimony not objectionable, from the standpoint ofthe defense, it was desirable.

At trial, defendant presented Liese's testimony that hisspoken vocabulary was at a second- or third-grade level. Thepurpose of this testimony was to cast doubt upon the reliabilityof defendant's statement. In response, the State presented theexpert testimony of Dr. Fauteck, who, because of his backgroundin forensic clinical psychology, was permitted to testify thatdefendant had the intellectual capacity to understand hisstatement to police. Dr. Fauteck's testimony was proper to rebutLiese's testimony.

Defendant further argues that Dr. Fauteck's testimony thatdefendant was malingering was improper because it failed to rebutany evidence presented by defendant and, instead, served only tofoster the jury's disdain for him. However, Liese testified thatshe did not observe malingering in the test results that she hadobtained. Further, Dr. Fauteck's testimony that defendant wasmalingering was proper to explain that Liese's conclusion as todefendant's low vocabulary level may have been erroneous. Therefore, the rebuttal testimony was proper.

III. Trial Court's Failure to Hold a Krankel Hearing

Defendant next contends that the trial court erred infailing to sua sponte order a hearing into possible neglect ofdefendant's case on the part of defense counsel. In support,defendant alleges that his trial attorney was possiblyincompetent in that: (1) he was unsuccessful in subpoenaing afire investigator; (2) he advanced a theory of defense thatAnthony Poull may have been responsible for the deaths; (3) hefailed to object to admission of gruesome photographs of theburned children; (4) immediately prior to trial, he told thetrial court he did not have a copy of the indictment; (5) heaccepted a firefighter as a juror; (6) in closing argument, heconceded that the evidence supported a conviction for burglary;and (7) he told the jurors that some of the delays in the trialwere caused by his incompetence, but they should not hold thisagainst defendant. Defendant argues that this court shouldremand his case to the trial court for a hearing pursuant toPeople v. Krankel, 102 Ill. 2d 181 (1984), to determine whetherdefense counsel provided ineffective assistance. In her replybrief, appellate counsel acknowledges that defendant "has notalleged that he has received ineffective assistance of counselunder the Strickland standard." At oral argument, appellatecounsel acknowledged that she made a strategic decision to relyupon the holding in Krankel rather than raise the issue of trialcounsel's alleged incompetence directly.

In Krankel, after being convicted of burglary, the defendantfiled a pro se motion for a new trial alleging, inter alia,ineffective assistance, based upon trial counsel's failure tocontact an alibi witness and failure to present an alibi defense. On appeal, the parties agreed that new counsel should have beenappointed to represent the defendant on his pro se motion, andthe supreme court remanded the case for the appointment of newcounsel to represent the defendant at a new hearing on hismotion. Krankel, 102 Ill. 2d at 189.

Defendant acknowledges that the issue as to whether thetrial court was obligated to appoint new counsel to represent adefendant on a claim of ineffective assistance typically ariseswhere the defendant has filed a pro se motion with the trialcourt. Defendant did not raise the issue of defense counsel'scompetence at the trial court level, but argues that fact is notfatal to his request for a hearing.

In support, he relies upon People v. Williams, 224 Ill. App.3d 517 (1992), where defense counsel presented the testimony oftwo alibi witnesses at the defendant's posttrial motion for a newtrial. After hearing the witnesses' testimony, the trial courtdenied the defendant's motion for a new trial, finding theevidence was not newly discovered. On appeal, the defendantargued that based upon the "readily apparent ineffectiveassistance" provided by defense counsel at the sentencinghearing, the trial court erred in not conducting an examinationinto counsel's performance sua sponte. Williams, 224 Ill. App.3d at 523. This court agreed with the defendant, stating "Wherethere is a clear basis for an allegation of ineffectiveness ofcounsel, a defendant's failure in explicitly making such anallegation does not result in a waiver of a Krankel problem." Williams, 224 Ill. App. 3d at 524. This court remanded the causeto the trial court "with directions to conduct a preliminaryinvestigation of the matter of defense counsel's performance." Williams, 224 Ill. App. 3d at 524. If that investigationindicated that trial counsel may have neglected the defendant'scase, the trial court was ordered to appoint new counsel to arguethe defendant's claim of ineffective assistance of counsel.

The State, relying on People v. Pecoraro, 144 Ill. 2d 1(1991), argues that because defendant had retained privatecounsel, the trial court did not have the power to alter orabrogate their attorney-client relationship.

In Pecoraro, both the defendant and his attorney filedposttrial motions. In the defendant's posttrial motion for a newtrial, ineffective assistance was alleged. Without appointingthe defendant new counsel to represent him on his motion, thetrial court considered each allegation in the defendant's motionunder the Strickland standard, and concluded he had receivedcompetent representation. Citing Krankel, the defendant arguedthat the trial court erred in not appointing him new counsel toargue his posttrial motion. In addressing this claim, thesupreme court stated:

"Unlike Krankel, where defendant wasrepresented by an appointed public defenderat both trial and post-trial motions,defendant Pecoraro retained private counselto represent him at trial and in post-trialmotions. It was not within the trial court'srubric of authority to advise or exercise anyinfluence or control over the selection ofcounsel by defendant, who was able to, anddid, choose counsel on his own accord. (People v. Walsh (1963), 28 Ill. 2d 405,409.) Moreover, the trial judge could notforce defendant to retain counsel other thanthat chosen by defendant. People v. Johnson(1979), 75 Ill. 2d 180, 185.) Defendant andhis counsel were the only parties who couldhave altered their attorney-clientrelationship. Defendant could have retainedother counsel to represent him prior to thehearing of his post-trial motions." Pecoraro, 144 Ill. 2d at 15.

The court also stated that "Krankel is a fairly fact-specific case, and the circumstances in the case at hand, wheredefendant retained his own private counsel and did not requestthat he be represented by other counsel, do not warrant theapplication of Krankel." Pecoraro, 144 Ill. 2d at 15. TheWilliams case was decided three months after the Pecoraro case,but does not cite to it.

In the instant case, unlike in Krankel and Pecoraro, thereis no indication in the record that defendant was dissatisfiedwith his representation, either by defendant's statements in opencourt or via a posttrial motion. Furthermore, unlike inWilliams, here, the trial court was not presented with evidencethat trial counsel was neglectful in presenting witnesses orputting on a defense. See Williams, 224 Ill. App. 3d at 524. Similarly, the facts of the instant case are inapposite to thosein People v. Hayes, 229 Ill. App. 3d 55, 65 (1992), which heldthat where a retained defense attorney did not understand the lawof insanity and did not know who had the burden of proof on theissue, a trial court must "protect [the] defendant."

The record in this case is as developed as it is ever likelyto be concerning the seven alleged bases for investigatingwhether trial counsel was ineffective. Under the facts inKrankel and in Williams, the trial court should have asked trialcounsel why they did not call the available alibi witnesses. InHayes, the trial court should have ascertained whether trialcounsel's ignorance of the law on the insanity defense impactedthe trial court's finding of guilt. None of the seven allegedbases for investigating whether trial counsel was effective riseto the level of depriving defendant of a defense.

In the context of Krankel, this court has stated that,"Ordinarily, a trial court should not be placed in a position ofhaving to 'second-guess' defense counsel strategy. This isespecially true when counsel is privately retained." People v.Gillespie, 276 Ill. App. 3d 495, 502 (1995). Since a clear basisfor an allegation of ineffectiveness of counsel does not exist,we cannot find that the trial court erred in failing to suasponte examine whether defendant was provided with effectiveassistance of counsel. See People v. Ephraim, 323 Ill. App. 3d1097, 1114 (2001).

IV. Improper Consecutive Sentences

Defendant's last contention is that the trial court erred inimposing consecutive sentences under section 5-8-4(a) of theUnified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1996)),because the court improperly relied upon the deaths of thevictims to trigger consecutive sentences.

Section 5-8-4(a) provides:

"The court shall not impose consecutivesentences for offenses which were committedas part of a single course of conduct duringwhich there was no substantial change in thenature of the criminal objective, unless, oneof the offenses for which defendant wasconvicted was a Class X or Class 1 felony andthe defendant inflicted severe bodily injury,or where the defendant was convicted of aviolation of Section 12-13, 12-14, or 12-14.1of the Criminal Code of 1961, in which eventthe court shall enter sentences to runconsecutively." 730 ILCS 5/5-8-4(a) (West1996).

After sentencing defendant and his codefendant to naturallife in prison, the trial court stated:

"As to the count of aggravated arson, whichis a Class X felony, which there is also afinding of guilty, and that, being a Class Xfelony attach to this murder conviction,carries with it, under Illinois CompiledStatutes 730/5-8-4, Section A, it ismandatory that under these circumstances thatsentence runs [sic] consecutive to the murdersentence."

Defendant does not contest the sufficiency of evidence insupport of his aggravated arson conviction. Rather, he arguesthat because the severe bodily injuries suffered by the victimswere not proximately related to the Class X felony of aggravatedarson, the trial court erred in sentencing him to a consecutivesentence on that conviction. See People v. Whitney, 188 Ill. 2d91 (1999). He also argues the court's imposition of consecutivesentences amounts to an improper double punishment, since he waspunished twice for causing the death of the Poulls. See People v.Biggs, 294 Ill. App. 3d 1046, 1053 (1998). These arguments havebeen considered and rejected by this court in People v. Wilder,325 Ill. App. 3d 987 (2001), People v. Sergeant, 326 Ill. App. 3d974 (2001), People v. Carney, 327 Ill. App. 3d 998 (2002), andPeople v. Sample, 326 Ill. App. 3d 914 (2001). In all thesecases, this court held that the murder of a victim may be thebasis for the severe bodily injury requirement of section 5-8-4(a). In Carney and Sample, this court rejected the argumentthat a mandatory consecutive sentence imposed pursuant to section5-8-4 amounts to an improper double enhancement. Carney, 327Ill. App. 3d at 1003-04; Sample, 326 Ill. App. 3d at 930-31. TheSample court also held that where a general verdict of murder isreturned, as here, the sentence for the murder count is properlyimposed on the count alleging intentional or "knowing" murderrather than the felony murder count. Sample, 326 Ill. App. 3d at928-29. We agree with the reasoning in all these cases. Consequently, the sentence for aggravated arson was appropriatelyordered to be served consecutively to defendant's sentence formurder.

Finally, defendant relies upon the Supreme Court's decisionin Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120S. Ct. 2348 (2000), and contends that the trial court erred inordering that his aggravated arson sentence be servedconsecutively to his other sentences. He argues that the trialcourt's finding that his offenses were committed as part of asingle course of conduct during which there was no substantialchange in the nature of the criminal objective should have beendecided by the jury at trial, rather than the trial court atsentencing.

The Illinois Supreme Court in People v. Wagener, 196 Ill. 2d269 (2001), held that Apprendi does not apply to consecutivesentences. Thus, defendant's argument fails.

[Unpublished material under Supreme Court Rule 23 omitted here.]

Accordingly, the judgment of the circuit court of CookCounty is affirmed.

Affirmed.

CAMPBELL, P.J. and GREIMAN, J., concur.

1. Codefendant Dicorpo was convicted of six counts of firstdegree murder, burglary, arson and aggravated arson. Hisconvictions and sentence were affirmed on direct appeal. Peoplev. Dicorpo, No. 1-00-0562 (2002) (unpublished order under SupremeCourt Rule 23).