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SECOND DIVISION

December 26, 2000

No. 1-99-2805

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Defendant was found guilty of first degree murder and attempted first degree murder aftera bench trial. He was sentenced to consecutive terms of 60 and 25 years. Defendant challenges hisfirst degree murder conviction and claims his consecutive sentence is unconstitutional. We affirmin part and vacate in part.

The evidence at trial revealed the following. William Thurman drove Eric Martin and twoother friends to a liquor store near 54th Street and Damen Avenue in Chicago at about 9 p.m. on July31, 1994. Thurman parked his car on the east side of Damen Avenue, next to a brown pickup truck. The brown truck was parked on a parkway in front of a liquor store near a pay phone on thesidewalk. Thurman's car was a maroon Oldsmobile. The brown truck was between the store andthe maroon car.

Thurman stayed in the car while his three friends went inside the store. Thurman testifiedthat he entered the store briefly to check on his friends and saw they were in the checkout line. Hethen returned to his car. Two of Thurman's friends left the store and got in the back seat of the car. Thurman said that, while they were waiting for Martin, defendant and another man came up to thefront passenger window and started an argument. Thurman said defendant asked him if he was "BigThief." Thurman said his nickname was "Big Will." Thurman said that defendant then asked hiscompanion for "the piece" and shot at Thurman three to four times, wounding him in the thigh. Thurman and his friends left the car and ran across the street.

Martin testified that, as he left the store, he was attacked by four or five members of the ViceLords gang who had been standing in front of the store. Martin said he managed to get away and waschased down 55th Street. He heard five to six gunshots about 15 minutes later, when he got home. Martin identified Kenyatta Cursey, a Vice Lord gang member and a State witness, as one of the menoutside the store.

Johnny Harris testified that he brought his six-year-old son and two-year-old grandson to theliquor store at 54th Street and Damen Avenue. Harris parked his truck on the sidewalk in front ofthe store. When he left the store, Harris noticed that a maroon car had parked on the curb alongsidehis truck. Harris said he was helping the children into the truck when he heard an argument besidea maroon car parked behind his truck. Harris said he heard a man say "give it to me, I'm going tooff this mark." Harris then saw the man get a gun and shoot at a man in the maroon car. Harris saidthat, a second later, another man near the telephone booth fired three shots at the maroon car. Oneof the shots fired by the man near the telephone booth hit Harris' six-year-old son in the head, killinghim. Harris saw Brandon Johnson run down an alley next to the store. He later identified defendantas the man who shot into the maroon car. He also identified Johnson as the shooter near thetelephone booth.

Ronnie Smith testified that he was a member of the Vice Lords gang. Smith was originallyarrested for the July 31 shooting, but was never charged. Smith said that he was walking downDamen Avenue, toward the liquor store, when he saw a fellow gang member, known as "Mad Dog,"chasing someone down the street. He then saw defendant and Brandon Johnson jogging next to eachother out of an alley next to the store. Smith saw defendant go to the maroon car. Johnson went tothe front of the store. Defendant shot at the driver of the car. Johnson fired five to six shots at thecar from the phone booth. Smith said he saw Johnson and defendant run together down an alley nextto the store.

On cross-examination, defense counsel established that, at codefendant Johnson's earliertrial, Smith testified that he did not see defendant or Johnson leave the scene of the shooting. Smithsaid he did not remember that testimony. Smith also admitted lying to police during theirinvestigation. Smith admitted that he first told the police that he was not at the liquor store on July31 and only knew what had happened because someone had told him.

Kenyatta Cursey testified for the State. His testimony was consistent with a statement he hadgiven to police and testimony before a grand jury on August 3, 1994. Cursey said he was a memberof the Black Stones gang and that he believed the Vice Lords and Black Stones were at war. Curseywas in front of the liquor store on July 31. Cursey testified he saw defendant standing by a marooncar parked near the store. He heard defendant say "[expletive deleted] Chief Stones" and then shootinto the car. Defendant ran toward Winchester Avenue. Cursey said Johnson fired shots at the caras he ran past the car to an alley next to the store near 55th Street. Cursey said he ran towardWinchester.

Defendant testified that he went to the liquor store near 54th Street and Damen Avenue onJuly 31, 1994. He was at the entrance of an alley near the store when he saw Thurman staring at himfrom his car. Defendant went up to the car and asked Thurman why he was staring at him. Defendant said that Thurman was "acting crazy." Defendant said he heard gunshots from behind andreached for a friend's gun. Defendant said he thought Thurman was reaching for a gun. He shot atThurman to protect himself. Defendant then ran down the alley and disposed of the gun. Defendantdenied going to the liquor store with Johnson. He also denied knowing Johnson was at the liquorstore on the night of the shooting.

Defendant knew police were looking for him so he actively avoided them. Defendantadmitted being a member of the Vice Lords gang. Defendant said that his testimony at trial was thesame as the statements he gave police when he was arrested.

Detective James O'Brien testified in rebuttal. O'Brien said that, when first interviewed, defendant denied being involved in the shooting. Defendant admitted his involvement only whenhe was told he had been identified as the shooter. Defendant told O'Brien that he was at the liquorstore with other gang members. He asked the driver of a maroon car if he was a "Chief Stone." Hethen shot the driver. Defendant told O'Brien he heard more shots as he ran away from the scene. He left the neighborhood when he heard police were looking for him. He remained in hiding untilhis arrest.

Defendant was found guilty of first degree murder based on accountability and attempted firstdegree murder. He was sentenced to consecutive terms of 60 and 25 years.

Defendant raises two issues on appeal: (1) defense counsel's failure to perfect Smith'simpeachment and use evidence of an earlier inconsistent statement as substantive evidence amountsto ineffective assistance of counsel; and (2) the mandatory consecutive sentence provision isunconstitutional under the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

To prevail on an ineffective assistance of counsel claim, a defendant must prove that hisattorney's representation fell below an objective standard of reasonableness and that, but for theunprofessional errors, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A reasonable probability is one "sufficient to undermine confidence in the outcome." Strickland, 466U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

We are asked here to determine whether defense counsel's failure to submit the transcript ofSmith's earlier trial testimony as substantive evidence as allowed under section 115-10.1 of the Codeof Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 1996)) (the Code) amounts toineffective assistance of counsel. We believe it does not.

We first note that a transcript of Smith's earlier trial testimony was not made a part of therecord on appeal. Only those parts of Smith's earlier testimony quoted by counsel at trial here arebefore us on appeal. We question our ability to review this issue absent the complete transcript. Cf.People v. Olinger, 176 Ill. 2d 326, 680 N.E.2d 321 (1997) (ineffective assistance claim relating toimproper impeachment reviewed where inconsistent statements were not made part of record onappeal). Lack of a complete transcript aside, defendant's ineffective assistance argument isunpersuasive.

Defendant contends that his counsel was ineffective by failing to impeach Smith and useSmith's earlier testimony as substantive evidence under section 115-10.1 of the Code. 725 ILCS5/115-10.1 (West 1996). But our review of the record shows that Smith was impeached, and section 115-10.1 does not require a prior inconsistent statement to be used as substantive evidence. The following exchange took place during Smith's cross-examination:

"COUNSEL: You testified in [the earlier] trial didn't you?

SMITH: Yes, sir.

COUNSEL: Page 48. Were you asked this question and did you give theseanswers: 'Mr. Smith, after [Johnson] fired his gun for the last time did you see wherehe went? Answer: No sir.' Were you asked that question, did you give that answer?

SMITH: I don't know at the time.

COUNSEL: I can't hear you.

SMITH: I don't know. It's been so long sir.

COUNSEL: Are you saying you didn't give that answer or you don't know?

SMITH: I don't remember.

COUNSEL: All right. 'Question: Did you see where [defendant] went? Answer: No sir.' Were you asked that question and did you give that answer?

SMITH: Can't remember sir.

COUNSEL: You can't remember?

SMITH: (no audible response.)

COUNSEL: Well if you gave those answers, would those answers be a lie orwould they be the truth.

PROSECUTOR: Objection.

THE COURT: Sustained."

The purpose of impeachment is to destroy credibility. People v. Cruz, 162 Ill. 2d 314, 359,643 N.E.2d 636 (1994). Smith was confronted with his earlier trial testimony in which he said thathe did not see where defendant or Johnson went after the shooting. Smith claimed not to rememberthat testimony. The inconsistency was established for the trier of fact. Defendant cites no case lawto suggest that more was needed to impeach Smith. The cases he does cite are inapposite.

In People v. Salgado, 263 Ill. App. 3d 238, 635 N.E.2d 1367 (1994), People v. Skinner, 220Ill. App. 3d 479, 581 N.E.2d 252 (1991), and People v. Garza, 180 Ill. App. 3d 263, 535 N.E.2d 968(1989), defense counsel either failed to call a witness (Skinner, 220 Ill. App. 3d at 483-84) or failedto confront the witness with his earlier inconsistent statement (Salgado, 263 Ill. App. 3d at 247;Garza, 180 Ill. App. 3d at 269).

We also decline to hold that counsel's failure to use Smith's earlier inconsistent testimony assubstantive evidence amounts to ineffective assistance of counsel. We note that defendant cites nocase law to the contrary. How a witness is cross-examined is an exercise of professional judgmentwhich is entitled to substantial deference on review. People v. Pecoraro, 175 Ill. 2d 294, 326-27, 677N.E.2d 875 (1997). We do not believe counsel's choice not to make substantive use of Smith'sinconsistent statement was objectively unreasonable where defendant was tried in a bench trial andno possibility of jury confusion existed. We conclude that counsel's performance here did not fallbelow the standard of objective reasonableness required under Strickland. There was no ineffectiveassistance of counsel.

Defendant next argues that his consecutive sentence under section 5-8-4 of the Unified Codeof Corrections (730 ILCS 5/5-8-4 (West 1996)) is unconstitutional under the Supreme Court's recentpronouncement in Apprendi, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348. The Apprendi Courtheld that, except for the fact of an earlier conviction, "any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to a jury, and proved beyond areasonable doubt." Apprendi, 530 U.S. at __, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. We notethat defendant raises this issue for the first time in a supplemental brief. Defendant did not file apostsentencing motion in the trial court. Lack of a postsentencing motion generally waives reviewof sentencing issues on appeal. See People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997). Butchallenges to a court's statutory authority to impose a particular sentence are not waived. People v.Wilson, 181 Ill. 2d 409, 413, 692 N.E.2d 1107 (1998); People v. Clifton, Nos. 1-98-2126, 1-98-2384cons., slip op. at 50-51 (September 29, 2000).

Section 5-8-4(a) permits consecutive sentences for offenses committed as part of a singlecourse of conduct if one of the offenses is first degree murder or a Class X or Class 1 felony andinvolved the infliction of severe bodily harm. 730 ILCS 5/5-8-4(a) (West 1996). Section 5-8-4(b)permits a consecutive sentence if the court determines that "such a term is required to protect thepublic from further criminal conduct by the defendant." 730 ILCS 5/5-8-4(b) (West 1996). Therecord here shows that the court made findings under both subsections (a) and (b):

"I believe that [a consecutive sentence] is the appropriate sentence ***. It isappropriate because of the injuries involved, because it is also necessary that thisdefendant's actions be deterred, that he not be allowed to continue his crime wave."

We considered the affect of Apprendi on section 5-8-4 in Clifton. There we reasoned thatthe Apprendi holding applied to section 5-8-4 because, although section 5-8-4(a) "does not enhancethe sentence for any particular crime, it does extend the range of sentence to which a defendant maybe exposed for a given course of conduct." Clifton, slip op. at 53. The practical effect of a section5-8-4(a) finding increases, and may double, "the actual and potential sentence that the defendantmay receive for a given course of conduct." Clifton, slip op. at 54. We concluded that this wasprecisely the type of result Apprendi was designed to prevent. Clifton, slip op. at 54. We then heldthat consecutive sentences for crimes arising out of the same course of conduct based on a courtfinding that the defendant inflicted severe bodily harm were unconstitutional under Apprendi. Clifton, slip op. at 55.

We affirm defendant's conviction but vacate the order requiring his sentences to runconsecutively. We order the trial court to correct the mittimus to provide that the sentences are torun concurrently.

Affirmed in part and vacated in part.

COUSINS and McBRIDE, JJ., concur.