People v. Primm

Case Date: 12/29/2000
Court: 1st District Appellate
Docket No: 1-97-3685 Rel

SIXTH DIVISION

December 29, 2000

No. 1-97-3685

THE PEOPLE OF THE STATE OF ILLINOIS,)Appeal from the
)Circuit Court of
Plaintiff-Appellee,)Cook County.
)
v.)No. 94 CR 27857
)
DECARLO PRIMM,)The Honorable
)Marcus R. Salone,
Defendant-Appellant.)Presiding Judge.

JUSTICE BUCKLEY delivered the opinion of the court:

In November 1994, the State charged defendant DeCarlo Primmand codefendants Demetrius Willis, Miles Smith and Korey Herringwith first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West1994)), attempted first degree murder (720 ILCS 5/8-4 (West 1994)),and aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West1994)). Defendant and Willis were then tried simultaneously in thetrial court, Willis in a bench trial and defendant by a jury. Atthe conclusion of the trial, defendant and Willis were found guiltyof first degree murder, attempted first degree murder, and aggra-vated battery with a firearm. Both defendant and Willis were sen-tenced to 50 years' imprisonment. Defendant now appeals, con-tending that (1) his statements made to investigators wereinvoluntary and coerced; (2) the State improperly excused apotential juror based upon her race and failed to offer legitimaterace-neutral reasons for another potential juror's dismissal; and(3) the trial court improperly considered his race duringsentencing. The State cross-appeals, arguing that the trial courterred by failing to impose consecutive sentencing. We affirm inpart, reverse in part, and remand.

I. BACKGROUND

Peter Jones testified that on October 21, 1994, at about 9 a.m., he, Andre Humphries, and Brian Boler (all members of theGangster Disciples street gang), were walking along 70 Street inChicago when they noticed a car coming toward them. They saw thefront-seat passenger "throw up" a Gangster Disciples gang sign. Jones identified this person as defendant. Jones and Boler alsomade the Gangster Disciples sign. Jones stated that when he turnedaround to look at the car, he saw defendant point a gun and startshooting. He and Humphries began running and turned into an alley.

After turning into the alley, Jones testified that he hidbehind a van parked in the middle of the alley and remained thereuntil he heard one of his friends yelling that someone had beenshot. At this point, he saw Humphries lying on the ground in thealley.

Boler testified that, as soon as he saw the gun, he ran outahead of his friends down 70 Street towards Eggleston Way. Afterthe first three shots were fired, Boler was hit in the back of hisleft thigh. However, he continued running and turned north onEggleston toward 69 Street.

Chicago police officer Jeffries testified that he was on dutythe morning of October 21, 1994. At about 9:45 a.m., he receiveda call that a man had been shot at 409 West 70 Street. WhenOfficer Jeffries arrived at the scene, about 10 to 15 people hadgathered at the location. He discovered Humphries' dead body lyingin an alley and called for an ambulance and assistance.

While Officer Jeffries was still at the scene, Bolerapproached him and said that he had also been shot. He explainedthat a car with four or five men drove by and one of the occupantspointed a gun out the window and started firing. Boler then wentto the hospital.

At about 10:30 a.m. on October 21, 1994, Detective LinnRolston and his partner, Detective Thomas Byron, were assigned tothe case. Detective Rolston testified that he and Detective Byronproceeded to the scene of the shooting and talked with a fewpeople. During their investigation, they learned of a witnessnamed Luther Kymes. Detectives Rolston and Byron then interviewedKymes. Based on the information Kymes gave them, the detectivesbegan looking for a man named Korey Herring. The assistantprincipal at Robeson High School said that Herring was a student atthe school and gave his address to the detectives.

Detectives Rolston and Byron went to Herring's residence at 70and Lowe. They interviewed Herring's mother. While they learnedthat Herring was not there, they received Herring's father'stelephone number. The detectives eventually located Herring at hisfather's house at 7111 South Vernon. Herring and his father fol-lowed the detectives to Area One headquarters at 51 and Wentworth.

The next day, October 22, 1994, Herring accompanied DetectivesRolston, Ryan and Lenihan and gang specialist Jack Bleuer, whilethey searched for other offenders and evidence near the scene ofthe crime. Herring informed the detectives that defendant, Smith,and Willis were involved in the shooting the day before. Then, atabout 1 p.m. on October 22, the detectives found defendant andWillis sitting in Willis' car at 69 and Parnell. Herring identi-fied them. The detectives then apprehended defendant and Willisand took them to Area One.

Investigators separated defendant and Willis when they arrivedat the station at 1:45 p.m. Ryan testified that the investigatorsplaced defendant in a room at Area One, advised him of his rights,and then left to continue the investigation. Ryan returned around4 p.m. and brought defendant food from McDonald's. At this point,Ryan learned that defendant was 16 years old and, therefore, heattempted unsuccessfully to get a youth officer to participate inthe interview. Ryan again advised defendant of his rights, addingthat, if charged, he could be prosecuted as an adult. Ryan furthertestified that he attempted to contact defendant's mother severaltimes but was unable to do so. Defendant denied being present atthe scene of the offense.

At approximately 5 p.m., youth officer Funches spoke withdefendant. According to Funches, defendant indicated that heunderstood why he was taken to Area One. Funches was present dur-ing the remainder of defendant's interviews.

At approximately 7:45 p.m. on October 22, 1994, the policeconducted a lineup. Jones viewed the lineup and identified defen-dant as the shooter. Although Willis was not identified, Jones dididentify Willis' car as the one used in the shooting.

At approximately 9:30 p.m., Assistant State's Attorney MariaKuriakos met with defendant. Youth officer Funches and DetectiveRyan were also present. Kuriakos advised defendant of his Mirandaand juvenile rights, and defendant indicated that he understood. Kuriakos testified that, before she asked defendant any questions,defendant admitted his involvement in the shooting. This interviewlasted about two minutes.

At 11:30 p.m., Assistant State's Attorney Tom Biesty inter-viewed defendant. Again, youth officer Funches and Detective Ryanwere also present. Biesty again advised defendant of his Mirandaand juvenile rights, and defendant indicated that he understood. Biesty explained that Funches was there to answer defendant'squestions about his rights. Biesty testified that he askeddefendant how he was being treated, to which defendant replied"fine." Defendant then agreed to memorialize his statement througha court reporter.

In defendant's statement, he indicated that he understood hisMiranda and juvenile rights and that he was treated fine by thepolice. He admitted attending a Black Disciples' gang meeting thenight before the shooting. After this meeting, defendant and co-defendants agreed to kill Gangster Disciples. The next day,defendant and other gang members met at 9 a.m. at the train tracksnear 69 and Parnell and distributed guns to each other. Defendantand Willis drove around the neighborhood and found several GangsterDisciples. Defendant and Willis returned to pick up three othergang members and then drove to the area where the GangsterDisciples were walking. The group devised a plan whereby Willisand defendant waited in Willis' car, which they parked in an alley. According to defendant's statement, when the victims attempted toescape gunfire from three other gang members, defendant shot at theground toward the victims to flush them back. When the attackconcluded, the group fled in Willis' car. After reviewing hisstatement, defendant signed each page. Detective Ryan testifiedthat defendant concluded his statement at approximately 1:55 a.m.

In August 1995, defendant filed a motion to suppress his oraland written statements, arguing that investigators failed to notifyhis mother that he was arrested and refused his mother's repeatedrequests to see him. Further, defendant claimed that "during [the]time the defendant was questioned, [investigators] hit, punched andslammed [him] against a wall" and that his statements "were theresult of force, threats, and coercion by the police detectives andwere not voluntary." Finally, defendant stated that, duringquestioning, he asked to speak with a lawyer but was not permittedto do so.

In October 1996, the trial court denied defendant's motion tosuppress, finding that defendant's statements were made freely. InJune 1997, trial began. At the conclusion of the trial, the juryfound defendant guilty of first degree murder, attempted firstdegree murder, and aggravated battery with a firearm. After con-ducting an aggravation and mitigation hearing, the trial courtsentenced defendant to 50 years' imprisonment. Defendant thenfiled the instant appeal.

II. ANALYSIS

A. Voluntariness of Defendant's Confession

On appeal, defendant first contends that his statement wasmade involuntarily and, therefore, should have been suppressed. When defendants raise such a claim, the State bears the burden ofdemonstrating that defendant's confession was made voluntarily. People v. Lash, 252 Ill. App. 3d 239, 242 (1993). The test for thevoluntariness of a statement is whether, under the totality of thecircumstances, the statement was made freely, without compulsion orinducement, with consideration given to the characteristics of theaccused and the length of the interrogation. People v. Fuller, 292Ill. App. 3d 651, 664 (1997). To determine the voluntariness ofstatements, the court may consider the age, intelligence,experience, and physical condition of the defendant, the length ofthe interrogation, the possibility of threats, promises or physicalcoercion, as well as the presence of a parent or youth officer. People v. Williams, 275 Ill. App. 3d 249, 256 (1995).

The totality of the circumstances test also applies whenjuveniles are involved. People v. McNeal, 298 Ill. App. 3d 379,390 (1998). However, in such cases, additional considerationsexist, including the time of day when questioning occurred and thepresence or absence of a parent or other adult interested in theminor's welfare. McNeal, 298 Ill. App. 3d at 391. Further, thebenchmark for voluntariness is not whether the defendant would haveconfessed in the absence of interrogation but, rather, whether his will was overborne at the time. McNeal, 298 Ill. App. 3d at 391. Finally, under section 5-6(2) of the Juvenile Court Act of 1987(the Act) (705 ILCS 405/5-6(2) (West 1994)), police must make areasonable attempt to notify the minor's parent, guardian, or theperson with whom the minor resides at the time they take the minorinto custody.

Specifically, defendant argues that his statement wasinvoluntary because the "police frustrated his mother's attempts tosee him and because no other adult interested in his welfare waspresent" when he made the statement. The trial court rejected thisargument, stating:

"There was testimony by Primm's motherconcerning her presence at the police stationoff and on *** the night in question prior toMr. Primm's *** statement.

It is also a matter of record that Mr.Primm has had prior contact with the policeauthorities ***.

*** [M]uch of the asserted facts aredisputed ***.

*** [G]iven the totality of the circum-stances I do not find that defendant's willwas overborne. I do believe that the state-ment was given in compliance with the law. That it was given freely and voluntarily."

Ordinarily, the trial court's findings and ruling on a motion tosuppress will not be disturbed by a reviewing court unless they areagainst the manifest weight of the evidence. Fuller, 292 Ill. App.3d at 665.

During the suppression hearing, defendant's mother, PatriciaJohnson, testified that she went to Area One three times to see herson while he was being questioned, and each time she was urged togo home. Citing People v. Brown, 182 Ill. App. 3d 1046 (1989),defendant notes that when an officer questioning a juvenile learnsof a parent's presence in the station, the officer has anaffirmative duty to stop questioning and allow the parent to conferwith the minor. However, the investigators testified that they hadno knowledge of Johnson's presence at Area One. Detective Ryantestified that he gave his card to defendant's grandmother (withwhom defendant resided, thus satisfying section 5-6 of the Act) andshowed her the telephone number where she could reach them. Detective Ryan and youth officer Funches made several attempts tocontact defendant's mother. As the trial court noted, the testi-mony conflicted sharply. The trial court was in the best positionto weigh and reconcile this conflicting testimony by determiningthe witnesses' credibility because it heard the testimony firsthandand observed the witnesses' demeanor. People v. Rivas, 302 Ill.App. 3d 421, 436-37 (1998). After doing so, the trial courtdetermined that defendant's will was not overborne and that he madehis statement voluntarily. No persuasive evidence exists in therecord that would support reversal on this issue.

Even if we determined that the detectives improperly continuedto question defendant outside the presence of his mother, suchfailure alone does not render a confession involuntary. The dutyto stop questioning in such instances is a judicial directive, andwhile a significant factor in the determination of voluntariness,noncompliance does not compel a finding that the confession wasinvoluntary. See, e.g., McNeal, 298 Ill. App. 3d at 391; In reLashun H., 284 Ill. App. 3d 545, 553-54 (1996); People v. Bobe, 227Ill. App. 3d 681, 702-03 (1992).

In any event, we further note that other evidence exists inthe record supporting the trial court's determination. Investi-gators testified that they read defendant his rights on fourseparate occasions, and each time defendant indicated that heunderstood. Detective Ryan testified that he obtained a youthofficer as soon as one became available. Once youth officerFunches became available, he attended all interviews with defen-dant, including the one in which defendant gave his statement. Defendant was allowed to use the washroom and was given food anddrink. Defendant never complained of mistreatment. To the con-trary, he was not handcuffed, had no marks on his body indicatingphysical abuse, and even told youth officer Funches that he wasbeing treated fairly and knew what was happening. While defendant'sinterview lasted well into the night, we note that he has nearlyreached majority age and that he has had, as the trial courtrecognized, previous involvement with the police. Based on thesefacts, we conclude that sufficient evidence exists to support thetrial court's decision denying the motion to suppress.

B. Batson Claim

Defendant next argues that the State misused its peremptoryjury challenges in a racially discriminatory manner. See Batson v.Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant concedes that, while he raised this issue to the trialcourt during voir dire, he failed to raise it in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988), cert. denied, 488U.S. 917, 102 L. Ed.2d 263, 109 S. Ct. 274 (1988) (holding objec-tion and a posttrial motion are necessary to preserve an issue forappeal). However, our supreme court, in People v. Mitchell, 152Ill. 2d 274, 285 (1992), held that a defendant who objects to theState's use of peremptory challenges but fails to raise a Batsonclaim in a posttrial motion does not waive his or her claim onreview. See also People v. Whaley, 184 Ill. App. 3d 459, 465(1989) (Justice Freeman, writing for the majority, opined thatdefendants need only make a timely objection during the voir dire topreserve a Batson claim for appeal). Therefore, we proceed to themerits of defendant's Batson claim.

Under Batson, a defendant objecting to the State's use ofperemptory challenges must first establish a prima facie case ofpurposeful discrimination during jury selection by demonstratingthat relevant circumstances raise an inference that defendantexercised peremptory challenges based upon prospective jurors'race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at1723; People v. Heard, 187 Ill. 2d 36, 53 (1999). In consideringwhether a party has established a prima facie case, courts consider: (1) the racial identity between the defendant and the excludedvenirepersons; (2) a systematic pattern of strikes against blackvenirepersons; (3) a disproportionate use of peremptory challengesagainst black venirepersons; (4) the level of black representationin the venire as compared to the jury; (5) the opponent counsel'squestions and statements during voir dire examination and whileexercising peremptory challenges; (6) whether the excluded blackvenirepersons were a heterogeneous group sharing race as their onlycommon characteristics; and (7) the race of the defendant, victim,and witnesses. Heard, 187 Ill. 2d at 53-54. We will not disturba trial judge's determination of whether a defendant hasdemonstrated a prima facie case of discriminatory jury selectionunless it is against the manifest weight of the evidence. Heard,187 Ill. 2d at 54.

If the defendant establishes aprima facie case, the burdenshifts to the State to articulate a race-neutral explanation forchallenging the venirepersons in question. If the State providesa race-neutral explanation, the trial judge must consider thisexplanation and determine whether the complaining party hasestablished purposeful racial discrimination. Batson, 476 U.S. at96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct. at 1723-24; Heard, 187Ill. 2d at 54. The trial judge's determination on the ultimateissue of discrimination is entitled to great deference and will notbe disturbed unless it is clearly erroneous. Heard, 187 Ill. 2d at54.

Defendant contends that the trial court failed to "make asincere and reasoned attempt to assess the genuineness" of theState's explanation for its use of peremptory challenges. SeePeople v. Freeman, 220 Ill. App. 3d 825, 829 (1991). During theBatson hearing, the State explained that it excused African-American veniremember Charles Morris because:

"[H]e is very opinionated. He seemslike a very good--he does seem like a veryhead strong person. Judge, we want jurorswho are going to deliberate with the otherjurors. *** I just thought *** that he wasn'tgoing to share his views with the others.

***

He just seem[ed] very opinionated when[another potential juror] started talkingabout clear thinking and [how] people aregullible ***. I noticed Mr. Morris justnodding his head very adamantly. That iswhat clued me in, because actually, I had apositive sign next to Mr. Morris. It justmakes me think that he is going to be veryopinionated. Sometimes you take risks; whe-ther people are going to be follower[s] orleader[s]. I just had a bad feeling aboutMr. Morris."

The court cautiously accepted this argument, stating "[w]ell,I suppose the explanations are race neutral, but I assure you Idon't know that it will come up again, but I will be watching thisa lot closer, and we are not going to have that." The trialcourt's blind acceptance of the State's explanation, defendantargues, coupled with an admonishment that it would scrutinizesimilar explanations more closely, demonstrates that it did notadequately evaluate the genuineness of the State's explanation. We disagree.

Our supreme court has consistently upheld prosecutors'exclusion of prospective jurors based on their courtroom demeanor. See People v. Fair, 159 Ill. 2d 51, 74 (1994); People v. Hudson,157 Ill. 2d 401, 433 (1993). Nevertheless, such subjectiveexplanations must be closely scrutinized because they can beeasily used by a prosecutor as a pretext for excluding persons onthe basis of race. Fair, 159 Ill. 2d at 74. The record indicatesthat the trial judge properly scrutinized the State's explanationby specifically asking why it thought Morris seemed opinionatedand by questioning its response. The trial judge concluded thatthe State's explanation was race neutral. That the trial judgeadvised the State that such future challenges would be closelyscrutinized does not mean that the State's explanation was faultyor that the court failed to properly evaluate it. As noted, suchexplanations must be scrutinized under Fair.

Trial judges are particularly well suited to make adetermination of genuineness because they are familiar with localconditions and prosecutors and can draw upon their power ofobservation and judicial experience as a guide in distinguishinga true case of discrimination from a false one. People v. Mayes,257 Ill. App. 3d 137, 152 (1993). Therefore, their determinationsin such matters are entitled to substantial deference. Mayes, 257Ill. App. 3d at 152. Defendant has failed to present persuasiveevidence that we should disturb the trial judge's ruling on thisissue.

Defendant also contends that the State's failure to explainits reasons for excluding another African-American venirepersonconstitutes reversible error. When defendant raised his Batsonobjection, he identified three potential jurors that the Statechallenged. The State offered explanations for challenging twoof the three, and the trial judge deemed such explanations raceneutral. However, the State neglected to explain its reasons forexcluding the third person. The record does not suggest that theState's failure was deliberate. Indeed, neither defense counselnor the trial judge noticed, and jury selection proceeded. Nevertheless, this failure, defendant argues, means that the Statedid not meet its burden of providing race-neutral explanations asrequired under Batson. The State disagrees, arguing that defen-dant failed to raise this precise issue to the trial judge and,therefore, has forfeited his right to raise it before this court.

While one Illinois case exists in which the court expressedno specific displeasure at the State's failure to explain itsreasons for excusing a venireperson (see People v. Lovelady, 221Ill. App. 3d 829, 840 (1991)), our research reveals that no otherIllinois case squarely addresses this issue. Therefore, we findit helpful to examine decisions from other jurisdictions consi-dering this issue. Jaime v. Director, 301 Ill. App. 3d 930, 935(1998).

In United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987), theprosecutor failed to provide an explanation for its thirdperemptory challenge. As here, defendant did not call thisomission to the court's attention. The Fifth Circuit found thatdefendant's failure to pursue or reiterate his Batson objectionresulted in forfeiture on appeal, stating that "[n]ow it is toolate for appellants to insist on an explanation they did notrequest at trial." Forbes, 816 F.2d at 1011. The court furtherreasoned that the "timely objection" rule is essential to aprosecutor's strike. Forbes, 816 F.2d at 1011. The rule isdesigned to prevent defendants from " 'sandbagging' " the prosecu-tion by waiting until trial has concluded unsatisfactorily beforeinsisting on explanation for jury strikes that by then theprosecutor may largely have forgotten." Forbes, 816 F.2d at 1011. In People v. Duncan, 177 A.D.2d 187, 192, 582 N.Y.S.2d 847,850 (N.Y. App. 1992), the appellate division of New York's supremecourt similarly held:

"We do not suggest that every Batsonobjection or protest preserves for review allBatson issues apparent from the record. Clearly, it preserves those issues expresslydetermined by the court [citation]. It wouldnot, however, preserve an issue where thedefendant did not object to the challenge ofa specific juror and where the prosecutorproffered an explanation for some, but notall, of the jurors peremptorily excused. Insuch a case, the objection or protest wouldpreserve a question of law only with respectto the sufficiency of the explanations givenand expressly determined by the court. Afurther objection or protest calling atten-tion to the prosecutor's failure to profferrace-neutral reasons for other peremptorychallenges would be required to enable thecourt to cure the prosecutor's omission[citation]. Moreover, a defendant could notraise, for the first time on appeal, aspecific issue not raised by timely protestat the time of jury selection." (Emphasisadded.) Duncan, 177 A.D.2d at 192, 582N.Y.S.2d at 850.

We conclude that, in order to preserve this issue on review,defendant was required to pursue his original objection. Cf.Louisiana v. Powell, 598 So. 2d 454, 462-63 (La. App. 1992)(stating that defense counsel did not contest the validity of theprosecutor's reasons, did not press for further proof and,therefore, could not demand further explanation on appeal).

We recognize that this district recently examined a Batsonissue in People v. Crockett, 314 Ill. App. 3d 389 (2000). There,rather than eliciting a race-neutral explanation for the State'speremptory strike, the trial court provided one of its own. Onappeal, the court found that the trial court erred, noting thatthe trial court was obligated to elicit a race-neutral explanationfrom the State. Crockett, 314 Ill. App. 3d at 396. We agree thatthe trial court cannot provide its own explanation for the State'sactions. However, in the instant case, we are considering thetrial court's obligations in an entirely different context. Wefind that, under these facts, defendant had a responsibility toensure that the trial court elicited a race-neutral explanation. He should have done this by pursuing or renewing his originalobjection. The underlying purpose of the forfeiture rule is to"preserve finite judicial resources by creating an incentive forlitigants to bring to trial courts' attention alleged errors,thereby giving trial courts an opportunity to correct theirmistakes." (Emphasis added.) People v. McKay, 282 Ill. App. 3d108, 111 (1996). Further, one of the most well-settled rules ofappellate review is that parties cannot raise issues for the firsttime on appeal. See 177 Ill. 2d R. 341(e)(7); People v. Stewart,121 Ill. 2d 93, 105 (1988). The principal reason for these rulesis to prevent the "sandbagging" contemplated by the court inForbes.

We note that our conclusion that defendant forfeited hisBatson claim with respect to Betty Cameron is not inconsistentwith Mitchell and Whaley. Mitchell and Whaley do not hold thatone can never forfeit a Batson challenge. They hold that anobjection alone is sufficient to preserve a Batson argument (i.e.,it is unnecessary for defendant to raise the issue in a posttrialmotion in addition to a timely objection). However, defendantsfailing to properly preserve a Batson claim are still susceptibleto forfeiture. See People v. Richardson, 189 Ill. 2d 401, 410(2000).

In the instant case, there were multiple Batson challenges. Defendant did not file a posttrial motion as to any of them. However, to the extent that he raised timely, in-court objections,we addressed them pursuant to Mitchell and Whaley. For example,as to stricken venireperson Charles Morris, defendant raised atimely objection to the State's challenges and, pursuant toMitchell and Whaley, it was proper for us to address thatchallenge. However, as to venireperson Betty Cameron, defendantfailed to meet the test articulated in Mitchell and Whaley: hedid not object to the State's failure to articulate a race-neutralreason. It is on this basis that we deem his argument forfeited.

We recognize that, in some instances, we would be obliged toconsider defendant's claim under the plain error doctrine. However, we decline to do so in this case. A reviewing courtwill review an issue under the plain error doctrine if theevidence is (1) closely balanced; or (2) if the alleged error wasso serious that it deprived the defendant of a fair trial. Peoplev. Blackwell, 164 Ill. 2d 67, 74 (1995).

As to the first prong, the evidence in this case was notclosely balanced. For example, defendant provided a written con-fession. Confessions are one of the most probative and damagingtypes of evidence that can be admitted against a defendant. Arizona v. Fulminante, 499 U.S. 279, 292, 113 L. Ed.2d 302, 322,111 S. Ct. 1246, 1257 (1991). Additionally, the trial court heardtestimony from witnesses who placed defendant at the scene andidentified him as a shooter.

We also find that defendant fails to meet the second prong. A reviewing court will grant relief under this prong only when theerror is so fundamental to the integrity of the judicial processand so prejudicial to the defendant that the trial court could notcure the error by sustaining an objection or instructing the juryto disregard the error. People v. Herrett, 137 Ill. 2d 195, 215(1990). Otherwise, defense counsel could obtain a reversal of thedefendant's conviction, simply by "failing to object and by designdepriving the trial court of the opportunity to prevent or correctthe error ***." Herrett, 137 Ill. 2d at 215.

We acknowledge that, generally, discrimination during juryselection raises serious questions as to the fairness of ajudicial proceeding. See Blackwell, 164 Ill. 2d at 74-75.

However, under these facts, the trial court could have easilycured the alleged error by sustaining an objection, had one beenraised. It is entirely possible that the State could havearticulated a race-neutral reason for excusing Betty Cameron. However, we have no basis to ascertain whether discriminationoccurred.


C. Trial Judge's Consideration of Improper
Factors During Sentencing


Defendant next argues that the trial court relied upon impro-per factors in sentencing defendant and, therefore, this courtshould remand for resentencing. Specifically, defendant arguesthat the court relied upon its subjective feelings regarding him,the problem of crimes committed by blacks against blacks, and theseriousness of his offense.

The State disagrees, arguing that no evidence exists in therecord supporting a remand for resentencing based on this issue. Further, the State contends that this court should not addressdefendant's argument because he failed to object during sentencingand further failed to raise it in a postsentencing motion. SeePeople v. Reed, 177 Ill. 2d 389, 394 (1997) (holding that failureto challenge defendant's sentence in a postsentencing motionforfeits such issue on review); People v. Enoch, 122 Ill. 2d 176,186 (1988) (stating that, to preserve an issue for review, aproper objection at trial and in a written posttrial motion areessential). However, as defendant correctly notes, the forfeiturerule is less rigidly applied when the basis for the objection isthe trial judge's conduct. People v. Nevitt, 135 Ill. 2d 423, 455(1990). While we decline to apply the forfeiture rule, wenevertheless reject defendant's argument on this point.

The trial court is best suited to determine the mostappropriate sentence. People v. Hicks, 101 Ill. 2d 366, 375(1984). A trial court's sentencing decision is entitled to greatdeference and will not be disturbed absent a showing of abuse ofdiscretion. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). However, a defendant is entitled to a new sentencing hearing wherethe sentencing judge relies on an improper factor or wherecomments made by the sentencing judge indicate that he did notconsider the requisite statutory factors. See, e.g., People v.Rosa, 206 Ill. App. 3d 1074, 1084-85 (1990) (vacating defendant'ssentence because the trial judge referred to "the stupidity andslutliness of women" and the "coward[ice]" of street gang members,and described the defendant as "slovenly" and "stupid"). Appel-late courts assume that a trial judge considered only competentevidence in sentencing a defendant and this assumption will beovercome only if the record affirmatively demonstrates thecontrary. Kolzow, 301 Ill. App. 3d at 8.

Defendant bases his arguments primarily on the trial judge'sstatement:

"There is absolutely no explanation forit. [Defendant and Willis] have done some-thing that the Ku Klux Klan could never do. Kill more black folks tha[n] the Ku Klux Klanever will. And you have the audacity to sayI'm sorry. That's bull. You are a lunatic,a raving animal. That's what you are. Howin your--how could you find the breath toformulate a plan to shoot somebody? What doyou gain from that?

***

I went through this once or twiceyesterday. Young black man kills anotherblack man. Don't know him. Could care less. Every time at this stage its I'm sorry. Giveme a second chance. What about the victim? Did the victim have an opportunity to defendhimself? Did the victim have an opportunityto beg for his or her life? Nope.

***

Considering only those matters properlybefore the [c]ourt, it is the sentence of thecourt *** that you be remanded to the custodyof the Illinois Department of Corrections fora period of 50 *** years."

We find that the trial judges remarks, while perhaps ill-advised, do not justify a resentencing hearing. A trial judge'sinclusion of some personal observations does not necessarily riseto an abuse of discretion. See People v. Steppan, 105 Ill. 2d310, 323 (1985). Any additional comments or observations made bythe trial judge are of no consequence where the record shows thecourt otherwise considered proper sentencing factors. People v.Bosley, 197 Ill. App. 3d 215, 222 (1990). The trial court notedthe violent nature of the crime at issue, the proximity of theshooting to a school, and the fact that defendant showed noremorse. We further note that a conviction for first degreemurder carries a sentence of imprisonment not less than 20 yearsand no more than 60 years. See 730 ILCS 5/5-8-1(a)(1)(a) (West1994). Defendant's sentence was within that range and is there-fore presumptively proper. See People v. Johns, 285 Ill. App. 3d849, 856 (1996). We find that no persuasive evidence exists inthe record indicating that the trial court considered inappropri-ate factors.

D. Cross-Appeal

The State argues on cross-appeal that the trial court erredby failing to impose consecutive sentences. As the State notes,the trial court only specifically sentenced defendant on the firstdegree murder conviction. Indeed, the mittimus in the record onlyshows entry of a conviction for first degree murder. This courtalready addressed this issue in codefendant Willis' appeal,stating:

"Supreme Court Rule 604(a)(1) (134 Ill.2d R. [6]04(a)(1)) provides that the Statemay only appeal from an order or judgment ina criminal case which results in dismissal ofa charge; 'arresting judgment because of adefective indictment, information or com-plaint; quashing an arrest or search warrant;or suppressing evidence.' To order thecircuit court to impose consecutive sentencescould result in a prohibited expansion of theState's limited right to appeal in a criminalcase. See People v. Robinson, 267 Ill. App.3d 900, 906 (1994). However, in People v.Arna, 168 Ill. 2d 107, 113 (1995), thesupreme court stated that '[a] sentence whichdoes not conform to a statutory requirementis void,' and found that the 'appellate courthad the authority to correct it at any time.'

Under section 5-8-4(a) of the UnifiedCode of Corrections (the Code) (730 ILCS 5/5-8-4(a) (West 1994)), consecutive sentencesare mandatory if the offenses were 'committedas part of a single course of conduct duringwhich there was no substantial change in thenature of the criminal objective.' If theseconditions are satisfied then consecutivesentences are mandatory if either: (1) one ofthe offenses was a Class X or Class 1 felonyand the defendant inflicted severe bodilyinjury, or (2) one of the offenses was aviolation of section 12-13 or 12-14 of theCriminal Code of 1961 (720 ILCS 5/12-13, 12-14 (West 1994) (sexual assault or aggravatedsexual assault)).

In the case at bar, each of therequirements for mandatory consecutive sen-tences has been met. First, the offenseswere the result of a single course ofconduct. Second, there was no substantialchange in defendant's criminal objectiveduring the course of the shootings. This wasnot a case where the defendant intended tocommit one crime, and in the course of thatcrime developed a new objective and committedanother. Third, attempted murder, which issubject to a Class X sentence, is coupled inthis case with the infliction of severebodily injury.

The trial court found defendant 'guiltyas charged' and subsequently sentenced him toa term of 50 years in the Illinois Departmentof Corrections. Yet the court did not spe-cifically sentence defendant on both thefirst degree murder conviction and theattempted first degree murder conviction. Infact, the [mittimus] in the record only showsentry of a conviction for first degreemurder. Therefore, since the court appar-ently sentenced defendant to concurrent termsand not consecutive terms, as required by theCode, we find that the circuit court abusedits discretion. Accordingly, we vacate the50-year sentence and remand this cause to thecircuit court for imposition of consecutivesentences on both first degree murder andattempt first degree murder." People v.Willis, No. 1-98-0379 (2000), slip order at 10-11 (unpublished order under Supreme CourtRule 23).

We conclude that Boler's gunshot wound constituted a "severebodily injury" for purposes of section 5-8-4(a) of the Code. SeePeople v. Johnson, 149 Ill. 2d 118, 159 (1992). We stand behindour decision in Willis and incorporate our sentencing analysisinto our decision here.

In his motion to cite additional authority, defendant drawsour attention to a recent United States Supreme Court case,Apprendi, v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000). In Apprendi, the court held that, "[o]ther thanthe fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63. Defendant argues that the State failed to meet Apprendi'srequirement because he received no notice of facts that couldsubject him to an increased penalty (i.e., the indictment againsthim did not allege that he caused Boler severe bodily harm). While Apprendi clearly applies to extended-term sentences(i.e., where aggravating factors may subject a defendant to a prisonterm exceeding the maximum), the State argues that Apprendi doesnot apply to consecutive sentencing situations under section 5-8-4(a) of the Code. So long as each consecutive sentence fallswithin the statutorily authorized range, the State argues, theindividual sentence imposed for each offense is not beyond themaximum and that Apprendi does not apply.

We agree with the State. Consecutive sentences determineonly the manner in which the sentence for each individual offenseis to be served and have nothing to do with the length of eachdiscrete sentence. Our supreme court made this clear in Thomasv. Greer, 143 Ill. 2d 271, 278 (1991). There, the court statedthat when sentences are "made consecutive to one another, a newsingle sentence [is] not formed." The court supported itsholding, in part, by noting that "'[t]he term "consecutive sen-tences" means sentences following in a train, succeeding oneanother in a regular order, with an uninterrupted course orsuccession, and having no interval or break.'" (Emphasis inoriginal.) Thomas, 143 Ill. 2d at 278, quoting 21 Am. Jur. 2dCriminal Law