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FIRST DIVISION
June 11, 2001

Defendant Erven Walls was convicted in a jury trial of armed robbery, armed violence,aggravated kidnaping, and aggravated battery. He was sentenced to 50 years' imprisonment. Onappeal, defendant raises four issues. He contends that: (1) he was denied due process because theState failed to tender material prior to trial relating to the victim's immigration status and anypending investigations by Immigration and Naturalization Services; (2) defendant's trial counselwas ineffective for failing to uncover the victim's immigration file prior to trial; (3) the trial courterred in sentencing defendant to consecutive sentences because section 5-8-4(a) of the Unified Codeof Corrections (730 ILCS 5/5-8-4(a) (West 1998)) is unconstitutional; and (4) he was improperlysentenced on the charge of armed violence. For the reasons that follow, we affirm defendant'sconviction and remand for resentencing.

BACKGROUND

In May 1997 when Yinka Jinadu arrived at his estranged wife Delores' apartment he washit over the head with a baseball bat, stripped of his clothing and tied up with an electrical cord.

At trial, Jinadu testified that he came to the United States in 1994, worked for a car dealershipand eventually started his own trucking company. He met and married Delores in 1995 and theyseparated in 1996. In April 1997, Delores began to work as Jinadu's secretary. On May 10,1997, Delores did not arrive at work as scheduled and Jinadu paged her. After calling him,Delores explained that her car was broken and asked that Jinadu come to pick her up at herapartment. Jinadu drove to Delores' apartment and arrived at 10:15 a.m. Delores invited Jinaduup to the apartment to wait while she finished getting ready. As Jinadu walked through thethreshold of the door he was hit on the head with a baseball bat and lost consciousness.

The evidence at trial showed that, when Jinadu awoke, he saw his wife and three or fourother men in the room. A man stood nearby with a baseball bat in one hand, a gun in the otherhand and a scarf covering the lower portion of his face. Jinadu also saw defendant, Erven Walls,with a gun in his hand. Jinadu had met defendant on two prior occasions and knew him to be hiswife's boyfriend.

The man with the baseball bat walked over to Jinadu, told him to keep his eyes closed and hit him on the head again with an iron object. Defendant then walked over to Jinadu and hit himrepeatedly on the head and around the eyes. Defendant and the man with the bat then pulledJinadu into the bathroom, handcuffed him and placed him in the bathtub. Both men demanded toknow where Jinadu kept his car and money. One of the men, codefendant Tony Hillard, came tothe bathroom with a pillow and a gun. He began to place the pillow on Jinadu's face but the manwith the bat stopped Hillard and told him that they should wait. Five hours elapsed during whichtime Jinadu was threatened by the various offenders to tell the men where all his money waskept. Eventually, codefendant Hillard placed a towel over Jinadu and turned on the faucet in thetub. The men then turned the light off and left.

Around 7 p.m. Jinadu extricated himself from the electrical tape binding his feet andclimbed out of the tub. He was unable, however, to release the handcuffs binding his hands. Heopened the bathroom door and saw that he was alone in the apartment. He walked out of theapartment and onto the street where he saw the man with the baseball bat and codefendantHillard standing across the street. Upon seeing him, both men fled down the street.

Prior to trial, defendant requested and the State provided him with information regardingJinadu's background. The State indicated that Jinadu had no criminal history and that it wasunaware of any pending investigations against him. Defendant filed a motion to suppress hisstatements which the court denied and the case proceeded to trial.

Officer Ramirez testified that he was on patrol on May 10, 1997, when he was stopped bya young boy who directed him to Jinadu. At the time Jinadu was on the street and had an openhead wound, gray duct tape on his mouth and chin and his hands were bound in handcuffs. Jinadu showed Officer Ramirez Delores' apartment. As Officer Ramirez entered the apartmenthe saw hundreds of plastic bags, a scale, white powder, spoons and breathing masks. OfficerRamirez also saw that there was blood in the bathtub. From the apartment he recovered twoloaded revolvers and documents of identification for defendant, Zachary T. Walls, Jerome Walls,Germaine Craine and Delores Jinadu.

Officer Schmidt testified that while Officer Ramirez was in the apartment, he waited withJinadu outside of the apartment. He stated that Jinadu identified Delores by name but was unableto name any of the other offenders. Detective Bradley testified that he was assigned to follow upon the case. After talking to Jinadu, Detective Bradley had the names of Delores, defendant andGermaine Craine. Jinadu told the detective that the offenders wanted money and drugs. OnSeptember 17, 1997, Detective Bradley arrested defendant and Delores at 1121 South StateStreet. Walls was placed in a lineup and was identified by Jinadu as one of the offenders. Detective Bradley also learned that one of the recovered guns was registered to Laretha Hillard. After speaking to Laretha Hillard, Detective Bradely arrested codefendant Tony Hillard, who waslater placed in a lineup and identified by Jinadu as one of the offenders.

Assistant State's Attorney Michael O'Malley testified that he interviewed defendant atthe police station. Defendant told him that his uncle planned to rob Jinadu and threateneddefendant if he did not help. For his cooperation in the plan to rob Jinadu, defendant wasrewarded with 10 grams of heroin. The plan consisted of having Delores call Jinadu to comeover to her apartment at which time someone would hit him over the head. Defendant furtherstated that after Jinadu arrived at Delores' apartment, he and Delores left and she dropped himoff at his sister's home.

Defendant presented stipulated testimony from Janet Lupa, a court reporter, who recordedJinadu's statement before the grand jury. Jinadu's testimony at trial varied at times from therecording of his testimony before the grand jury. Jinadu stated that as he arrived at Delores'house, he saw three of the offenders in front of the building. Following deliberations, the juryfound defendant not guilty of attempted murder and guilty of aggravated kidnaping, armedrobbery, aggravated battery, and armed violence.

Following the trial defendant filed a motion for a new trial. Based on Jinadu's victimimpact statement, defendant believed that an ongoing investigation was in effect withImmigration and Naturalization Services (INS) regarding Jinadu's involvement in the presentcase. Jinadu had stated in the victim impact statement that, "[b]ecause of this incident, I am notable to visit my family in Africa due to INS." Defense counsel further stated that he had filed amotion for discovery requesting any reports relating to any INS investigations regarding Jinadu's involvement in the present case but that the State had failed to tender any information in relationto any investigations that INS was conducting prior to trial. The State responded that it hadconducted an exhaustive investigation and that it found no information involving any type ofstate, local or federal investigation regarding Jinadu. Defense counsel requested additional timeto inquire with INS as to any investigations it may have involving Jinadu. Defense counselrequested that the State provide him with the names of people it contacted at INS. Prior to thenext court date the State tendered the INS file number and the name of the investigator it spoketo at INS.

At the next court date, defense counsel stated that he had spoken to a supervisor at INSwho informed him that Jinadu's INS file was closed The trial court then allowed defense counselto question Jinadu regarding his immigration status. Defendant stated that during the trial hewanted to visit his father in Africa but that immigration officials told him that he must remain inthe United States for the duration of the trial. Defendant further stated that he filed anapplication for permanent residency but that he became a citizen upon his marriage to Delores. Defendant produced a laminated card from INS for employment authorization. Thereafter, thetrial court denied defendant's motion for a new trial.

Defendant then filed a motion for reconsideration. Defense counsel informed the courtthat two days after the denial of the motion for a new trial he spoke to a representative from theUnited States Attorney's office who informed him that Jinadu was an illegal alien. Defensecounsel argued in his petition that in March 1998 the spousal petition for permanent residencywhich Delores had filed on behalf of Jinadu had been withdrawn, thereby making Jinadu anillegal alien subject to deportation. Defense counsel argued that Jinadu's impact statement wasinaccurate in that he stated that he was unable to leave the country because of his involvement inthis case whereas in actuality Jinadu was unable to leave the country due to his residency status. Defense counsel further stated that he had indicated to the State that he had questions regardingJinadu's immigration status and had inquired whether there were any investigations concerningJinadu but that the State had inaccurately assured defense counsel that there were no suchinvestigations pending. In light of Jinadu's untruthfulness regarding his immigration status,defense counsel urged the trial court to reconsider defendant's motion for a new trial and motionto reduce defendant's sentence. Following arguments from both sides, the trial court denied bothmotions. This appeal followed.

ANALYSIS

I. Discovery Violation

Defendant first argues that the State committed a discovery violation by failing to tenderinformation regarding the victim's immigration status and any pending investigations againsthim. Defendant maintains that the prosecution's failure to disclose this favorable and materialevidence denied him due process and a fair trial and sentencing hearing in violation of Brady v.Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); People v. Sims, 167 Ill. 2d 483(1995).

In Brady, the United States Supreme Court set forth the government's affirmative duty todisclose evidence that is favorable to the defendant. The Court established that where evidenceis material either to guilt or to punishment, regardless of the good faith or bad faith of theprosecution, the suppression of such evidence favorable to an accused upon request violates dueprocess. Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. In making itsmateriality determination, a court should consider the cumulative effect of all suppressedevidence favorable to the defense, rather than consider each piece individually. People v.Hobley, 182 Ill. 2d 404, 433 (1998). Though the judgment of the trial court in these matters isgiven great weight, a reviewing court will find an abuse of discretion when a defendant isprejudiced by the discovery violation and the trial court fails to eliminate the prejudice. People v.Matthews, 299 Ill. App. 3d 914, 918 (1998), citing People v. Weaver, 92 Ill. 2d 545, 559 (1982).

Initially, we must address the State's claim that defendant has waived this issue onappeal. The State correctly observes that defendant's written posttrial motion framed the issue interms of the court's failure to permit cross-examination of the victim regarding his immigrationstatus rather than specifically alleging that the State committed a Brady violation in not tenderingsuch material to the defense. The well-settled general rules are that issues not raised both duringtrial and in a posttrial motion are effectively waived for purposes of review. People v. Enoch,122 Ill. 2d 176 (1988). Moreover, our supreme court has held that having specified the groundfor his objection at trial, a defendant waives any alternative objections not specified. People v.Steidl, 142 Ill. 2d 204 (1991). As such, defendant's argument on appeal has been waived as hedid not raise this issue in his posttrial motion or during arguments.

Despite waiver, however, defendant's argument would not succeed on the merits. Contrary to defendant's argument, the evidence in question in this case is not such that it createda reasonably probability that, had the evidence been disclosed to the defense, the result of theproceeding would have been different. Before trial, defense counsel requested any and all reportsor documents related to Jinadu that the State's Attorney's office had access to, including but notlimited to those of any law enforcement agency or multijurisdictional units. The State respondedthat it had no knowledge that any of the potential witnesses had criminal convictions orinvestigations pending against them. During trial, defense counsel cross-examined Jinadu as tohis immigration status. Defense counsel asked Jinadu whether he was seeking to become anAmerican citizen to which Jinadu answered yes. Defense counsel then asked him whether therewas a pending investigation with INS regarding his immigration status. The State objected andthe trial court sustained this objection on the grounds of relevance.

During the posttrial proceedings, defendant's counsel sought additional time to ascertainwhether there were any pending investigations against Jinadu based on Jinadu's victim impactstatement. In the victim impact statement, Jinadu stated, "because of this incident I am not ableto visit my family in Africa due to INS." Defense counsel requested that the State should "lookinto this matter to see if there is such material that [was] discoverable." The State responded,"[We] inquired of INS, if he was the focus of any investigation whatsoever and found noinformation at all. *** We were told there were none." Defense counsel then requested that theState provide him with the names and numbers of the people the State contacted at INS regardingthe victim. Prior to the next court date, the State provided defense counsel with a file numberand the name of an investigator. At the next court date, defense counsel informed the trial courtthat he had spoken to a supervisor at INS who indicated that a spousal petition application hadbeen filed on behalf of Jinadu by his wife, Delores. The supervisor also reported that the petitionwas withdrawn and the file was deemed closed. He further indicated that Jinadu "may be anillegal alien" as a result of the withdrawal of the petition.

Based on this information, defense counsel sought another continuance and requested thathe be able to subpoena an INS district director in order to obtain the closed file. The Stateobjected, arguing that such information was not only collateral but also irrelevant to any issuespresented at trial. The State indicated, "[E]ven if he is an illegal alien, that has nothing to dowith the fact that he can't be victimized by the acts of this defendant and his partners." The trialjudge denied defense counsel's motion for another continuance, stating that he had granted fourdefense continuances since the motion for a new trial was filed. However, the trial judge alloweddefense counsel to cross-examine Jinadu as to his immigration status. Jinadu explained that hiswife filed a petition for citizenship on his behalf and he produced an INS employmentauthorization card which he showed to defense counsel.

When asked to explain his comment in the victim impact statement, Jinadu replied:

"What it exactly means is during that time that I decided to visitmy father, this case was on, and immigration officer tried to alertme to understand that they need me in court by the time I'mvisiting my family in Africa. She asked me not to leave."

Defense counsel asked Jinadu to clarify whether the INS officer asked Jinadu not to leave thecountry as a result of his involvement in the criminal case or because of the petition forcitizenship which was pending before the INS. Jinadu replied, "Talking about this Judge Toomincase." Defense counsel asked Jinadu which officer he spoke to at INS. The State objected andthe trial court sustained the objection stating, "I heard about enough of this. I've heard aboutenough."

The trial court ended any further questions by defense counsel stating:

"As far as I'm concerned, when Mr. Jinadu indicated thathe didn't have to apply to anything because he had married a U.S.citizen, that struck about as responsive and resonant chord as Icould imagine. *** Could he have still been married to her eventhough she's in prison for trying to kill him? He's still married toher. He showed you a card which shows that he's here legally untilnext April. He was here legally when this case was called for trial. He's here legally now, and your [sic] just, you're wasting a lot oftime."

The trial court denied defendant's motion for a new trial and the matter then proceeded tosentencing. Following sentencing, defendant filed a motion for reconsideration. Defensecounsel argued that the information presented by the State before the jury was designed to makeJinadu appear like an innocent victim; a victim that had no criminal history or any drugconnections. Moreover, the image perpetuated by the State was that of a hard-workingimmigrant who was representative of the "American Dream" by coming to the United States,starting a successful business and marrying an American woman. This image, however,according to defense counsel, was inaccurate in light of Jinadu's illegal alien status. Defendantargued that Delores' actions in withdrawing the spousal petition seeking permanent residencychanged Jinadu's immigration status and prejudiced him both against her and her boyfriend,defendant. The trial court denied defendant's motion for reconsideration.

To establish a violation of the discovery rule, suppressed evidence must be both favorableto the accused and material. People v. Hobley, 182 Ill. 2d 404, 432 (1998). If the omittedevidence creates a reasonable doubt that did not otherwise exist, a constitutional error occurred. United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 355, 96 S. Ct. 2392, 2402 (1976);People v. Diaz, 297 Ill. App. 3d 362, 370 (1998). In cases subsequent to Brady, the SupremeCourt delineated the standard for determining whether undisclosed evidence is "material." UnderBrady and its progeny, favorable evidence is material, and constitutional error results from itssuppression by the government, if there is a reasonable probability that, had the evidence beendisclosed to the defense, the result of the proceeding would have been different. United States v.Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985); Sims, 167 Ill. 2dat 507. A reasonable probability is a probability sufficient to undermine confidence in theoutcome. People v. Alduino, 260 Ill. App. 3d 665 (1994). When the reliability of a givenwitness may well be determinative of guilt or innocence, the nondisclosure of evidence affectingcredibility falls within the general Brady rule. Giglio v. United States, 405 U.S. 150, 154, 31 L.Ed. 2d 104, 108, 92 S. Ct. 763, 766 (1972).

The Brady disclosure requirement has been codified in Illinois in Supreme Court Rule412 (134 Ill. 2d R. 412). Rule 412 provides, in relevant part:

"(c) Except as is otherwise provided in these rules as toprotective orders, the State shall disclose to defense counsel anymaterial or information within its possession or control whichtends to negate the guilt of the accused as to the offense charged orwould tend to reduce his punishment therefor." 134 Ill. 2d R.412(c).

The prosecution's duty to disclose under this rule is a continuing one, requiring promptnotification to the defendant of the discovery of any additional material or information, up to andduring trial. 134 Ill. 2d R. 415(b); People v. Watson, 76 Ill. App. 3d 931, 935-36 (1979). Amongthe factors to be considered in determining whether a new trial is warranted are the closeness ofthe evidence, the strength of the undisclosed evidence, and the likelihood that prior notice wouldhave helped defendant discredit the evidence. Alduino, 260 Ill. App. 3d at 670.

We note that the information which defendant argues should have been tendered to him atthe outset of the trial basically consists of the INS file number and the name of the investigatorhandling Jinadu's case file. This is the only information that the State had in its possession. Thequestion that must be answered at this juncture is whether this information was material forpurposes of a Brady violation. As the State repeatedly indicated, and the record demonstrates,the State did not have any further information, documents or paperwork to tender to defendant inrelation to Jinadu's immigration status. Based on the State's inquiry of INS, there were nopending investigations relating to Jinadu. Defense counsel himself stated that he did not believethat the State was deliberately withholding information from the defense. Defendant's argumenton appeal is that the State should have researched the issue further. Contrary to defendant'sargument, however, the State exercised due diligence in investigating and reporting theinformation provided to it by INS.

Moreover, even after defense counsel further investigated the matter himself, he wasunable to provide any additional information to the trial court. Essentially, the only informationprovided was the speculation that Jinadu "may be an illegal alien." The trial court granteddefense counsel a number of continuances in order to investigate his allegation that Jinadu wasan illegal alien and that there was a pending investigation against him. However, the fruits ofdefense counsel's search consisted only of information relating to the withdrawal of the spousalpetition and that Jinadu's legal immigration status "may have expired" with the withdrawal of thepetition. The trial court further allowed defense counsel to recall Jinadu prior to sentencing andfurther question him as to his immigration status. Again, no additional or material informationwas learned. To the contrary, Jinadu provided defense counsel with an employment card issuedby INS corroborating his immigration status. Significantly, the trial court, after repeatedly askingdefense counsel to explain the relevance of Jinadu's immigration status, explicitly ruled that suchevidence was not relevant in the context of this case. Based on this record and the totality of thecircumstances we conclude that the evidence which defense counsel sought was not material inthe present situation as it would not have reasonably altered the outcome of the trial.

The appropriate inquiry is not whether the evidence might have helped the defense, butwhether it is reasonably likely that it would have affected the outcome of the case. Sims, 167 Ill.2d at 507. In other words, the question is whether, in the absence of the undisclosed evidence,defendant received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Strickler v. Greene, 527 U.S. 263, 289-90, 144 L. Ed. 2d 286, 307, 119 S. Ct. 1936, 1952 (1999). Here, the evidence of Jinadu's immigration status, even if it were shown that he was indeed anillegal alien, does not satisfy the threshold requirement of materiality under a Brady analysis. Further, it would not have affected the outcome of the trial had defense counsel had thisinformation in his possession at the beginning of the trial. It is reasonably probable that theoutcome of neither the trial nor the sentencing hearing would have been different had defendanthad additional information regarding Jinadu's immigration status. We further do not believe thisevidence, even if it were available, could reasonably have put the entire case in such a differentlight so as to undermine defendant's conviction. As such, the State committed no Bradyviolation.

II. Ineffective Assistance of Counsel

Defendant next contends that he was denied effective assistance of counsel where hisattorney failed to uncover Jinadu's INS file prior to trial. As we have resolved the Brady issueand found that the information defendant sought was not material and did not prejudicedefendant, it is unnecessary to resolve the additional issue of ineffective assistance of counsel forfailing to subpoena such information prior to trial. The court need not determine whetherdefense counsel's performance was deficient before examining whether defendant wassufficiently prejudiced by the alleged deficiencies. People v. Clemons, 277 Ill. App. 3d 911, 921(1996). Here, since the evidence was not material to defendant's guilt of the crime charged, itdid not prejudice the defendant and was not outcome determinative. See People v. Goldsmith,259 Ill App. 3d 878 (1994).

III. Apprendi Issue

Relying on the Supreme Court case Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.Ed. 2d 435, 455, 120 S. Ct. 2348, 2363 (2000), the defendant contends section 5-8-4(a) isunconstitutional and, therefore, the trial court erred in imposing consecutive sentences under thissection after finding the defendant caused severe bodily injury to the victim. In Apprendi, theSupreme Court held unconstitutional a New Jersey statute that allowed the trial judge to imposean extended-term sentence where the trial judge found by a preponderance of the evidence thatthe defendant acted with a racially biased motive in committing the offense. Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455-56, 120 S. Ct. at 2363. The Court held that, "[o]ther than the fact ofa prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Apprendi Court concluded that it isunconstitutional for a legislature to remove from the jury the assessment of facts that increase theprescribed range of penalties to which a criminal defendant is exposed. Apprendi, 530 U.S. at490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363. In this case the trial judge sentenced defendantunder 730 ILCS 5/5-8-4(a), which calls for the imposition of consecutive sentences in cases ofmultiple convictions arising out of a single course of conduct if one of the offenses is either aClass 1 or Class X felony and the court finds that the defendant inflicted severe bodily injury. Section 5-8-4(a) states in pertinent part:

"The court shall not impose consecutive sentences for offenseswhich were committed as part of a single course of conduct duringwhich there was no substantial change in the nature of the criminalobjective, unless, one of the offenses for which defendant wasconvicted was a Class X or Class 1 felony and the defendantinflicted severe bodily injury ***." 730 ILCS 5/5-8-4(a) (West1998).

Recently, our supreme court found in People v. Wagener that Apprendi concerns are notimplicated by consecutive sentencing. People v. Wagener, No. 88843, slip op. at 14 (June 1,2000). The Wagener court reasoned that because consecutive sentences remain discrete and donot transmute into a single sentence, they cannot run afoul of Apprendi, which only addressessentences for individual crimes. Wagener, slip op. at 14-15. Accordingly, the Wagener courtdetermined that section 5-8-4(b), which allows the imposition of consecutive sentences where thesentencing court is of the opinion that such a term is necessary to protect the public from furthercriminal conduct by the defendant, passes constitutional muster. Wagener, slip op. at 15. Following the reasoning of Wagener, we conclude that section 5-8-4(a), under which defendantwas sentenced, is also constitutional. Thus, we affirm the trial court's order imposingconsecutive sentences.

IV. Armed Violence Sentence

Additionally, defendant contends that he was improperly sentenced on the charge ofarmed violence. Before January 1, 1995, armed violence with a category I weapon was a Class Xfelony, punishable by a minimum of six years' imprisonment. 730 ILCS 5/5-8-1(a)(3) (West1994). However, Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), commonly knownas the Safe Neighborhoods Act, increased the minimum term for armed violence to 15 years'imprisonment. 720 ILCS 5/33A-3(a) (West 1996). In the present case, the trial court sentenceddefendant to 25 years' imprisonment on the charge of armed violence under Public Act 88-680. In People v. Cervantes, 189 Ill. 2d 80 (1999), the Illinois Supreme Court held that Public Act 88-680 violates the single subject clause of the Illinois Constitution and is unconstitutional. Effective April 13, 2000, while defendant's appeal was pending, Public Act 91-696 (Pub. Act 91-696, eff. April 13, 2000) replaced Public Act 88-680 under which defendant was sentenced withan identical mandatory minimum sentencing provision. The State contends that this reenactedstatute should apply retroactively in this case.

Application of the reenacted sentencing provision would violate the ex post facto clausesof the Illinois and the United States Constitutions. Ill. Const. 1970, art. I,