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FIFTH DIVISION
May 23, 2003

Following separate jury trials, defendant, Ronald Wembley(defendant), and Roosevelt Stevens (codefendant), were bothconvicted of first degree murder. 720 ILCS 5/9-1(a)(1) (West 1998). The trial court sentenced defendant to 45 years in prison. Thisappeal followed.

On appeal, defendant argues that he was denied a fair trialbecause: (1) the trial court questioned his venire en masse andasked potential jurors to defer their questions; (2) the judge whoconducted the voir dire was different from the judge who presidedover the trial; (3) the State made improper closing arguments; and(4) the trial court erred in considering a void prior conviction insentencing defendant. For the following reasons, we affirmdefendant's conviction and sentence.

BACKGROUND

Defendant and codefendant were both tried before JudgeMcSweeney-Moore for the first degree murder of Tyree Williams. There were two juries, one for the defendant and one for thecodefendant.

On September 7, 2000, Judge Sacks conducted the voir dire forJudge McSweeney-Moore for the impending trial of the defendant.Judge Sacks instructed the venire members en masse about the requirements in Supreme Court Rule 431(b)(177 Ill. 2d R.431(b)) andPeople v. Zehr, 103 Ill. 2d 472 (1984), that: (1)the defendant waspresumed innocent of the charges against him; (2) the defendantcould only be convicted of the charged crime if the State provedthe defendant guilty beyond a reasonable doubt; (3) the defendantwas not required to present any evidence of his innocence; and (4)the defendant's failure to testify could not be held against him. During the voir dire, Judge Sacks asked the venire persons: whetheror not any person knew the defendant; whether anyone had "anydifficulty following the law about the presumption of innocence andproof beyond a reasonable doubt"; whether anyone had a problem with"the State has the burden of proof beyond a reasonable doubt";whether "anyone in the courtroom serve[d] on a jury within the lastyear"; whether anyone had any "physical, emotional infirmities thatwould prevent [him/her] from serving on the case." When a venireperson raised his/her hand in response, Judge Sacks would tell theperson that he would discuss the question when the venire personwas called as a potential juror. Defense counsel raised noobjections.

After addressing the entire venire, Judge Sacks questionedeach juror individually. During individual questioning, JudgeSacks asked each and every potential juror whether he or she couldbe fair and impartial. Each of the venire members who eventuallywas picked as a juror answered affirmatively to the question. Judge Sacks also asked every venire member but two who later becamejurors in this case whether they had raised their hands in responseto the earlier questions. They all answered in the negative. However, Judge Sacks did not ask jurors Elizabeth Hall and SallySellers whether they had raised their hands earlier.

During voir dire, the State attempted to use a peremptorychallenge to exclude juror Sally Sellers and defense counselobjected. After hearing arguments from both parties, Judge Sacksdenied the State's peremptory challenge. Sally Sellers served asa juror in this trial. After a jury was selected, the jurorsreported to Judge McSweeney-Moore for the trial.

Steven Williams (Steven), the victim's brother, testified that he was serving a 10-year sentence for aggravated vehicularhijacking and possession of controlled substance with intent todeliver. Steven testified that on April 18, 1998, he and Tyreedrove their aunt's red Cavalier to Stateway Gardens to look forgirls. Stateway Gardens is a public housing complex located at35th and South State Streets. The buildings comprising theStateway Gardens were controlled by the Gangster Disciples (GD's)or the Black Disciples (BD's), rival street gangs. Afterconversing with two girls at the complex, they left. As Tyree wasdriving down a fire lane, Steven saw Ronald Wembley (defendant)raise a gun and aim at them. Seeing this, Steven urged Tyree todrive into a playground to escape. Steven testified that when thecar was in the basketball court, the defendant fired a shot whichhit their car. The bullet penetrated the car's trunk and hit Tyreein the elbow. After being shot, Tyree lost control of the car andcrashed into a parked car. After the crash, Tyree and Steven triedto escape on foot. As they were fleeing, about 10 to 15 GD'scaught them and dragged Steven into a building and beat him. Steven escaped with minor injuries because Black Disciple memberscame to his rescue. Meanwhile, other GD's caught Tyree and draggedhim to the side of a building to beat him. After escaping, Stevenwent to look for Tyree and found him lying dead beside a building. Steven stayed by his brother until the police arrived. He gave thepolice the names of the defendant and another Gangster Disciple(GD's) who had jumped him and Tyree.

On April 19, 1998, Steven went to the police station to viewa lineup. Steven identified Roosevelt Stevens (Stevens) as one ofthe GD's who dragged Tyree away. Steven also identified thedefendant in a photo array as the person who fired the shot intothe car that hit Tyree's elbow.

Antwone Lee (Lee) testified that he and the defendant wereboth GD's. Lee testified that the GD creed was to "aid and assist"any GD under any circumstances. If a GD did not follow this rule,the GD would be "violated." "Violated" means the GD would bebeaten, punched and kicked by fellow gang members. Lee furthertestified that the first rule of the GD was "silence and secrecy,"which means no outsider is privy to GD business. The punishmentsfor the violation of this rule range from a five-minute beating inthe face with the hands tied behind the back to being killed byother GD's.

Lee also testified that GD's had to do security duty. Whileon security duty, the GD's would carry handguns. Lee testifiedthat he had seen defendant carry a 44 Magnum silver handgun 10 to15 times while defendant was carrying out security duties.

Prior to joining the GD's, Lee had been a member of a rivalstreet gang, the BD's, for three years. On April 18, 1998, he wasplaying basketball with his fellow gang members, Stevens, ArthurPinex (Pinex), B.B., Tiny, Mute, and several other GD's. In fact,all the people on the basketball court were GD's. Lee testifiedthat as he was playing ball, defendant approached them with the 44Magnum handgun sticking out of the pocket of his jacket. Defendantthen told them "if we hear shots, don't worry, they [are] comingfrom him because he just saw 2 boys from DuSable High School thatwere [BD's] that [had] jumped on him." After informing the otherGD's, defendant then went to the corner of the 3519 building towait for the red Cavalier. Lee further testified that he saw a redCavalier driving down the fire lane, approaching the 35th Streetexit. As the car passed the basketball court, the GD's stopped thegame to let the car pass. Lee testified that he saw defendantfiring a "big silver gun" at the red Cavalier. After the shots,the red Cavalier lost control and crashed into a parked car. Leetestified he saw the victim and Steven jump out of the car andstart running. At this time, defendant yelled at the GD's on thebasketball court, "folks, catch them bitches." The GD's aremembers of a group of gangs that call themselves "folks."

The GD's chased the victim and Steven. Lee testified thatStevens caught Steven and along with other GD's dragged Steveninside a building to beat him. Lee also testified that Pinex andseveral other GD's caught the victim and dragged him to the side ofthe building. Pinex knocked the victim unconscious. Lee himselfthen kicked the victim several times. After kicking the victim,Lee walked away. As Lee was leaving, he saw another GD, Haynes,run up to the victim with a small black pistol, stand over thevictim and fire five shots into him.

On May 1, 1998, along with his mother, Lee went to the policestation to confess his participation in the crime. Lee wasarrested and charged with the murder of the victim. Later, throughhis lawyer, Lee agreed to testify for the State in this trial, andin return, the State recommended that Lee serve a sentence of 20years for the murder.

Chikira Parker, 16, testified that on April 18, 1998, shelived in Stateway Gardens. Parker testified that she knew Haynesand Lee and that she was with Samantha Finley on the day of theshooting. They were talking to the victim and his brother. Parkerfurther testified that she saw the victim drive down the fire laneand saw defendant stop the victim's car. She also saw defendantsay something to Steven, heard a gunshot, and saw a gun in thedefendant's hand. After the gunshot, Parker saw the victim's carcrash into another car. Parker saw Stevens grab Steven out of thecar. Stevens then dragged Steven inside a building. Parker alsotestified that as Steven was being dragged away, she saw Lee andHaynes drag the victim to the side of a building. Lee then startedbeating the victim. Parker heard two gunshots. Parker sawdefendant and Haynes standing by the victim and Haynes had a gun inhis hand.

Parker testified that gang crimes police officer Milton Seatontried to talk to her at the homicide scene. Parker refused to talkto Officer Seaton at that time because she was afraid that the GD'swould retaliate against her. Officer Seaton then asked Parker tomeet him in a nearby school. Once there, Parker told Officer Seatonwhat happened. Parker viewed a photo array in the police stationand identified defendant as the person who shot at the victim'scar. Parker also identified Haynes as the person who had a gun inhis hand when the victim was shot at the side of the building. Theday after the shooting, Parker went to the police station to viewa lineup. She identified Stevens as the person who beat up StevenWilliams. Parker stated that Samantha Finley was with herthroughout the entire incident.

Samantha Finley testified that she was 17 years old and livedat 3618 South State Street on the day of this incident. On the dayof the trial, Finley was still living at the Stateway Gardens. Finley testified that she knew Steven and Tyree Williams. She knewthat Steven was a BD; however, the victim had no gang affiliation. She also knew Stevens and Haynes were both members of the GD's. Finley testified that she talked to the victim and Steven prior tothe shooting. After the conversation, she went home and then to ashopping mall. Finley testified that when she returned from themall, Parker told her what had happened to Tyree and Steven. Finley denied witnessing the murder. Finley testified thatOfficers Seaton and Kimble interviewed herself and Parker after theshooting. In this interview, Finley repeated Parker's account ofthe events to the police officers.

During trial, the State introduced evidence that Finley hadtestified before a Grand Jury several days after the shooting. Inthe Grand Jury proceeding, Finley testified that she saw the victimdrive down the fire lane. The victim drove off quickly as someoneapproached the car. Meanwhile, she saw Tyrell Foster box thevictim in with a white car. As the victim was boxed in, Finley sawthe defendant, Bobby Ellis, Lee, Stevens and Haynes approach thevictim's car. As the GD's approached the victim's car, she saw thedefendant, Lee and Haynes pull the victim out of the car, drag himto the side of a building and beat the victim for about fiveminutes. She also saw Stevens and Ellis grab Steven Williams outof the car and drag him into a building. Finley also testifiedthat she saw Stevens and Lee had guns on them, but she did not seethem shoot their guns.

Chicago police officer Dennis Stenkus testified he was aforensic investigator, and on April 18, 1998, he received a calland went to the homicide scene. As Officer Stenkus arrived at thescene to collect evidence, he saw a bullet hole in the trunk of ared Cavalier. There were also bullet holes in the backseat and inthe dashboard of the red Cavalier. Officer Stenkus testified thatall the bullet holes appeared to be along the path of a singlebullet. However, Officer Stenkus did not recover any spent bulletor shell casing on the scene.

Chicago police gang crimes officer Milton Seaton testifiedthat on April 18, 1998, he was called to a homicide scene atStateway Gardens with his partner, Officer Ronald Kimble. WhenOfficer Seaton arrived at the scene, the victim was already dead. He then tried to collect evidence and interview witnesses. He sawParker and Finley near the crime scene. Officer Seaton questionedboth Parker and Finley, who indicated that they saw what transpiredbut refused to talk to the police on the scene. Officer Seatonarranged to meet Parker and Finley behind a nearby school. In thatmeeting, Finley told Officer Seaton that she saw Stevens and Leedrag Williams out of the red Cavalier. The victim was dragged outof the car by the defendant and Haynes.

The next day, Officer Seaton arrested Stevens at thebasketball court located at 3542 South State Street. On April 26,1998, Officer Kimble apprehended the defendant at 4844 South StateStreet. With permission, Officer Kimble searched defendant'sapartment and recovered a .44-caliber handgun.

Illinois State Police forensic scientist Karen Heard testifiedshe received 11 fingerprints taken from the victim's car by OfficerStenkus for comparison. Seven of the fingerprints belonged toSteven Williams. The other fingerprints did not match with anyoneinvolved in this murder. Heard also testified that a fingerprintrecovered from the barrel of the .44 caliber handgun belonged tothe defendant.

The victim's aunt, LaTonya Dandridge, testified that on theday of the shooting, the victim was driving her red Cavalier. After the police investigation, Dandridge took the car to a garagefor repair. The mechanic recovered a bullet from the radiatorwhich Dandridge took to the police.

Doctor Edmund Donoghue, the chief medical examiner, testifiedthat he performed the autopsy on the victim. He found four gunshotwounds on the body. The first and second gunshot wounds wereinflicted on the victim's skull; the third bullet wound was on theback; the fourth wound was on the victim's right elbow, and therewas an exit wound on his right arm. Dr. Donoghue further testifiedthat the victim had many other injuries to his body. However,those injuries were not inflicted by a firearm. Dr. Donoghueopined that the victim's death was caused by the multiple gunshotwounds and the manner of death was homicide.

Illinois State Police forensic scientist Laura Fleming testified as a firearm expert. Fleming testified that the threebullets recovered from the victim's body were fired from the samegun. However, these three bullets were not fired from the .44-caliber handgun found in the defendant's apartment. She alsotestified that the bullet recovered from the Cavalier's radiatorwas not suitable for microscopic comparison.

Assistant State's Attorney, Geraldine D'Souza testified thatafter an interview, the defendant signed a handwritten statementabout the shooting. In his statement, defendant related that onthe day in question, he was on the sixth floor of the buildinglocated at 3519 South Federal Avenue when he heard gunshots. Thedefendant took his .44-caliber handgun, checked that it was loaded,and went downstairs to see whether any GD needed assistance. Therewere three bullets in his gun. As defendant was outside thebuilding, he saw two men in a red Cavalier. The defendant told hisfellow GD's that the BD's were there to cause trouble. Defendantsaid that neither the victim nor Steven Williams threw any gangsigns, nor was the victim armed. The defendant said that he thentook his gun out, pointed at the red Cavalier, and fired one shot. He did not know whether he hit the car. In the confession, thedefendant stated that as he shot at the red Cavalier, he knew hemight hurt or kill one of the persons in the car. After the shotwas fired, the red Cavalier hit a pothole and swerved into a parkedcar. After the crash, the victim and Steven fled. Defendant thensaw several GD's who chased, caught and dragged the victim andSteven to the 3544 South State Street building. Seeing the twopersons being dragged away, defendant then gave his gun to anotherGD and asked him to hide the gun behind the door on the thirteenth floor. The defendant then went to visit a friend. While there, aGD came to tell the defendant that one of the men in the redCavalier was killed. Defendant went out to the balcony and sawsomeone lying under a white sheet. The police were on the scene. Two days later, the defendant asked the same GD who hid his gun toretrieve it for him. Defendant also said that the gun that thepolice found in his apartment was the same gun that he used toshoot at the red Cavalier. Defendant stated he was not coerced bythe police or the assistant State's Attorney into writing hisconfession.

The People rested.

Defense counsel called Assistant State's Attorney (ASA), DanGroth to testify. ASA Groth testified that he took a writtenstatement from Antwone Lee after his arrest. In Lee's statement,he did not say that the defendant came to the basketball court andtell everybody that "if we hear shots, don't worry, they [are]coming from him because he just saw two boys from DuSable HighSchool that were BD's that [had] jumped on him." Instead, Lee saidthat someone yelled something like "get their ass, grab them." However, Lee did not say who said it.

Defense counsel also called Chicago police detective JamesCassidy. Detective Cassidy testified that he interviewed ChikiraParker after the shooting. Parker told Detective Cassidy that thedefendant fired a shot and that Haynes was the person who shot thevictim as he was lying on the ground. However, Detective Cassidydid not recall whether Parker said that the defendant fired a shotat the car or at the victim. The police report did not reflectthat Parker saw anyone shoot at the car.

The defense rested.

During closing argument, the State argued that Samantha Finleyrecanted her grand jury testimony because she was still living inthe Stateway Gardens and she was afraid to testify against any GD The State also argued that defendant and his gang had scared offother potential witnesses from testifying. The State further arguedthat defendant was a high-ranking GD member. The defense counselobjected to this statement, and the trial court sustained theobjection. Finally, the State urged the jury to return a guiltyverdict to send a message to the street gangs that infestedStateway Gardens.

After deliberation, the jury returned a guilty verdict offirst degree murder. The trial court sentenced defendant to 45years in prison.

ANALYSIS

VOIR DIRE

On appeal, defendant argues that he was deprived of a fair andimpartial jury trial because Judge Sacks questioned the veniremembers en masse and deferred answering questions from potentialjurors.

In this case, defendant did not raise an objection when JudgeSacks asked the prospective jurors who had raised their hands todefer their questions. Judge Sacks invariably offered a generalreply like, "If you happen to get in the [jury] box later on***tell me what you want to talk about and then we'll talk about itthen." Further, this issue was not included in defendant's post-trial motion. As such, this issue would normally be deemed waived. People v. Enoch, 122 Ill. 2d 176, 186 (1998). However, defendanturges this court to apply the plain error rule to review this issuebecause his right to a fair and impartial trial was violated.

The plain error rule is an exception to the waiver doctrineand permits the consideration of errors affecting substantialrights. 134 Ill. 2d R. 615(a); People v. McCormick, 328 Ill. App.3d 378, 381 (2002). The purpose of the plain error rule is toafford certain protections to the accused by correcting seriousinjustices and to preserve the integrity and reputation of thejudicial process. People v. Young, 128 Ill. 2d 1, 46 (1989). However, the plain error rule may only be invoked in criminal casesin two limited circumstances. People v. Williams, 333 Ill. App. 3d204, 209 (2002). First, where the evidence is closely balanced, areviewing court may consider a claimed error that was not properlypreserved, so as to preclude argument that an innocent person mayhave been wrongly convicted. People v. Vargas, 174 Ill. 2d 355,363 (1996). Second, a reviewing court may invoke the plain errorrule to review waived errors that are of such magnitude that thereis a substantial risk that the accused was denied a fair andimpartial trial, and remedying the error is necessary to preservethe integrity of the judicial process. See Vargas, 174 Ill. 2d at363.

In this case, defendant confessed that he used a .44-caliberhandgun to fire a shot at the red Cavalier. Steven Williamstestified that the bullet passed through the car's trunk and struckthe victim's elbow. After being shot, the victim crashed the carinto another parked car. The victim and Steven then tried toescape on foot. They were caught by the GD's. The victim was thendragged to the side of a building and beaten by defendant's fellowgang members. After the beating, one of defendant's fellow gangmembers shot and killed the victim. After defendant's arrest, thepolice found the .44-caliber handgun in defendant's home. In hiswritten confession, defendant admitted that the handgun that thepolice found in his apartment was the same gun that he used toshoot at the red Cavalier. The evidence adduced at trial wasoverwhelmingly against defendant. Thus, the first prong of theplain error rule is not applicable to this case.

We next examine the second prong of the plain error rule todetermine whether it should be invoked to review this case.

In this case, Judge Sacks covered the required subjectsmandated in People v. Zehr, 103 Ill. 2d 472 (1984), and IllinoisSupreme Court Rule 431 (177 Ill. 2d R. 431). At the commencementof voir dire, Judge Sacks addressed all prospective jurors as agroup. The judge asked the group whether they all understood andaccepted that the defendant was presumed innocent of the chargesagainst him, that the State had to prove the defendant guiltybeyond a reasonable doubt, that the defendant was not required tooffer any evidence on his own behalf and the defendant's failure totestify could not be held against him. As the State points out,the trial court may ask these questions "individually or in agroup," "[i]f requested by the defendant." 177 Ill. 2d R. 431 (b). Here, the record does not reflect that the defendant requested thatthese questions be asked. The defendant on appeal replies that hisclaim of error rests on the last sentence of Supreme Court Rule431(b): "[t]he court's method of inquiry shall provide each juroran opportunity to respond to specific questions concerning theprinciples set out in this section." 177 Ill. 2d R. 431 (b).

After asking the jurors as a group whether they accepted andunderstood the above principles, Judge Sacks questioned each veniremember individually whether he or she could be fair and impartial. All those venire persons who eventually were selected to serve onthe jury answered affirmatively. With the exception of two seatedjurors, Elizabeth Hall and Sally Sellers, Judge Sacks asked everyjuror individually whether they had raised their hands in responseto the earlier announced principles. All jurors answered "no" tothis question.

The record indicates that the defendant wanted Sally Sellerson the jury. When the State used a peremptory challenge to strikeSellers, the defendant objected to the State's motion. Afterhearing arguments from both sides, Judge Sacks overruled theState's challenge and Sellers was kept on the jury. Further,defense counsel asked juror Hall twice whether she could be fair,and she offered no reason that she could not be fair at the trial. Moreover, it is impossible for this court to review anypotential questions that the prospective jurors might have had asthey raised their hands in response to Judge Sacks's en massequestions, because the defendant did not identify the names ofthose prospective jurors for the record. "It is well settled thatan appellant bears the burden of preserving a sufficient record forreview and any doubts arising from an incomplete record will beresolved against the appellant." People v. Ranstrom, 304 Ill. App.2d 664, 672 (1999). See also People v. Smith, 106 Ill. 2d 327,334-35 (1985). This court has held that the defendant is requiredto object to any errors during jury selection. People v. Robinson,299 Ill. App. 3d 426, 436-37 (1998). "Otherwise, counsel, by notgiving the court the opportunity to prevent or correct errors attrial, will gain the advantage of obtaining a reversal through failure to act, either intentionally or inadvertently." Robinson,299 Ill. App. 3d at 437 (1998). After a careful review of therecord, any errors in conducting the voir dire were not of suchmagnitude that there was a substantial risk that defendant wasdenied a fair and impartial trial. Consequently, we will notinvoke the plain error rule.

SUBSTITUTION OF JUDGE

Defendant next asserts that he was deprived of a fair trialbecause Judge McSweeney-Moore asked Judge Sacks to preside over thevoir dire in this defendant's case while she voir dired the co-defendant's venire.

As stated earlier, a defendant must object to alleged errorsat trial and include the objection in a posttrial motion in orderto preserve an issue for appellate review. Enoch, 122 Ill. 2d at186. The record indicates that defendant did not object to JudgeSacks's presiding over the jury selection; nor did the defendantinclude this issue in his posttrial motion. Thus, this issue iswaived.

Even assuming arguendo that the defendant had preserved thisissue for appeal, the fact that a different judge conducted thevoir dire did not per se deprive defendant of a fair trial. "As ageneral rule, a judge cannot finish the performance of a dutyalready entered upon by his [or her] predecessor where that dutyinvolves the exercise of judgment and the application of legalknowledge to, and judicial deliberation of, facts known only to thepredecessor." People v. Groves, 287 Ill. App. 3d 84, 97 (1997). However, there is "no bright-line rule that substitution of a judgeduring any stage of a trial, including voir dire, is per sereversible error." Groves, 287 Ill. App. 3d at 98. This isbecause "the examination of jurors under voir dire does not elicitany information that can be used in the trial of the case. Suchexamination is merely for the purpose of securing a competent,fair, and unprejudiced jury. That function can be performedproperly by any judge." Groves, 287 Ill. App. 3d at 98.

On appeal, defendant argues that Groves was wrongly decided,urging us instead to follow Meredeth v. People, 84 Ill. 479 (1877),Durden v. People, 192 Ill. 493 (1901), People v. Vargas, 174 Ill.2d 355 (1996), and People ex rel. Rice v. Cunningham, 61 Ill. 2d353 (1975), which he argues support his position.

In Meredeth, in a murder trial, the trial judge was absentfrom the courtroom for almost two days during arguments. Duringthe judge's absence, the trial was presided over by two members ofthe bar and order was not maintained in the courtroom. Meredeth,84 Ill at 482. The supreme court reversed, holding that "theabsence of the judge from the courtroom, engaged in other judiciallabors, for a part of two days, in a trial of this magnitude, cannot be justified on any principle or for any cause." Meredeth, 84Ill. at 482.

In Durden, the trial judge who presided over the jury trialheard a portion of defense counsel's closing argument and thenabsented himself from the proceedings. In addition, without noticeto the parties, another judge who had no knowledge of the on-goingcase took his place on the bench and presided over the rest of thetrial, ruled on objections during closing arguments and ruled uponthe jury instructions. The first judge did not return until thehearing on the motion for a new trial. Durden, 192 Ill. at 494-97. In reversing the ruling of the trial court, the Illinois SupremeCourt held that circuit judges may hold court for each other andperform each other's duties where they find it necessary orconvenient; however, the substitution of judges in a single trialis inappropriate unless knowledge of the case is wholly irrelevantto the performance of the judicial task. Durden, 192 Ill. at 498-99.

In Vargas, the trial judge left the courtroom during a jurytrial to take a phone call. While the judge was absent, thedefense counsel continued his cross-examination of a State witness. The Illinois Supreme Court held that "total judicial absence for aportion of a felony trial [] is per se reversible because sucherror is inherently prejudicial, not only to defendant's right toa fair trial but also to the integrity of the judicial process." Vargas, 174 Ill. 2d at 366.

In Cunningham, the Illinois Supreme Court addressed the three-judge panel formerly required by statute in death penalty cases. Consequently, Cunningham's ruling does not apply to this case. Thefacts in Meredeth, Durden, and Vargas make those cases whollyinapposite to the case sub judice.

In this case, Judge Sacks presided over the jury selection. Judge Sacks informed the entire venire that he was selecting thejury for Judge McSweeney-Moore and she would preside over thetrial. After selecting and swearing in the jury, Judge Sacks transferred the jury to Judge McSweeney-Moore. Judge Sacks did notparticipate in any other aspect of this trial. The record reflectsthat Judge McSweeney-Moore ruled on the pretrial motions, heard theopening statements and the witnesses' testimony, ruled on motions,instructed the jury on the law, heard the closing arguments, tookthe verdict, ruled on posttrial motions and imposed the sentence. Judge McSweeney-Moore presided over the entire trial herself. Further, Judge Sacks's involvement in the case did not require anyknowledge of the case.

We find the well-reasoned holding in People v. Groves, 287Ill. App. 3d 84 (1997), to be controlling. In fact, defendantpresents a weaker case for reversal than did the defendant inGroves. There, the defendant objected to having a judge other thanthe trial judge conduct the voir dire. Here, no objection was everraised. As the Illinois Supreme Court has stated, "a trial courtabuses its discretion in the conduct of voir dire only if a reviewof the record reveals that the trial court's conduct thwarted theselection of an impartial jury." People v. Metcalfe, 202 Ill. 2d544, 559 (2002). There is absolutely no evidence in this recordsupporting such a conclusion. Accordingly, the substitution of adifferent judge for voir dire did not violate defendant's right toa fair trial.

Of course, a better practice would be for the trial court toask the parties on the record whether they agreed to using adifferent judge to preside over voir dire. Employing thisprocedure would only take a few seconds and it would save theparties on appeal, as well as this court, many hours of effortcurrently spent on resolving what should be a simple question.

CLOSING ARGUMENT

On appeal, defendant asserts that he was denied a fair trialbased upon the State's closing and rebuttal arguments where theprosecutor (1) improperly bolstered their witnesses' credibility;(2) used argument unsupported by evidence that defendant and hisgang scared off witnesses; (3) inflamed the jury by saying thatdefendant was a high-ranking gang member; and (4) implored the juryto use this case to send a message to street gangs.

In reviewing these allegations of error, we first note that defendant only objected to the prosecutor's comment that defendantwas a high-ranking gang member. This objection was sustained. Aprosecutor is allowed a great deal of latitude in making a closingargument. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). Thetrial court's determination of the propriety of the argument willgenerally be followed absent a clear abuse of discretion. Peoplev. Strong, 274 Ill. App. 3d 130, 139 (1995). To constitutereversible error, the complained-of remarks must have resulted insubstantial prejudice to the accused, such that absent thoseremarks, the verdict would have been different. People v. Heard,187 Ill. 2d 36, 73 (1999).

After reviewing the record in this case, we cannot say thathad the complained-of statements not been made, the outcome ofdefendant's trial would have been different. Defendant wasconvicted of first degree murder, and the evidence in support ofthe conviction was overwhelming. The defendant confessed that heused his 44 Magnum handgun to fire a shot at the victim's car. Thebullet went through the trunk of the car and hit the victim'selbow, which caused the victim to lose control of the car andcrash. The victim and his brother then tried to flee. The victimwas chased, caught, dragged to the side of a building and beaten bythe defendant's fellow gang members. Finally, one of the gangmembers shot and killed the victim. After arresting defendant, thepolice recovered the 44 Magnum handgun defendant said he used indefendant's home. Based on this evidence, we find that the outcomeof the case would not have been different even without thecomplained-of comments. Furthermore, we find that any prejudicestemming from the allegedly improper argument was minimal becausethe jury was instructed that opening and closing arguments are notevidence. See People v. Simmons, 331 Ill. App. 3d 416, 421 (2002);People v. Reeves, 228 Ill. App. 3d 788, 800 (1992). Thus,defendant was not deprived of a fair trial.

EXCESSIVE SENTENCE

Finally, defendant asserts that the trial court erred inconsidering a void prior conviction in sentencing defendant.

A reviewing court will not disturb a sentence unless the trialcourt has abused its discretion. People v. Streit, 142 Ill. 2d 13,19 (1991); People v. Shields, 298 Ill. App. 3d 943, 951 (1998). Asentence within the statutory limits will not be overturned onappeal unless it is manifestly disproportionate to the nature ofthe offense. People v. Luckett, 295 Ill. App. 3d 342, 349 (1998). A sentence is presumptively correct, and only where suchpresumption has been rebutted by an affirmative showing of errorwill a reviewing court find that the trial court abused itsdiscretion. People v. Luna, 234 Ill. App. 3d 544, 550-51 (1992).

In Illinois, the sentence for a first degree murder convictionis 20 to 60 years' imprisonment. See 730 ILCS 5/5-8-1 (West 1998). Defendant's sentence of 45 years' imprisonment was within thelegislative limitations. In sentencing defendant, the trial courtstated "the defendant [did] not have significant prior criminalhistory." The trial court then noted that "[h]e was convicted bya jury of the first degree murder [of the victim]." The court thensentenced defendant to 45 years in prison. The record indicatesthat the weight that the trial court put upon the defendant's priorconviction was so insignificant that it did not lead to a greatersentence. Further, in the sentencing hearing, the State did notuse defendant's prior conviction as a factor in aggravation. Basedon the record, we find the trial court did not abuse its discretionin sentencing defendant. As such, the judgment of the trial courtis affirmed.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CAMPBELL, P.J., and HARTIGAN, J., concur.