delivered the opinion of the court:
Defendant William Ephraim (defendant) was convicted by a jury of two counts of attempted first degree murder and two counts of aggravated battery with a firearm. On the two counts of attempted first degree murder, defendant was sentenced to two 20-year terms of imprisonment to be served consecutively. We affirm.
In the late afternoon on April 10, 1996, Asiah Vance and her aunt, Halimah Muhammed, were on the front porch of Muhammed’s house at 5125 South Laflin in Chicago, Illinois, watching their children play. While sitting on the porch, Vance heard two cars speeding down the street and approximately 10 gunshots, so she ran into the house with her two-year-old daughter, Tiara Moren. When she got inside the house, she realized her daughter had been shot.
Muhammed testified that she was standing on the bottom stair of the front porch when she heard approximately three or four gunshots. She immediately began gathering up the children and ran inside. When she got inside, she realized that her four-year-old son, Andrew White, had been shot.
At the time of the shooting, Terrice Hartfield, who lived next door to Muhammed, was washing his car in front of his house. Upon hearing the gunshots, Hartfield dove to the ground in front of his car. He does not recall the make of the first car to pass him, but he does remember that it was white. As for the second car, Hartfield identified it as a white Pontiac Grand Prix with a gray bottom.
Benjamin Navarro, who also lives on Laflin, was in the alley throwing out his garbage when the shooting occurred. He remembers hearing gunshots and then seeing a white Pontiac Grand Prix race toward him. The Grand Prix stopped in the alley while the driver threw an object out the window. According to Navarro, the driver, a black male, was the only person in the car. The car did not have license plates but did have an orange sticker in the back window. On April 17, 1996, Navarro identified the car in the police department parking lot. However, after viewing a lineup, Navarro was unable to identify the driver.
On the day of the shooting, Chicago police detective John Halloran arrived at the scene and could not find any physical evidence connected with the shooting. While at the crime scene, Halloran spoke with Nicole and Antoinette Muhammed, the 16-year-old sisters of Andrew White. Nicole Muhammed told Halloran that she was sitting on her porch at the time of the shooting and saw a black, four-door car with gold rims chase another vehicle northbound down Laflin. Nicole Muhammed said the gunman was sitting in the backseat of the car and was shooting randomly out of the back passenger window. According to Nicole Muhammed, her boyfriend, Jason Miller, and Anthony Branch witnessed the shooting from across the street from her house.
Antoinette Muhammed told Halloran that she too observed a black, four-door car with gold rims chase another car northbound down Laflin. According to her recollection of the shooting, the shooter was in the front passenger seat sitting on the window ledge with his upper body outside of the car while he shot a gun in a forward direction.
Next, Halloran spoke with Jason Miller and Anthony Branch. They both told Halloran that from the porch of Miller’s house they observed a black, four-door car with gold rims chase another car down Laflin. Miller and Branch recall that the shooter was in the black car. They identified the shooter as Eric, a member of the Black P Stones Gang, who lives at 51st and Paulina.
At trial, Halloran testified that the area where the shooting occurred is controlled by the Black P Stones street gang. Further, Hallo-ran stated that both Miller and Branch are members of the Black P Stones gang. Halloran testified that he knew of a person named Eric Gibson who did in fact live on the block claimed by Miller and Branch. Halloran showed Miller and Branch a photograph of Eric Gibson, and they both identified him as the shooter. Moreover, the police located a dark blue, four-door car with gold rims and Miller and Branch identified this car as the one driven by Eric Gibson when the shooting occurred.
Halloran testified that Nicole and Antoinette Muhammed, as well as Miller and Branch, viewed a lineup. Miller and Branch both identified Eric Gibson as the shooter, but Nicole and Antoinette Muhammed did not. Halloran was concerned over the information he received from Nicole and Antoinette Muhammed, Miller, and Branch because their accounts of the shooting varied significantly from the accounts of others who also witnessed the shooting.
In an effort to reconcile the varying witness accounts Halloran received, he interviewed Miller and Branch for a second time. They both admitted that they lied when they not only identified the dark blue car, but also when they identified Eric Gibson as the shooter. Halloran testified that Branch went so far as to say that Eric Gibson was not even present at the shooting. When Nicole and Antoinette were confronted with the fact that Miller and Branch had recanted, they refused to speak to the police any further.
Halloran testified that in the course of his investigation he learned the nickname of an individual possibly involved in the shooting and his gang affiliation. More specifically, Halloran learned that a Black P Stones gang member called “Big Man” might be involved in the shooting. In court, Halloran identified Big Man as the defendant.
Halloran first spoke with defendant after he was taken into custody. After Halloran advised defendant of his rights, defendant agreed to speak with him and initially denied any knowledge about the shooting. However, defendant did admit to Halloran that he 'is known as Big Man and is a member of the Black P Stones gang.
Eventually, defendant told Halloran about his involvement in the shooting. According to Halloran, defendant told him that at the time of the shooting he was on the corner of 53rd Street and Laflin playing dice with fellow gang members. While playing dice, defendant saw a gray, two-door car drive northbound down Laflin. As the gray car passed, one of defendant’s fellow gang members yelled out for someone to “get on that car,” since the driver was a rival gang member. Another member of the gang, known as both “Percy” and “Verge,” ran to his car to retrieve a gun and began shooting at the gray car while standing in the middle of the street. Halloran testified that defendant then stated that he jumped into his white Pontiac Grand Prix, unaccompanied by any fellow gang members, and began chasing the gray car. Halloran stated that defendant admitted that he was armed with a .32-caliber revolver that he fired with his left hand at the gray car out of the driver’s side window. When he reached the 5100 block of Laflin, defendant fired additional shots at the gray car and then turned down the alley located at approximately 5207 Laflin, where he threw his gun out the window. Defendant told Halloran that he thinks a Mexican man in the alley may have seen him throw away the gun. Defendant then returned to 53rd and Laflin.
Assistant State’s Attorney Don Lyman testified that he was at the police station where Eric Gibson was in custody. After speaking with Nicole and Antoinette Muhammed, Miller, and Branch, Lyman confronted Branch with the inconsistencies in their accounts of the shooting. Branch then admitted that it was not Eric Gibson he had seen at the shooting and refused to speak any further with Lyman. When Lyman confronted Miller with the inconsistencies in their accounts, Miller admitted that he saw a white, two-door car chase another car north down Laflin. Further, Lyman testified that Miller told him that he heard gunshots and recognized the driver of the white car as Big Man.
Miller testified at trial that he is a former member of the Black-stones street gang. Miller stated that at the time of the shooting he was dating Nicole Muhammed and knew the defendant as “Big Shorty.” Miller was sitting on the front porch of his house, which is directly across the street from the Muhammeds’ house, when the shooting occurred. Miller remembers seeing two cars come down the street and hearing about five or six gunshots. According to Miller, the police forced him to say that one of the vehicles he saw was a gray, four-door car and that the other was black with gold wheels. Miller admitted that he told the police that he saw Eric Gibson shooting a gun out of the passenger side window of the black car. However, Miller testified that he did not recall telling Lyman that he saw Big Man driving a white, two-door car while chasing another vehicle. In fact, Miller denied ever seeing Big Man drive a white car down his street. When asked if he recalled giving previous testimony in this case in July of 1997, Miller responded in the affirmative. When asked if he remembered testifying that he saw a gray, four-door car followed by a white car driven by Big Shorty, Miller replied, “I guess.” Miller testified that the police told him that they were going to charge him with the shooting, and, consequently, he gave the police a false account of what took place. Miller denied knowing anyone by the name of Eric Gibson. According to Miller, he was not a friend of the defendant’s and had no reason to protect him.
Police Officer Thomas Glynn testified that on April 16, 1996, he observed defendant driving a white, two-door vehicle with an orange sticker in the rear window. Officer Glynn pulled defendant over and recalls defendant telling him that his nickname is Big Man. Officer Glynn also testified that he learned the car defendant was driving was registered to his mother, Mary Williams.
Assistant State’s Attorney Dan Weiss testified that he interviewed defendant after his arrest and defendant admitted to him that he is a member of the Blackstone street gang and that he is frequently in the area of 53rd Street and Baffin. Defendant told Weiss that on April 10, 1996, while he was playing dice on the corner of 53rd Street and Baffin, he and Percy were ordered by another gang member to stop the car of a rival gang member which was proceeding northbound down Baffin. Percy immediately retrieved a gun from his car and fired at the gray, four-door car as it sped down the street. Defendant jumped into his car and began following the gray car while he simultaneously fired a .32-caliber gun out the driver’s side window. According to Weiss, defendant said that he fired two additional shots when he was between 52nd Street and 51st Street. Defendant remembers seeing children on the street when he fired the gun and throwing the gun out somewhere around the 5200 block.
Mary Williams, defendant’s mother, was the only witness to testify on behalf of defendant. Williams testified that in April of 1996, she worked three days a week from 9 a.m. to 9 p.m. as a cashier at a dollar store located at 65th Street and Ashland. Defendant also worked at the store, usually in the late afternoon or evenings, on an “as needed” basis. On the day of the shooting, Williams remembers asking her boss, Patricia Hodges, to pick her son up from school. Williams testified that her son then worked at the store with her from 3 p.m. until 7 p.m. At the time of trial, Williams stated she was no longer in touch with Hodges and did not know where she was living. Williams testified that the Pontiac Grand Prix her son was seen driving belonged to' her, but many of her family members had a set of keys to the car and were freely permitted to use it. According to Williams, on the day of the shooting, her sister had the car.
At the close of the trial, the jury found defendant guilty of both counts of attempted first degree murder and both counts of aggravated battery with a firearm. Defendant’s motion for a new trial was denied.
At the sentencing hearing, Patricia Hodges testified on defendant’s behalf. She testified that, on the day of the shooting, she picked defendant up from school and brought him to the dollar store where he worked from 3 p.m. to 7 p.m. However, Hodges did admit that on the day of the shooting she was in and out of the store all day. When asked why she failed to comply with her subpoena to appear in court to testify on behalf of defendant at trial, Hodges stated she could not recall.
On the two counts of attempted first degree murder, defendant was sentenced to two consecutive terms of 20 years in the Illinois Department of Corrections. Defendant appeals his conviction and sentence.
The issues presented for review are whether the trial court’s decision to deny defendant’s request to excuse two jurors for cause was against the manifest weight of the evidence; whether the doctrine of transferred intent is applicable to defendant’s convictions for attempted murder where the unintended victims were not killed; whether the State failed to prove beyond a reasonable doubt that defendant committed attempted first degree murder; whether the cause must be remanded for a further posttrial hearing, where the trial court failed to sua sponte examine an allegation of ineffective assistance of counsel; and, lastly, whether Apprendi v. New Jersey,
Defendant contends that when a juror expresses doubt about his ability to be impartial, he should be excused for cause. In the case at bar, defendant argues that two jurors, Louise Talabar and Jean Hicke, expressed self-doubt as to whether they could be impartial. Defendant had exhausted all of his peremptory challenges and asked the court to excuse Talabar and Hicke for cause. The trial judge denied defendant’s request. The State contends that Talabar and Hicke indicated to the court that they would be impartial, and, therefore, the trial court properly denied defendant’s request to excuse them for cause.
el “The determination of whether a prospective juror is biased is within the sound discretion of the trial judge, whose decision will not be reversed unless it is against the manifest weight of the evidence.” People v. Reid,
“While a prospective juror may be removed for cause when that person’s ‘views would prevent or substantially impair the performance of his duties as a juror [citation], an equivocal response does not require that a juror be excused for cause.” Buss,187 Ill. 2d at 187 , citing Williams,173 Ill. 2d at 67 .
Moreover, “[a]n equivocal response by a prospective juror does not necessitate striking the prospective juror for cause where the prospective juror later states that he will try to disregard his bias.” People v. Hobley,
•2 A complete examination of Talabar’s voir dire examination shows that the trial court did not abuse its discretion in finding that there was no need to excuse Talabar for cause. In regard to whether Talabar had ever been the victim of a crime, she merely stated that “years ago” her home had been burglarized. She also noted that her brother had been killed by a negligent truck driver and that it bothers her that adolescents jeopardize their future by joining gangs. However, Talabar went on to state that she would like to think that she would have “the intelligence to be fair and make the correct decision.” Talabar further stated that she would “weigh everything.” Lastly, although Talabar expressed some agitation after having been told by the trial judge that the evidence will show that two young children were injured, she stated that she would sign a guilty verdict only if the defendant was proven guilty beyond a reasonable doubt. Talabar’s statements, when viewed as a whole, indicate that she would keep a fair and open mind when evaluating the evidence. For this reason, the trial court’s decision to deny defendant’s request to excuse Talabar for cause was not against the manifest weight of the evidence.
•3 Similarly, the trial court’s denial of defendant’s request to excuse Hicke for cause was not against the manifest weight of the evidence. When asked whether evidence involving the children’s injuries and gangs would affect her ability to be fair, Hicke stated that she thought she could “weigh the evidence on both sides and come to a conclusion.” At one point in her voir dire examination, Hicke misstated the burden of proof when she stated that she would not hold it against the defendant if he did not put on any evidence so long as the State found defendant not guilty. Hicke’s understanding of the law was immediately clarified. Hicke was asked whether she understood that the State’s duty was to put on witnesses so that the jury could act as the judge. To this question, Hicke responded affirmatively. Furthermore, Hicke stated that she would not hold anything against defendant if he did not put on any evidence. The totality of Hicke’s responses indicate that she would keep a fair and open mind in weighing the evidence. Consequently, it is clear that, in denying defendant’s request to excuse Hicke for cause, the trial court’s decision was not against the manifest weight of the evidence.
•4 Defendant cites to People v. Johnson,
“Mr. Milkovich, Mr. Welch, and Mr. Swope were crime victims or they had close friends or relatives who were victims of violent crimes. In addition, they equivocated when first asked whether they could be fair and impartial. For these reasons, they should have been dismissed for cause.” Johnson,215 Ill. App. 3d at 725 .
From this excerpt it is clear that the Johnson court found it significant that each of these three prospective jurors had himself been a crime victim or had close friends and relatives who were victims of violent crimes. The jurors were not excused only because they equivocated when asked if they could be fair and impartial. In Johnson, Michael Milkovich told the court that his family had been victims of a robbery committed by his cousin and that his sister “was involved in armed robbery, in robbery [and] drugs in Hammond.” Johnson,
•5 Next, defendant contends that pursuant to People v. Reinbold,
•6 Defendant asserts that People v. Pendleton,
In the case at bar, a complete examination of Talabar’s and Hicke’s voir dire examinations indicates that they would keep a fair and open mind when evaluating the evidence at trial. Talabar and Hicke expressed only slight equivocation and were immediately rehabilitated. In light of the totality of Talabar’s and Hicke’s voir dire examinations, we find that trial court’s decision to deny defendant’s request to excuse Talabar and Hicke for cause was not against the manifest weight of the evidence.
•7 Next, defendant contends that the doctrine of transferred intent is not applicable where the unintended victims were not killed. It is readily apparent that defendant did not intend to shoot and injure two young children. The State and defendant agree that defendant was intending to shoot the driver of the gray, four-door vehicle. Since there are no factual issues in dispute, the legal issues can be reviewed de nova. People v. Garriott,
Defendant contends that where an individual is prosecuted for attempted murder and the unintended victims are not killed but only injured, the doctrine of transferred intent is not applicable to the unintended victims. In support of his argument, defendant cites to Harvey v. State,
We find defendant’s argument unpersuasive. It is well established that in Illinois the doctrine of transferred intent is applicable to attempted murder cases where an unintended victim is injured. Since the law is so well established in Illinois, there is no need for this court to turn to Maryland law. Moreover, the evidence presented at trial clearly establishes defendant’s guilt beyond a reasonable doubt.
In People v. Hill,
In People v. Swaney,
In People v. Burrage,
Accordingly, it is clear that the doctrine of transferred intent applies to situations where the victim is injured rather than killed. Therefore, in the case at bar, where the young victims were injured rather than killed, we hold that the doctrine of transferred intent is applicable.
Defendant asserts that the State failed to prove beyond a reasonable doubt that he committed first degree attempted murder. At best, defendant contends that the evidence presented at trial established that he intended to get “on that car,” meaning that he merely intended to stop the car he was chasing and beat the driver. More specifically, defendant is arguing that the evidence failed to show that he had the specific intent to kill the driver. The State contends that evidence showed that defendant chased the driver of the gray vehicle and fired at least three shots at him from a deadly weapon. Based on this evidence, the State argues that it proved beyond a reasonable doubt that defendant specifically intended to kill his rival gang member.
•8 The Illinois Supreme Court has held that “[a] criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt.” People v. Collins,
•9 This court has held that “[ajlthough the intent to kill can be transferred, it must still be proven beyond a reasonable doubt.” People v. Homes,
•10 In the case at bar, defendant’s intent to kill the driver of the four-door, gray vehicle can be inferred from the surrounding circumstances. At trial, Assistant State’s Attorney Weiss testified that defendant was ordered by a fellow gang member to get “on that car,” “that” being the car of the rival gang member. In response to this order, defendant admitted to jumping into his own car and chasing the gray, four-door vehicle while firing three shots at the gray car. Regardless of whether an order to get “on that car” means to simply beat the driver or kill the driver, three undisputed facts remain: (1) defendant chased the gray car, (2) defendant believed the driver to be a rival gang member, and (3) defendant fired multiple shots at the gray vehicle. Rival gang members are considered enemies. Further, defendant was chasing a person whom he assumed to be a rival gang member. These two facts, coupled with defendant’s act of firing a gun, make it feasible for the jury to conclude that defendant intended to kill the driver of the gray car. Thus, in viewing the facts in the light must favorable to the State, we find that it was not unreasonable for the jury to have found that defendant possessed the specific intent to kill.
Defendant claims that the trial court was obligated, sua sponte, to hold a hearing pursuant to People v. Krankel,
In Krankel, after trial, the defendant filed a pro se motion for a new trial alleging that defense counsel failed to introduce the defense of alibi and failed to investigate the defendant’s whereabouts at the time the crime was committed. Krankel,
In People v. Jackson,
On appeal, the defendant argued that “where a defendant, in a post-trial motion, alleges the ineffective assistance of trial counsel, new counsel generally should be appointed for the purpose of conducting the hearing.” Jackson,
In Jackson, the appellate court found that the trial court applied the Johnson test and reached the proper conclusion. Jackson,
In People v. Williams,
The appellate court in Williams held that the case must be remanded for a hearing on the defendant’s possible ineffective assistance of counsel claim. The court based its decision on the fact that at the posttrial motion the defendant’s attorney revealed that critical alibi witnesses were not called at trial. The defendant’s attorney stated that the witnesses had been unavailable; however, the record is silent as to what efforts, if any, he made to present them. Williams,
•11 In the case at bar, defendant did not file a pro se petition alleging ineffective assistance of counsel, nor did defendant write a letter to the trial judge making such a claim. However, in Williams, defendant’s inaction does not result in waiver of this issue. In reviewing the facts at bar, we find the State’s argument most persuasive. The State rightfully argues that the trial court did not err in not sua sponte conducting a hearing regarding the alleged ineffectiveness of defendant’s trial counsel. Unlike Williams, in the case at bar, there is no clear basis for an allegation of ineffectiveness.
Defendant’s defense depended on critical alibi testimony, and, therefore, defendant’s mother testified as to her son’s whereabouts at the time of the offense. According to her testimony, Patricia Hodges picked defendant up at school and brought him to the dollar store where he worked from 3 p.m. until 7 p.m. on the day of the shooting. Perhaps defendant’s attorney, as a matter of trial strategy, believed one alibi witness would be sufficient to assure the jury that defendant was not guilty. Had no one been called to testify regarding defendant’s whereabouts, we would be more inclined to find that defendant’s case had been neglected by his attorney. Additionally, at the sentencing hearing, Patricia Hodges testified that she remembers having been subpoenaed to testify at defendant’s trial but that she could not remember why she failed to appear in court. Thus, unlike the defense attorneys in Williams and Jameson, defendant’s attorney did take affirmative action to compel Patricia Hodges’ testimony. The fact that defendant’s mother testified as an alibi witness and the fact that Patricia Hodges was subpoenaed to appear in court suggest that defendant’s attorney was diligent in his efforts to prepare defendant’s case. Since a clear basis for an allegation of ineffectiveness of counsel does not exist, we cannot find that the trial court erred in failing to sua sponte examine whether defendant was provided with effective assistance of counsel.
•12 Defendant argues that pursuant to Apprendi v. New Jersey,
Issues involving substantial rights may be considered by a reviewing court even if not properly preserved in the trial court. 134 Ill. 2d R 615(a); People v. Brandon,
In the case at bar, at defendant’s sentencing hearing, the State told the trial judge that one factor to be considered in determining defendant’s sentence is that defendant shot the two children in the case at bar while he was out on bond for a Class X offense of possession of a controlled substance with intent to sell. On June 3, 1998, defendant was convicted of this drug crime and sentenced to eight years in the Illinois Department of Corrections.
On February 9, 1999, defendant was sentenced to two consecutive 20-year sentences on the two counts of attempted murder in the instant matter. Prior to the trial judge announcing defendant’s sentence, the State argued that pursuant to “730 5/5—8—4,” defendant should receive consecutive sentences. The State failed to articulate which paragraph of section 5—8—4 of the Unified Code of Corrections it was asking the trial judge to follow. The trial judge then ordered consecutive sentences and stated that his reasoning for doing so was that he was obligated to so hold pursuant to statute. However, the trial judge never identified the particular statute under which defendant’s consecutive sentences were ordered. Rather, he simply stated that since defendant was found guilty of two separate counts of attempted first degree murder with regard to two separate individuals, the court was obligated to order consecutive sentences. Lastly, the trial judge clearly stated that defendant’s sentence in the case at bar, 96 CR 15350, is to run consecutively with his sentence in the drug case, 96 CR 12455.
A review of the order of sentence and commitment to Illinois Department of Corrections (sentencing instrument) shows that defendant was sentenced to two consecutive 20-year terms on counts I and II. The sentencing instrument also states that defendant’s sentence is to run consecutively with his sentence in 96 CR 12455. It is clear that the two consecutive 20-year terms in case 96 CR 15350 were imposed pursuant to section 5—8—4(a) of the Unified Code of Corrections and those terms were to run consecutively to his eight-year sentence in case 96 CR 12455 pursuant to section 5—8—4(h) of the Unified Code of Corrections. In pertinent part, section 5—8—4(a) of the Unified Code of Corrections provides:
“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless:
(i) one of the offenses for which defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury[.]” 730 ILCS 5/5—8—4(a) (West 2000).
Section 5—8—4(h) provides the following:
“If a person charged with a felony commits a separate felony while on pre-trial release or on pre-trial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” 730 ILCS 5/5—8—4(h) (West 1998).
In Apprendi, the United States Supreme Court held that “ ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” Apprendi,
The State agrees with defendant’s interpretation of Apprendi-, the United States Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. However, the State contends that defendant’s consecutive sentences need not be analyzed under Apprendi because defendant was not sentenced beyond the prescribed statutory maximum.
The Illinois Supreme Court recently addressed the constitutionality of consecutive sentences under Apprendi. People v. Wagener,
For the foregoing reason, we affirm defendant’s convictions for attempted first degree murder and the order providing that these sentences shall run consecutively. Finally, we affirm the trial court’s decision to order that defendant’s two 20 year sentences in the case at bar run consecutively with his sentence on the drug case, 96 CR 12455.
Affirmed.
QUINN, P.J., and THEIS, J., concur.