May 10, 2001

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Armando Amaya, appeals his convictions of andsentences for attempted murder, first-degree murder, and aggravateddischarge of a firearm after three people were shot, one fatally,at an apartment building in Elgin. We affirm in part and vacate inpart.

On April 28, 1998, the defendant was charged in a six-countindictment with two counts of first-degree murder in that thedefendant shot Jermaine Lambert with the intention of killing him(720 ILCS 5/9--1(a)(1) (West 1996)) and that the defendant shotLambert knowing such act created a strong probability of death orgreat bodily harm (720 ILCS 5/9--1(a)(2) (West 1996)); two countsof attempted murder (720 ILCS 5/8--4(a) (West 1996)) in that thedefendant shot and intended to kill Alonzo Matthews and TaraHarris; two counts of aggravated battery with a firearm (720 ILCS5/12--4.2(a)(1) (West 1996)) in that the defendant committed abattery by means of discharging a firearm and shooting Matthews andHarris; and one count of aggravated discharge of a firearm (720ILCS 5/24--1.2(a)(2) (West 1996)) in that the defendant knowinglydischarged a firearm in the direction of a person.

The evidence at trial revealed the following. One of thevictims, Alonzo Matthews, testified that he was visiting a friendat an apartment at 309 New York Street in Aurora, Illinois, onOctober 29, 1997, and, as he listened to some girls argue outsidethe apartment building, he felt someone creep up behind him. A"Mexican" man, 5 feet 8 inches to 5 feet 9 inches tall, 140 to 145pounds, was dressed in black with a hood on his head and came fromthe direction of Lincoln Street. Matthews saw the man for only twoseconds before the man shot Matthews in the stomach. The shooter'sgun was chrome or black, a revolver or an "automatic," and had awheel-like chamber. Matthews underwent surgery and remained in thehospital for nine days. Matthews admitted that he was on probationin Wisconsin for a drug crime, but he denied being a gang memberand did not know why anyone would want to shoot him. The partiesstipulated that at the hospital Matthews told a police officer thathe could recognize the shooter. During cross-examination Matthewsstated that he did not see the shooter in the courtroom.

The other surviving victim, Tara Harris, testified that onOctober 29, 1997, she was taking her daughter's diaper to theDumpster on the side of her apartment at 309 New York Street inAurora, Illinois, when she stopped to watch some girls arguing. A"Mexican" or "Spanish" man, 5 feet 5 inches or 5 feet 6 inchestall, in his late teens or early 20s, approached the area from theLincoln Street end of the building. His hands were in his pocketsand he wore a jacket with a hood. The hood covered the man's headbut not his face. When Harris turned away, she heard two gun shotsbut did not see a gun. Harris had been shot in the back but didnot realize it until she was back in her apartment. She blackedout and later underwent surgery and stayed in the hospital for ninedays. The bullet was still in Harris's back at the time shetestified. Harris admitted that at the time of trial she was onprobation for a drug crime, but she denied being a gang member anddid not know why anyone would want to shoot her.

Shayla Johnson testified that she also was watching the girlsargue outside the New York Street apartment building on the nightin question when she saw the defendant come from the direction ofLincoln Street. The defendant wore black or navy blue, was 5 feet4 inches tall, and weighed 130 to 140 pounds. The defendantapproached the group of girls, bumped into a woman, pushed her outof the way, walked three or four more steps, and started to shoot. Handling the weapon "wildly," the defendant shot five or six timeswith what Shayla thought was a revolver. Shayla stated that shegot a good look at the shooter and recognized him as a man known as"Scarecrow," whom she had seen five or six times before theshooting. Shayla ran from the shooting and did not speak to thepolice officers at the scene because she did not want to getinvolved and did not think anyone had been shot. Earlier thatevening, as Shayla walked toward the apartment building to meetsome friends, she saw the defendant and two other Hispanic men ina white, four-door Celebrity or Century with a red stripe. Two ofthe car's occupants hung out of the car windows yelling "Kinglove," "GDK," and "Kings rule."

Shayla stated that, less then two months later, on December19, 1997, she spoke to the Aurora police about the shooting whileshe was at the police station regarding an unrelated incident. OnFebruary 4, 1998, Shayla identified the defendant as the shooter ina lineup and admitted speaking with her friend, Nicole Pearson,another witness, about the incident. Shayla admitted that she hadcharges for theft and other offenses pending against her and waspresently in custody after being arrested for failing to appear incourt.

Nicole Pearson testified that on the evening of October 29,1997, she argued with some girls on the side of the apartmentbuilding in question. When the argument ended, a short, teenage "Mexican" man, dressed in black and wearing a black hat, approachedfrom Lincoln Street, carrying a "big gun." Pearson identified thatman as the defendant. The defendant fired the gun, and the crowdscattered. The defendant had difficulty handling the gun. Pearsonstated that the defendant pointed the gun at her but did not firebecause she was on the ground. The defendant moved away andcontinued to shoot, and Pearson stood up and ran away. Pearsonstated that she had seen the defendant before near a tacorestaurant and knew his name as "Scarecrow." Earlier that evening,she saw the defendant in a white car with two other men but did nothear them say anything.

Pearson explained that at the February 1998 lineup she did notthink the defendant was the shooter because he had gained weightsince the shooting. Pearson also told the officers that she washesitant to testify because she was afraid that the defendant wouldkill her. Later Pearson identified the defendant to the police asbeing present during the shooting and in the white car thatevening, but not as the shooter. Still later, after discussing thematter with the police after the lineup, Pearson identified thedefendant as the shooter. Pearson admitted that her friend, ShaylaJohnson, told Pearson that she (Shayla) believed that the defendantwas the shooter and that Shayla told Pearson that the defendant'snickname was "Scarecrow." But Pearson, who lived with ShaylaJohnson at the time of the shooting, denied speaking with Shaylaabout the incident before speaking with the police. Pearsonadmitted that she had prior convictions of retail theft, resistinga peace officer, disorderly conduct, and criminal trespass and hadcases pending for mob action and battery. Pearson denied being agang member but admitted that she associated with members of theGangster Disciple gang, wore Gangster Disciple colors, and knewthat she was in Gangster Disciple territory the night of theshooting. Pearson also stated that one of the victims, Lambert,was her friend.

William McCalister testified that he saw a man outside theapartment building just before the shooting who wore dark clothingwith a hood. McCalister did not see a gun but heard gunshots a fewminutes later. McCalister admitted that he had a theft chargepending at the time of trial.

Tracy Johnson testified that just before the shooting he wasdrinking alcohol with his friends when he saw three Hispanic men ina white Chevrolet Celebrity drive by the New York Street apartmentbuilding two or three times. The men in the Chevy made gang signsthat were insulting to Gangster Disciples. Later, Tracy heardthree gunshots and then saw the three men that were in theCelebrity run from the area of the shots, cross the street, and getinto the same white Celebrity that was parked at the LincolnLaundry on Lincoln Street. At approximately 10:30 p.m., Tracy sawthe men being stopped by the police. Tracy then told the policewhat he knew and gave a taped statement at 11:50 p.m. Tracyadmitted that, both before and after the incident, he drank a pintof gin and some beer with his friends that evening and that hepreviously received substance abuse treatment. In addition, Tracyadmitted that he had a prior conviction of a felony drug charge andconvictions of several residential burglaries, burglary, attemptedburglary, and retail theft.

Aurora police officer Scott Wolters testified that he stoppedthe white Celebrity that evening at approximately 10:30 p.m. Thedefendant sat in the front passenger seat wearing faded blue jeansand a hooded overcoat with a black hooded sweatshirt. RomeroSandoval was also in the car wearing a dark Nike hooded pulloverand a black leather jacket. The third man in the car was GeorgeGamboa. Wolters found no weapons or ammunition either in thevehicle or on any of the men in the car.

Officer Mike Doerzaph testified that Tracy reported that hehad seen the three men who had been stopped running from the sceneof the shooting.

Aurora police sergeant Mike Langston, an expert in gangactivity, testified that the defendant and the two others who werearrested were members of the Latin Kings gang and that thedefendant's nickname was "Scarecrow." The Latin Kings were rivalsof the Gangster Disciples; however, none of the victims, nor ShaylaJohnson or Nicole Pearson, was a member of any gang. The shootingoccurred in Gangster Disciple gang territory. The Lincoln Laundry,the place where the white Celebrity was parked during the shooting,was located on the edge of Gangster Disciple territory. The phrase"King love" showed respect for the Latin Kings, and "GDK" stood for"Gangster Disciple Killer." Langston added that gang memberscommonly used getaway drivers and lookouts when entering rival gangterritory, since it was risky to enter that territory on foot.

Aurora police officer James Fancsali testified that, whenTracy Johnson gave his statement to the police the evening of theshooting, he did not appear to be intoxicated and had no odor ofalcoholic beverages. In February 1998, Shayla Johnson identifiedthe defendant in a lineup as the shooter, after first stating thatthe defendant was not the shooter and then stating that he waspresent at the shooting but was not the shooter.

Aurora police officer Jeffrey Sauer corroborated Fancsali'stestimony regarding Pearson's lineup statements. Pearson told theofficers that the shooter was "skinnier" and lighter than thedefendant.

Aurora police officer Andrew Hilgenberg testified that, whileon patrol on October 29, 1997, he was dispatched to the apartmentbuilding at 309 East New York Street to secure the inside of acrime scene at 309 East New York Street. When Officer Hilgenberg arrived at approximately 8:45 p.m., Matthews, who appeared to havebeen shot, was in front of the apartment building. The parking lotarea was illuminated. Hilgenberg then entered Tara Harris'sapartment and spoke with her. Harris also had been shot. JermaineLambert was lying on his back in Harris's kitchen in a pool ofblood. Lambert appeared to be breathing but was pronounced dead at9:03 p.m. by a paramedic.

Evidence technician Stan Kahle testified that he foundclothing in the white Chevy Celebrity but did not collect theclothing for evidence and did not find any weapons or ammunition.

The parties stipulated that a forensic pathologist wouldtestify that Lambert's autopsy would reveal that Lambert receiveda single, penetrating gunshot wound to the chest that wasconsistent with the barrel of the weapon being placed directly onthe body. The gunshot wound caused Lambert's death, the bullethaving penetrated through the heart and right lung.

Over defense counsel's objection, the trial court includedinstructions on the principles of accountability. Afterdeliberations, the jury found the defendant guilty of first-degreemurder (bodily harm) of Lambert, attempted murder of Harris andMatthews, aggravated battery with a firearm as to both Harris andMatthews, and aggravated discharge of a firearm. The trial courtdenied the defendant's posttrial motion. Regarding sentencing, theState conceded and the trial court agreed that the aggravatedbattery convictions merged with the attempted murder convictions. The State urged the trial court to impose consecutive sentencesbased on section 5--8--4(a) of the Unified Code of Corrections(Code) (730 ILCS 5/5--8--4(a) (West 1996)), seeking a finding thatthe defendant committed a Class X felony and inflicted severebodily injury. Defense counsel objected to the imposition ofconsecutive sentences, arguing that the State failed to presentevidence at sentencing regarding the issue of severe bodily injury.

The trial court sentenced the defendant to 40 years'imprisonment for the first-degree murder conviction, 10 and 12years' imprisonment for the convictions of the attempted murder ofHarris and Lambert, respectively, and 9 years' imprisonment for theaggravated discharge of a firearm conviction. The court orderedthe sentences for the murder and attempted murder convictions torun consecutively for a total of 62 years' imprisonment and thesentence for aggravated discharge of a firearm to run concurrently with the other sentences. The court based its decision to imposeconsecutive sentences on its findings that the defendant hadcommitted a Class X felony, that the offenses were part of a singlecourse of conduct with no substantial change in the nature of thecriminal objective, and that defendant inflicted severe bodilyinjury in the murder and attempted murder offenses. The trialcourt subsequently denied the defendant's motion to reconsider thesentences, and the defendant filed this timely appeal.

On appeal, the defendant first argues that he is entitled toa new trial because the trial court erroneously instructed the juryregarding the accountability theory. In the alternative, defendantasserts that there was insufficient evidence to support a guiltyverdict on a theory of accountability because the evidencesupported a guilty verdict based only on the defendant's acting asa principal. The State responds that there was sufficient evidenceto warrant the accountability instructions, there was sufficientevidence to support a guilty verdict on the theory ofaccountability, and that, even if the instruction was erroneous, itwas harmless error because there was overwhelming evidence that thedefendant was guilty as a principal.

It is well settled that a defendant's claim of improper juryinstructions is reviewed under a harmless-error analysis. Peoplev. Dennis, 181 Ill. 2d 87, 95 (1998). That is, improper juryinstructions will not warrant a new trial unless the result of thetrial would have been different had the jury been instructedproperly. People v. Pena, 317 Ill. App. 3d 312, 319 (2000). Forexample, when a jury is improperly instructed regarding theprinciples of accountability, a new trial is not warranted if theevidence is sufficient to find the defendant guilty beyond areasonable doubt as a principal. Pena, 317 Ill. App. 3d at 319.

In this case, there was ample evidence to support a guiltyverdict based on the defendant's acting as a principal. There wasuncontroverted evidence that, just prior to the shooting, thedefendant was riding in a car with two other men, yelling insultsand making insulting gestures at a rival gang, and that thedefendant and his cohorts were members of the Latin Kings, rivalsof the Gangster Disciples. Four witnesses, including bothsurviving victims, testified that a Hispanic or Mexican male whowore dark clothes approached the crowd outside the apartmentbuilding from Lincoln Street and shot at the crowd. Two women,Shayla Johnson and Nicole Pearson, who were present at the scene ofthe shooting, identified the defendant as the man who approachedand fired a gun into the crowd. It was uncontroverted that threepeople were shot, one fatally, and that the shooting occurred interritory "belonging" to the defendant's rivals, the GangsterDisciples. Another witness, Tracy Johnson, testified that after heheard shots he saw three Hispanic men run from the scene of theshooting back to a white Chevy Celebrity that was parked justoutside Gangster Disciple territory. Considering this evidence, wedetermine that there was ample evidence to find the defendantguilty beyond a reasonable doubt as a principal. Therefore, evenif there was not enough evidence to warrant instructing the jury onthe principles of accountability, the error was harmless and a newtrial is not required. See People v. Rhodes, 243 Ill. App. 3d 701,706 (1993).

Next, the defendant contends that his conviction of aggravateddischarge of a firearm was carved out of the same physical acts asthe convictions of first degree murder and attempted murder. Thus,the defendant argues that his conviction of aggravated discharge ofa firearm must be vacated under the one-act, one-crime doctrine. See People v. King, 66 Ill. 2d 551, 559-66 (1977).

After considering a similar argument in People v. Crespo, No.86556 (February 16, 2001), our supreme court recently held that thedefendant's conduct of stabbing a victim three times constitutedonly one single act and did not support multiple convictions. Thecourt stated that, although the conduct could have supported twoseparate convictions, one of aggravated battery and another ofarmed violence, the State did not differentiate between the stabwounds and did not apportion them to separate offenses either inthe charging instrument or to the jury at trial. Crespo, slip op.at 6-7. Therefore, the State was precluded from treating thedefendant's conduct as multiple acts supporting multipleconvictions. Crespo, slip op. at 8.

Crespo controls the issue presented to us here. In this case,the charging instrument indicates that the State intended to treatthe conduct of the defendant as a conglomerate of three gunshots. The indictment did not differentiate between the three gunshotsthat actually struck the victims and other shots that were fired bythe defendant without striking anyone. Rather, the aggravateddischarge of a firearm count charged the defendant with the sameconduct as the other counts but under a different theory ofculpability without distinguishing between the three shots thatstruck the victims and any other shots the defendant may havefired.

Further, at trial the prosecutor presented the case asinvolving a conglomerate of three shots. Although at least onewitness testified that he heard four or five shots, the prosecutor,during closing arguments, spoke only of the three shots that struckthe victims. He did not discuss the other shots that could havesupported a separate conviction of aggravated discharge of afirearm. The prosecutor never argued that some of the gunshotswould be sufficient to sustain a conviction of aggravated dischargeof a firearm and that other, separate shots would be sufficient tosustain a conviction of first-degree murder and attempted murder. Since the State failed to apportion the gunshots among the twocharges, it cannot do so now on appeal. Crespo, slip op. at 8. Further, because aggravated discharge of a firearm is a lessserious offense than first-degree murder and attempted murder, thedefendant's conviction of aggravated discharge of a firearm must bevacated. See People v. Milton, 309 Ill. App. 3d 863, 868 (1999).

Lastly, the defendant argues that the imposition ofconsecutive sentences violated his rights under the due processclause of the United States Constitution (U.S. Const., amend. XIV)as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000). This issue was not raised in thetrial court below; however, we will review it as plain errorbecause it affects a fundamental right. See People v. Keene, 296Ill. App. 3d 183, 186 (1998).

In Apprendi, the United States Supreme Court foundunconstitutional a New Jersey "hate crime" statute allowing theimposition of an extended-term sentence if the trial court found bya preponderance of the evidence that, when committing the offenseat issue, the defendant acted with a racially biased purpose. TheSupreme Court held that, "[o]ther than the fact of a priorconviction, any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, andproved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

In sentencing the defendant in this case, the trial judgefound that the defendant had been convicted of a Class X felony, nosubstantial change occurred in the nature of the criminalobjective, and the defendant had inflicted severe bodily injury. The trial court ordered the defendant's sentences to be servedconsecutively under section 5--8--4(a) of the Code (730 ILCS 5/5--8--4(a) (West 1996)). Relying on Apprendi, the defendant arguesthat section 5--8--4(a) is unconstitutional because it allows atrial court to make factual findings--in this case, a finding thatthe defendant inflicted severe bodily injury--that increase thepermissible range of penalties by requiring the defendant'ssentences to run consecutively. The State argues that Apprendidoes not apply to section 5--8--4(a) of the Code because thatsection does not authorize the imposition of a sentence that isbeyond the prescribed statutory maximum for any particular offense. Rather, the State asserts, an order that multiple sentences runconsecutively pursuant to section 5--8--4(a) affects only themanner in which the sentences will be served, not the length ofthose sentences.

Section 5-8-4(a) provides, in relevant part, as follows:

"The court shall not impose consecutive sentences for offenseswhich were committed as part of a single course of conductduring which there was no substantial change in the nature ofthe criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony andthe defendant inflicted severe bodily injury, *** in whichevent the court shall enter sentences to run consecutively." 730 ILCS 5/5--8--4(a)(West 1996).

We agree with the State that Apprendi was not violated here. The imposition of consecutive sentences does not increase thepenalty for a crime beyond the prescribed statutory maximum. Rather, it only determines the manner in which the sentence foreach individual offense is to be served. People v. Primm, 319 Ill.App. 3d 411 (2000). Our supreme court has characterizedconsecutive sentences as " 'sentences following in a train,succeeding one another in a regular order, with an uninterruptedcourse or succession, and having no interval or break.'[Citation.]" (Emphasis omitted.) Thomas v. Greer, 143 Ill. 2d 271,278 (1991). In other words, connecting the several individualfreight cars of a train together does not increase the size of eachindividual freight car. Thus, for purposes of an Apprendianalysis, the penalty for a crime is not increased when sentencesare ordered to be served consecutively under section 5--8--4(a) ofthe Code based on severe bodily injury. People v. Sutherland, 317Ill. App. 3d 1117, 1131 (2000).

We understand that the Appellate Court, First District, hasheld otherwise in People v. Clifton, Nos. 1-98-2126, 1-98-2384cons., slip op. at 54 (September 29, 2000), and People v. Carney,317 Ill. App. 3d 806 (2000). However, we respectfully disagreewith these decisions. These courts based their decisions on thestatement made in Apprendi that "the relevant inquiry is not one ofform" (Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct.at 2365) but of the effect of the required finding and that, sincea finding of severe bodily injury increased the sentence for asingle course of conduct, that finding had to be made by a factfinder and not the court. Carney, 317 Ill. App. 3d at 812-13;Clifton, slip op. at 54.

This reasoning expands the holding of Apprendi beyond itsscope. The statutory scheme invalidated in Apprendi permitted asentence to be extended past the maximum permitted by statute upona finding by the trial court that the defendant acted with aracially biased purpose. In this case, the defendant's sentencewas not extended but was ordered to be served consecutively, andthe defendant's mens rea was not at issue. Rather, the impositionof consecutive sentences was imposed after a finding that thedefendant inflicted severe bodily injury. Thus, we decline tofollow Carney and Clifton by expanding the holding of Apprendihere.

Further, even if an Apprendi violation occurred here, theerror is harmless beyond a reasonable doubt. The facts wereuncontroverted that in the two attempted murder offenses thedefendant shot one victim in the stomach and another in the back. Both victims required surgery and a lengthy hospital stay and thebullet remained in one victim at the time of trial. Therefore, noreasonable juror, having already found the defendant guilty of theoffenses charged, could have found that the defendant did notinflict severe bodily injury and, thus, the outcome would not havebeen different if a jury had decided this issue. See People v.Johnson, 149 Ill. 2d 118, 159 (1992) (supreme court determined thata gunshot wound to the shoulder constituted severe bodily injury);Primm, 319 Ill. App. 3d at 427 (appellate court held that gunshotto the thigh constituted severe bodily injury). Thus, we will notvacate the imposition of consecutive sentences.

The judgment of the circuit court of Kane County is affirmedin part and vacated in part.

Affirmed in part and vacated in part.

GEIGER and GROMETER, JJ., concur.