                                                                       FOURTH DIVISION
                                                                       March 30, 2006


No. 1-04-1389

THE PEOPLE OF THE STATE OF ILLINOIS,                           )      Appeal from the
                                                               )      Circuit Court of
       Plaintiff-Appellee,                                     )      Cook County.
                                                               )
v.                                                             )      No. 01CR2559
                                                               )
DENNIS LIGON,                                                  )      The Honorable
                                                               )      Henry R. Simmons, Jr.,
       Defendant-Appellant.                            )       Judge Presiding.


       JUSTICE GREIMAN delivered the opinion of the court:

       Following a jury trial, defendant Dennis Ligon was found guilty of aggravated vehicular

hijacking and was sentenced to natural life in prison. On appeal, defendant contends (1) that he

was not proven guilty beyond a reasonable doubt; (2) that there was a fatal variance between his

indictment and the proof submitted at trial; (3) that his trial counsel was ineffective; (4) that he

was denied a fair trial by comments made by the State in its closing argument; and (5) that

section 33B-1 of the Criminal Code of 1961 (720 ILCS 5/33B-1 (West 2002)), pursuant to which

defendant=s sentence was extended, deprived him of his constitutional right to a jury and due

process rights.

       At trial, Ana Diaz testified that on December 16, 2000, at 1:15 p.m., she drove her red

Ford 150 pickup truck into the Sears= parking lot at 6153 South Western Avenue in Chicago. As

she was looking for a parking space, Diaz noticed defendant standing near a pile of snow. Diaz

parked and was getting out of her truck when she was approached from behind by defendant,

who blocked her into her truck and told her to leave the keys in the ignition and to get out.

Defendant was very close to Diaz, looking at her in the eye. Diaz felt defendant pushing
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something into her ribs. When she heard a click, Diaz looked down and saw a gun in defendant=s

hand. Diaz screamed, handed defendant her keys and moved away from the truck. As defendant

drove away in Diaz=s truck, he hit another car. Diaz borrowed a cellular phone to call the police.

Humberto Perez came to Diaz=s assistance, following defendant for several blocks before losing

him. On January 3, 2001, Diaz went to the police station to view a lineup. She identified

defendant out of a lineup as the man who had stolen her truck. Diaz recovered her truck. At

trial, Diaz made an in-court identification of defendant, identified defendant out of a picture of

the lineup and identified a BB gun as the gun defendant had pushed into her ribs. The picture

and the gun were admitted into evidence.

       Humberto Perez testified that on December 16, 2000, at 1:15 p.m., he was walking

through the Sears= parking lot toward his car. He noticed a man talking very closely to a woman

getting out of a red truck. When Perez got into his car, he heard a scream coming from the

direction of the red truck. Perez drove over to Diaz, who told him that her truck had been stolen.

Perez followed the red truck for several blocks but lost the truck when it ran a red light.

       Georgio Dawson, a 13-year-old boy, testified that he knew defendant through his mother.

On January 2, 2001, at 8 p.m., defendant was babysitting Dawson while his mother worked.

Defendant and Dawson went for a ride in defendant=s red Ford truck. Dawson had also ridden in

the truck a few weeks earlier when defendant had taken Dawson and his mother grocery

shopping. Defendant and Dawson picked up a man Dawson described as Adark@ and Abald@ and

then stopped while defendant talked to a woman named Tenita. Defendant told Tenita that he

would pick her up later in the evening. Thereafter, defendant and Dawson dropped off the dark,



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bald man and picked up defendant=s son, Dennis Compton. Dawson testified that Compton

looked like his father but was smaller in height and stature. After dropping Compton off,

defendant and Dawson picked up Tenita. Defendant then dropped Dawson off at defendant=s

girlfriend=s house. Defendant told Dawson that he would be back in 40 minutes to pick him up

and would honk the horn when he got there. Several hours later, Dawson heard a horn honking

and looked out of the window to see the red truck. Dawson went and got into the truck. Tenita

was in the truck but defendant was not. Shortly thereafter, a police car approached the truck.

The police officer told Dawson and Tenita to get out of the truck. The officer searched the truck

and found a BB gun. Dawson identified the BB gun at trial. Dawson told the officer that the

driver of the truck was named Dennis and went with the police to look for defendant. Defendant

was found near an elevated train station. Dawson testified that, at all times, defendant was

driving the truck and that he never witnessed Compton driving the truck.

       Tenita Barber testified that, though she had seen defendant driving in a red truck several

times at the end of December 2000, she first spoke with defendant on December 31, 2000.

Barber next saw defendant driving the red truck on January 2, 2001, at 9 p.m. On that occasion,

defendant was with Dawson and a man Barber also described as Adark@ and Abald.@ Defendant

told Barber that he would come back to pick her up at 10:45 p.m. and to come to the truck when

she heard him honk. At about 11 p.m., Tenita heard defendant honking and got into the truck.

Tenita testified that only defendant and Dawson, who defendant introduced as his stepson, were

in the truck. Defendant and Tenita dropped Dawson off and proceeded to drive around, drinking

alcohol and smoking marijuana. Defendant told Tenita that he had just bought the truck.



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Eventually, defendant and Tenita drove back to where they had left Dawson. Defendant honked

the horn but got out of the truck when Dawson did not come out of the apartment. After

defendant had walked away from the truck, Dawson came out of the apartment and got into the

truck. Shortly thereafter, the police arrived and asked Dawson and Barber to get out of the truck.

As they were searching the truck, Barber heard the police officers say that they had found a BB

gun. Barber was arrested and charged with criminal trespass to a vehicle.

        Timako Cobb, Dawson=s mother, testified that she met defendant in December 2000 and

that, when he took her and her son to the grocery store in late December, defendant was driving a

red Ford truck. On January 2, 2001, defendant offered to watch Dawson while Cobb was at

work. On that day, defendant was still driving the red truck.

        Officer Eric Helson testified that on January 3, 2001, at 5:10 a.m., he and his partner

were on duty when they noticed another patrol car stopped near a red Ford truck. After talking

to the officer who had arrived on the scene earlier and Dawson and Barber, Officer Helson and

his partner took Dawson to look for defendant. Defendant was found standing near the entrance

to an elevated train station about a block and a half from the red truck. A BB gun was recovered

from the driver=s side floor of the truck. Officer Helson identified the BB gun at trial.

        Forensic scientist Debra McGarry, a specialist in latent fingerprints, was sent the BB gun,

which she identified at trial, for latent print analysis. McGarry took steps to determine whether

any prints on the gun were suitable for comparison and determined that there were no suitable

latent prints. Because the grip of the BB gun was textured, McGarry testified that she did not

expect to retrieve suitable prints.



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       The parties stipulated that Diaz was the owner of the red Ford truck in which Barber and

Dawson were riding.

       The jury found defendant guilty of aggravated vehicular hijacking.

       Following his trial, defendant filed a pro se motion for judgment notwithstanding the

verdict. In his motion, defendant requested a hearing on the issues of whether he was charged

with an unconstitutionally vague statute, whether the police had destroyed exculpatory evidence,

whether he had been proven guilty beyond a reasonable doubt, and whether defense counsel was

ineffective for failing to move to dismiss defendant=s indictment, to move to quash defendant=s

arrest, to move to suppress suggestive identification evidence, to challenge the destruction of

exculpatory evidence, to call witnesses to testify to the misidentification of defendant, and to

consult with defendant prior to admitting defendant=s guilt in the defense=s opening statement.

       The public defender also filed a motion for new trial on defendant=s behalf, alleging that a

new trial was warranted because of the State=s prejudicial comments during closing, because

defendant was not proven guilty beyond a reasonable doubt, and because no evidence was

presented at trial that the BB gun was used as a bludgeon, as was averred in defendant=s

indictment. Thereafter, the public defender was allowed to withdraw and attorney Steven Decker

was appointed to represent defendant.

       Decker filed a supplemental motion for new trial which incorporated defendant=s pro se

motion and the public defender=s motion. Decker additionally alleged that trial counsel was

ineffective in failing to call Compton, as he indicated to the jury that he would during

defendant=s opening statement, and because the proof provided at trial regarding the BB gun



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differed from the indictment.

       At the hearing on the motion for new trial, public defender Anthony Thomas, who, along

with Camille Calabrese, had represented defendant at trial, testified that prior to defendant=s trial,

he had reviewed the police reports and had developed a trial strategy of misidentification

because the witnesses= descriptions of the perpetrator of the vehicular hijacking more closely

resembled Compton than defendant. Thomas testified that he interviewed Compton twice, once

on the first or second day of trial, and once on the next day. During the interviews, Compton=s

account of how he came into possession of the pickup was erratic, contradictory and

inconsistent. At one point during the interviews, when Thomas pointed out that Compton=s

account was inconsistent, Compton asked Thomas Awhat do you want me to say?@ This

comment caused Thomas to believe that Compton would perjure himself if called to testify.

Moreover, on the day that Compton was to testify, he was arrested in the courthouse for

intimidating Dawson. Thomas was concerned that if Compton was called, the facts of that

offense would come out before the jury and would harm defendant=s case. Accordingly, Thomas

testified that, after interviewing Compton, he formed the opinion that, due to the above-discussed

considerations, Compton=s inappropriate dress, tattoos, and use of street language, the jury would

not view him as a favorable witness. Thomas expressed his opinion to defendant and indicated

that, despite his reservations, he would call Compton to testify if defendant so requested.

Defendant agreed that Thomas should not call Compton. Thomas acknowledged that he did not

call Compton to testify, nor did he display Compton to the jury. Thomas additionally testified

that he chose not to move to quash defendant=s arrest and to suppress lineup evidence because he



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did not believe there was sufficient evidence to sustain such motions and because he did not

want to give away the defense=s theory of the case prior to trial. Thomas indicated that defendant

agreed with his decision.

       Compton testified that he came to court during the trial with the intention of testifying on

defendant=s behalf. Compton testified that during his interviews with the public defenders, he

did not indicate what his testimony would be. During the hearing, Compton indicated that he

would have testified that neither he nor defendant committed the hijacking and that he had not

witnessed who did. Compton admitted that, during the trial, he was arrested and pled guilty to

communicating with the witness Dawson. Compton further admitted that he had previously been

twice convicted of other crimes.

       Defendant testified that he had not told Thomas not to file a motion to quash arrest and

suppress evidence or not to call Compton. According to defendant, on the morning that he was

arrested, he was on his way to visit Compton, who lived very close to where the truck was

recovered and who had knowledge of the truck=s provenance.

       Following argument on the ineffective assistance issue and the other remaining issues,

the trial court denied the motion for new trial. Defendant was sentenced to natural life in prison.

Defendant appealed.

       We first acknowledge the State=s argument that several of defendant=s contentions on

appeal are waived because they were not raised at trial and in a posttrial motion. See People v.

Enoch, 122 Ill. 2d 176, 186 (1988). We note that waiver is a limitation on the parties, not on this

court (In re W.C., 167 Ill. 2d 307, 323 (1995)) and further find that, waiver aside, defendant=s



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several contentions do not warrant remand or reversal.

       On appeal, defendant first contends that the State failed to prove aggravated vehicular

hijacking beyond a reasonable doubt because it did not prove that he committed the offense with

a dangerous weapon other than a firearm.

       In assessing defendant=s first contention, Athe relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.@ (Emphasis in original.)

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).

       Section 18-4(a)(3) of the Criminal Code of 1961, pursuant to which defendant was

convicted, provides:

               A(a) A person commits aggravated vehicular hijacking when he or she

       violates Section 18-3; and

                                                ***

               (3) he or she carries on or about his or her person, or is otherwise

               armed with a dangerous weapon, other than a firearm[.]@ 720 ILCS

               5/18-4(a)(3) (West 2000).

       As in the Illinois armed robbery statute (720 ILCS 5/18-2(a) (West 2000)), the definition

of the term Adangerous weapon@ cannot be found in the aggravated vehicular hijacking statute.

In People v. Thorne, 352 Ill. App. 3d 1062 (2004), in assessing the definition of the term in the

context of the robbery statute, we wrote:

               A[O]ur courts have defined the term by dividing objects alleged to be



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       >dangerous weapons= into four categories. [Citation.] The first category consists of

       objects that are dangerous per se, such as knives and loaded guns. [Citation.] The

       second category consists of objects that are never dangerous weapons, such as a

       four-inch plastic toy gun. [Citation.] The third category consists of objects that are

       not necessarily dangerous weapons but can be used as such, for instance, an

       unloaded gun or a toy gun made of heavy material, which are incapable of

       shooting bullets but can be used as a bludgeon [citation] or, as another example,

       fingernail clippers with a sharpened file [citation]. The fourth category consists of

       objects that are not necessarily dangerous but were actually used in a dangerous

       manner in the course of the robbery.@ Thorne, 352 Ill. App. 3d at 1070-71.

In Thorne, there was no evidence presented at trial that the BB gun the defendant used in the

robbery at issue was loaded or was, in fact, used in a dangerous manner during the robbery.

Accordingly, we found that BB gun fell within the third category and that A[t]herefore, whether

the BB gun is a dangerous weapon is a question of fact to be resolved by the trier of fact.@

Thorne, 352 Ill. App. 3d at 1072, citing People v. Lindsay, 263 Ill. App. 3d 523, 528 (1994);

People v. Flores, 245 Ill. App. 3d 149, 158 (1993). We determined that the evidence presented at

trial was insufficient to support a finding that the BB gun could have been used as a dangerous

weapon because no testimony was presented that the BB gun was actually used in a dangerous

manner, no testimony was presented as to the BB gun=s weight or metallic nature and Athe State

did not introduce the gun into evidence and provided no pictures for the trial court to view the

makeup of the gun.@ Thorne, 352 Ill. App. 3d at 1073. Accordingly, we reversed the defendant=s



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armed robbery conviction.

       Defendant argues that the facts of the case at bar are analogous to those of Thorne. We

disagree. The State did not argue at trial, nor does it here, that the BB gun was a dangerous

weapon, per se. Moreover, there was no evidence presented at trial that the BB gun was actually

used in a dangerous manner. So, as in Thorne, the BB gun in the present case fell into the third

category of dangerous weapons. Case law provides that an unloaded BB gun may be a

dangerous weapon if it can be used in a dangerous manner, for example, as a bludgeon. See

Thorne, 352 Ill. App. 3d 1062; People v. De La Fuente, 92 Ill. App. 3d 525 (1981). The

reasoning for such a rule was articulated in People v. Skelton, 83 Ill. 2d 58 (1980), in which the

supreme court observed:

       A[M]any objects, including guns, can be dangerous and cause serious injury, even

       when used in a fashion for which they were not intended. Most, if not all,

       unloaded real guns and many toy guns, because of their size and weight, could be

       used in a deadly fashion as bludgeons. Since the robbery victim could be quite

       badly hurt or even killed by such weapons if used in that fashion, it seems to us

       they can properly be classified as dangerous weapons although they were not in

       fact used in that manner during the commission of the particular offense. It

       suffices that the potential for such use is present; the victim need not provoke its

       actual use in such manner.@ Skelton, 83 Ill. 2d at 66.

The question of whether the BB gun could be used as a dangerous weapon was a question of fact

for the jury to determine. This case differs from Thorne because here, at trial, the BB gun was



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admitted into evidence and was available for examination by the jury during deliberation.

Having examined the BB gun, which has been included in the record on appeal, we cannot say

that the jury=s finding that it could have been used as a dangerous weapon was erroneous.

       Defendant next contends that a fatal variance between the indictment and the proof of the

crime offered at trial requires reversal of his conviction.

       Due process requires that an indictment must apprise a defendant of the precise offense

with which he is charged. People v. Alexander, 93 Ill. 2d 73, 79 (1982). A fatal variance

between the instrument charging a defendant and the proof pursuant to which defendant is

convicted at trial requires reversal of the defendant=s conviction. People v. Johnson, 65 Ill. 2d

332, 337 (1976). ATo be fatal, a variance between the charging instrument and the proof at trial

must be material and of such character that it misleads the accused in making his defense or

exposes him to double jeopardy.@ People v. Arndt, 351 Ill. App. 3d 505, 518 (2004).

       Defendant was charged by indictment with one count of aggravated vehicular hijacking

on February 6, 2001. The indictment alleged that defendant

       Aknowingly took a motor vehicle, to wit: a 2000 Ford, from the person or

       immediate presence of Anna [sic] Diaz, by the use of force or by threatening the

       imminent use of force and [defendant] was armed with a dangerous weapon, to

       wit: a bludgeon, in violation of Chapter 720 Act 5 Section 18-4(a)(3) of the

       Illinois Compiled Statutes 1992 as amended.@

During his opening statement, the prosecutor stated that defendant

       Aarmed himself with the universal currency that no one can say no to, a pistol.



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       This pistol he brought with him, as you=ll see, is in fact a BB gun. And as you see

       during this time it looks real enough.@

Citing the above-quoted statement, defendant contends that the allegation contained in the

indictment, that the dangerous weapon was a bludgeon, and what was proven at trial, that the

dangerous weapon was an Aimitation firearm,@ varied. He further alleges that the variance was

material because he was prejudiced by it. Specifically, defendant alleges that, had he

       Aknown he would have to defend himself against accusations that he used a BB

       gun as an imitation firearm, *** [he] would have adduced evidence regarding the

       BB gun=s size, weight, and composition to establish that it was not a dangerous

       weapon. *** He also might have presented a much different closing argument,

       arguing the BB gun=s lack of dangerousness instead of denying possession of the

       BB gun altogether.@

       The State replies that no variance exists. The State notes that no evidence was presented

at trial to prove that the BB gun was dangerous because it was a firearm and that Athe gun was

admitted into evidence at trial and the jurors obviously determined for themselves that the gun

could have been used as a bludgeon.@ The State argues, in the alternative, that any variance was

not material because the particular kind of dangerous weapon with which defendant was armed

was not essential to the charge of aggravated vehicular hijacking and because defendant=s

allegation that his defense would have been different had he known he was defending against an

allegation that the BB gun was dangerous because it was a firearm is Anonsensical.@ The State

observes that evidence relating to the BB gun=s size, weight and composition Amost readily



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relate[s] to using the BB gun as a bludgeon - - not to using it as an imitation firearm.@

        We agree with the State that there is no variance between the indictment and what was

proven at trial. At trial, the BB gun itself was admitted into evidence. Accordingly, the jurors

were able to judge its size, weight and composition. As discussed above, the admission of the

BB gun supported a finding beyond a reasonable doubt that defendant was armed with a

dangerous weapon. No evidence was adduced, such as evidence that the BB gun was loaded or

that it could cause bodily harm were it discharged by defendant, that would support a finding

that the BB gun was a dangerous firearm. We conclude, therefore, that defendant=s contention

that his conviction should be reversed because the proof at trial showed that he was armed with a

firearm while the indictment alleged that he was armed with a bludgeon is without merit.

        Defendant=s reliance on People v. Durdin, 312 Ill. App. 3d 4 (2000), in support of this

contention is misplaced. In Durdin, the defendant was charged with one count of delivering

cocaine within 1,000 feet of a school, a Class 1 felony, and one count of delivering heroin, a

Class 2 felony, for a single transaction. At trial, the parties stipulated that the controlled

substance at issue was heroin. Defendant was convicted of both counts. We reversed the

defendant=s conviction of delivery of cocaine, noting that the State conceded error and that the

defendant had been wrongly convicted of delivery of cocaine because there was no proof at trial

that the single transaction at issue had involved cocaine. Here, on the contrary, defendant was

not convicted of the wrong crime. Moreover, the allegations of the indictment were, in fact,

proven at trial.

        Defendant next contends that he was denied effective assistance of counsel when his



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attorneys stated in his opening statement that they would produce defendant=s look-alike son

Compton at trial and that they would show that Compton lived near where the truck was

recovered, but failed to do so.

       ATo support a claim of ineffective assistance of counsel, a defendant must allege facts

demonstrating that his attorney=s representation fell below an objective standard of

reasonableness and that there is a reasonable probability that, but for counsel=s errors, the result

of the proceeding would have been different.@ People v. Patterson, 192 Ill. 2d 93, 107 (2000),

citing Strickland v. Washington, 466 U.S. 668, 687, 695, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct.

2052, 2064, 2068-69 (1984). Because a defendant must satisfy both prongs of the above-

articulated test, failure to satisfy either prong precludes an ineffective assistance finding. People

v. Shaw, 186 Ill. 2d 301, 332 (1998). In assessing an ineffective assistance claim, there is a

strong presumption that counsel=s actions were the result of sound trial strategy. People v.

Coleman, 183 Ill. 2d 366, 397 (1998). While generally, the question of which witnesses to call

to testify is a matter of trial strategy that is immune from claims of ineffective assistance of

counsel (People v. Munson, 206 Ill. 2d 104, 139-40 (2002)), and Acounsel need not call a witness

if he reasonably believes that under the circumstances the individual=s testimony is unreliable or

would likely have been harmful to the defendant@ (People v. Flores, 128 Ill. 2d 66, 106 (1989)),

counsel=s assistance may be ineffective if he promises that a particular witness will testify during

his opening statement but does not provide the promised testimony during trial (see, e.g., People

v. Oritz, 224 Ill. App. 3d 1065 (1992)). Nonetheless, A[a] counsel=s failure to provide promised

testimony is not ineffective assistance per se.@ People v. Manning, 334 Ill. App. 3d 882, 892



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(2002). Moreover, Case law suggests that the decision not to provide promised testimony may

be warranted by unexpected events. See People v. Briones, 352 Ill. App. 3d 913, 918 (2004)

(citing United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003), for the

proposition that if counsel=s failure to present promised testimony is not due to unforeseen

events, it may be unreasonable).

       Defendant analogizes the case at bar to Oritz. In Oritz, the defendant was charged with

aggravated battery of his girlfriend. In opening, defense counsel stated that he would present

evidence that the victim had another boyfriend and that, when that boyfriend was stopped for

questioning by the police, he had two knives in his possession. During the State=s case-in-chief,

defense counsel attempted to cross-examine the victim about her other boyfriend but was

precluded from doing so because his questions were beyond the scope of the State=s direct

examination of the witness. During the defendant=s case-in-chief, defense counsel attempted to

question his witness about the other boyfriend on redirect examination and was again precluded

from doing so because his questions were beyond the scope of cross-examination. The

defendant was found guilty by the jury. On appeal, we reversed the conviction, finding defense

counsel ineffective. Defense counsel=s representation fell below a reasonable level because he

clearly misunderstood the fundamental rules of witness examination and the defendant was

prejudiced by defense counsel=s opening statements because they created an expectation on the

part of the jury and because the case was close.

       We find Oritz distinguishable and the facts of People v. Schlager, 247 Ill. App. 3d 921

(1993), closer to the facts of this case. In Schlager, the defendant was charged with the



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attempted murder of his wife. In opening, defense counsel stated that the jury would hear

testimony from the defendant and from experts who would testify that the defendant=s actions

were a result of a prescription drug the defendant had been taking. Defense counsel did not call

the defendant or the experts to testify at trial and the defendant was found guilty. At a hearing

on the defendant=s posttrial motion alleging ineffective assistance, the defendant presented

various experts to testify that prescription drugs had caused the defendant=s actions and to show

that defense counsel had not adequately investigated or defended the case. The trial court denied

the defendant=s motion. On appeal, we affirmed the trial court=s judgment, finding that defense

counsel had not shown a misunderstanding of the law, nor did he fail to subject the State=s

witnesses to vigorous cross-examination or make flawed legal arguments. On the contrary, the

record of the hearing made clear that defense counsel=s decision not to pursue the defense that

the prescription drug had caused the defendant=s actions was a matter of sound trial strategy

because the scientific principles upon which such a defense was based were not solid and, in the

absence of the defendant=s testimony that he had actually taken the drugs, which he had not been

prescribed but of which he had obtained samples, the defense could be given little weight. We

further found that defense counsel was not ineffective in failing to call the defendant to testify

because there were many ways in which the defendant=s credibility could have been challenged.

       Here, as in Schlager, sufficient evidence was presented at the hearing on defendant=s

posttrial motion to conclude that defense counsel=s decision not to present Compton was one of

sound trial strategy. During defense counsel=s interviews of Compton, Compton=s accounts of

how he came to possess the truck were contradictory, leading defense counsel to believe that



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Compton would perjure himself if called to testify. Defense counsel was also concerned that the

facts of Compton=s arrest for intimidation of Dawson would come out at trial, undermining

Compton=s credibility. Furthermore, in defense counsel=s opinion, Compton=s dress and use of

street language would not endear him to the jury. At the hearing, Compton admitted that he had

previously been convicted twice. He indicated that he would have testified at trial merely that

neither he nor defendant hijacked the truck but that he did not know who did. Such vague

testimony is unlikely to have bolstered defendant=s case, particularly in light of the ways in

which Compton=s credibility may have been challenged and the evidence of defendant=s guilt.

Accordingly, in this case, unlike in Oritz, in which defense counsel=s failure to provide promised

testimony was clearly a product of his misunderstanding of the law, defense counsel=s decision

not to present Compton was a matter of trial strategy. Defendant=s claim of ineffective

assistance, therefore, fails.

        Defendant also contends that defense counsel was ineffective for failing to properly

investigate the case prior to trial when he did not interview Compton until after trial had begun.

In support of this contention, defendant cites section 4-4.1 of the American Bar Association

Standards for Criminal Justice, which is entitled ADuty to Investigate.@ Section 4-4.1(a) provides,

in relevant part, A[d]efense counsel should conduct a prompt investigation of the circumstances

of the case and explore all avenues leading to facts relevant to the merits of the case and the

penalty in the event of conviction.@ ABA Standards for Criminal Justice 4-4.1(a) (3d ed. 1993).

        We decline to adjudicate this contention. This issue was not specifically raised in

defendant=s posttrial motion and no evidence pertaining to this particular contention was elicited



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during the hearing on the motion. For instance, the court did not hear evidence that Compton

was, in fact, available to be interviewed prior to the commencement of trial. Consequently, we

cannot determine from the record whether defense counsel=s decision not to interview Compton

until trial had commenced was a matter of necessity, because Compton was unavailable or some

other extenuating circumstance existed, a matter of trial strategy or simply a result of

incompetence.

       A >Where the disposition of a defendant=s ineffective assistance of counsel claim

       requires consideration of matters beyond the record on direct appeal, it is more

       appropriate that the defendant=s contentions be addressed in a proceeding for

       postconviction relief, and the appellate court may properly decline to adjudicate

       the defendant=s claim in his direct appeal from his criminal conviction.= @ People

       v. Parker, 344 Ill. App. 3d 728, 737 (2003), quoting People v. Burns, 304 Ill. App.

       3d 1, 11 (1999).

       In a petition for rehearing, defendant raises the very closely related contention that

defense counsel was ineffective because he did not have a reasonable basis to believe that

Compton would testify when he made his opening remarks to the jury. In support of this

contention, defendant cites section 4-7.4 of the American Bar Association Standards for

Criminal Justice, entitled AOpening Statement,@ which provides A[d]efense counsel should not

allude to any evidence unless there is a good faith and reasonable basis for believing such

evidence will be tendered and admitted in evidence.@ ABA Standards for Criminal Justice 4-7.4

(3d ed. 1993).



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       As with defendant=s last contention, we refuse to address this contention because we find

that it could more appropriately be addressed in a proceeding for postconviction relief. See

Parker, 344 Ill. App. 3d at 737; Burns, 304 Ill. App. 3d at 11. Defendant did not raise this

particular contention in his posttrial motion. At the hearing, Compton testified that he did not

speak to defense counsel until the day of trial. Defense counsel testified that he had spoken with

Ligon several times prior to trial and that he had specifically had spoken to defendant about

Compton. Nonetheless, defense counsel was not asked about his reasons for his opening

statement that Compton would testify. Accordingly, it is impossible for us, at this juncture, to

determine whether, despite the fact that he had not yet interviewed Compton, trial counsel had

some other reasonable basis to believe that Compton would testify.

       Put another way, we simply cannot adequately address defendant=s contentions that he

was deprived of effective assistance of counsel by defense counsel=s failure to interview

Compton prior to the day of trial and whether defense counsel had a reasonable basis for stating

in opening that Compton would testify. There is no evidence on the record concerning defense

counsel=s reasons for not interviewing Compton prior to the commencement of trial or the basis

on which defense counsel believed, at the time the opening statement was made, that Compton

would testify.

       Defendant next contends that he was deprived of a fair trial by the cumulative effect of

the State=s erroneous closing comments.

       We initially note that a prosecutor is given wide latitude in argument, may comment on

the facts of the case and legitimate inferences that may be drawn therefrom and may discuss



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subjects of general knowledge, common experience, or common sense. People v. Beard, 356 Ill.

App. 3d 236, 242 (2005).

              A[T]he defendant faces a substantial burden in attempting to achieve

       reversal based upon improper remarks made during closing argument. Although

       the prosecutor=s remarks may sometimes exceed the bounds of proper comment,

       the verdict must not be disturbed unless it can be said that the remarks resulted in

       substantial prejudice to the accused, such that absent those remarks the verdict

       would have been different.@ People v. Byron, 164 Ill. 2d 279, 295 (1995).

       The first comment to which defendant objects related to Dawson=s testimony and was

made in the State=s rebuttal closing argument. The prosecutor stated:

       AThe defense would have you believe that the State=s Attorney talked to him for

       seven to eight hours, and you all know that that is not possible because the first

       day we were in here with you all.

              ***

              The first day you all came in here I believe around 11:00 or 11:30, and we

       picked a jury that day. We were here with all of you. We were not sitting there

       putting words into Georgio Dawson=s mouth, as they would have you believe.

       The second day Georgio was here in the morning. We spoke to him, but we were

       sitting here the rest of the day. To a 13 year old kid coming here, it is probably

       like going to the doctor, and it probably felt like seven to eight hours, but it

       wasn=t.@



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Defendant contends that this comment was erroneous because it expressed the prosecutor=s

personal belief of Dawson=s credibility and amounted to a testimonial statement by the

prosecutor. The State responds that the comment was invited by defendant=s closing comment

that Dawson had been arrested and was not being charged because he cooperated with the State.

        Defendant is correct that a prosecutor may not express personal beliefs or opinions, or

invoke the integrity of his office to vouch for a witness=s credibility. People v. Lee, 229 Ill. App.

3d 254, 260 (1992). Nonetheless, we disagree with defendant=s assessment of these comments.

At trial, in addition to testifying that, from his first interview until the time of his testimony, he

had talked with the assistant State=s Attorneys for seven or eight hours, Dawson testified that he

arrived the day of jury selection after 9 a.m. and was allowed to leave at about 1 p.m. and that on

that day, he did not talk to the assistant State=s Attorneys the entire time he was at the

courthouse. Dawson further stated that on the day he testified, he arrived after 9 a.m.

Accordingly, the State=s closing comment was not an endorsement of Dawson=s testimony but

was instead a comment and emphasis on his differing testimony.

        Defendant also objects to the prosecutor=s use of the words Aridiculous,@ Asad@ and

Apathetic@ to describe the defense. Specifically, the prosecutor stated in the State=s rebuttal

closing argument:

                AYou know, it=s pathetic that the Defense has to attack an 11 year old boy,

        pathetic.

                                                  ***

                Another ridiculous argument B and you will have this back with you. You



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1-04-1389

       have all seen it already, but it=s sad and pathetic that their argument is, well,

       because he had on two coats in Chicago on the 2nd day of January that he couldn=t

       have been.@

       In People v. Kirchner, 194 Ill. 2d 502 (2000), the supreme court observed:

               AThe State may challenge a defendant=s credibility and the credibility of

       his theory of defense in closing argument when there is evidence to support such

       a challenge. [Citation.] It is well established, however, that > A[u]nless based on

       some evidence, statements made in closing arguments by the prosecution which

       suggest that defense counsel fabricated a defense theory, attempted to free his

       client through trickery or deception, or suborned perjury are improper.

       [Citations.]@ = @ (Emphasis in original.) Kirchner, 194 Ill. 2d at 549, quoting

       People v. Jackson, 182 Ill. 2d 30, 81 (1998), quoting People v. Emerson, 97 Ill. 2d

       487, 497 (1983).

       We find the case at bar distinguishable from Emerson, upon which defendant relies. In

Emerson, the supreme court reversed a conviction where the prosecutor had insinuated, during

closing argument,

       Athat the defendant was guilty of improper conduct at the time of his arrest; stated

       that defense counsel has laid down a smokescreen >composed of lies and

       misrepresentations and innuendoes= and attempted to >dirty up the victim= to

       distract the attention of the jury from the defendant=s crimes; and stated that if

       they could, defense counsel would deny that any death occurred, but since they



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1-04-1389

       could not realistically do that, they had to >make something up.= @ Byron, 164 Ill.

       2d at 296-97, quoting Emerson, 97 Ill. 2d at 496-98.

Here, unlike in Emerson, the prosecutor did not allege that defense counsel had deliberately lied

to the jury or had fabricated a defense. Instead, we find that the objected-to comments were

proper comments Aon the credibility of the defendant and his theory of defense rather than an

impermissible attack on defense counsel.@ Kirchner, 194 Ill. 2d at 549.

       Defendant further contends that the prosecutor=s closing remarks impermissibly

denigrated the State=s burden of proof. Defendant points to the prosecutor=s statement:

       AOur burden is beyond a reasonable doubt, not beyond all doubt, beyond a

       reasonable doubt. That is the burden that we embrace. It=s a burden we=re proud

       of. *** It=s a burden that=s met every single day in courtrooms. [Defense objection

       overruled.] It=s a burden that=s met every single day in courtrooms throughout

       [defense objection overruled] our fine country. It is a burden that we have met,

       and we=re asking you to return the only true and just verdict, and that is to find the

       defendant guilty.@

       Comments by a prosecutor during closing statements which minimize the State=s burden

of proving guilt beyond a reasonable doubt by suggesting that the burden is merely a pro forma

or a minor detail are improper. People v. Frazier, 107 Ill. App. 3d 1096, 1102 (1982).

Nonetheless, comments nearly identical to those of the prosecutor in this case have consistently

been found not to have reduced the State=s burden of proof. See People v. Moore, 171 Ill. 2d 74,

103-04 (1996); People v. Phillips, 127 Ill. 2d 499, 528 (1989); People v. Gacho, 122 Ill. 2d 221,



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1-04-1389

255 (1988); People v. Bryant, 94 Ill. 2d 514, 523 (1983); People v. Brandon, 243 Ill. App. 3d

515, 521 (1993). People v. Starks, 116 Ill. App. 3d 384 (1983), upon which defendant relies is

distinguishable from the present case because there the prosecutor made the egregious comment

that A >there=s nothing special going on here and we don=t have a burden, no matter what [the

defense attorney] would like you to think=.@ (Emphasis added.) Starks, 116 Ill. App. 3d at 395.

       Having determined that none of the closing comments objected to by defendant were

erroneous, we find that defendant=s contention that he was denied a fair trial by the cumulative

effect of the comments is also without merit. See People v. Doyle, 328 Ill. App. 3d 1, 15 (2002)

(A[w]here the alleged errors do not amount to reversible error on any individual issue, there

generally is no cumulative error@).

       Finally, defendant contends that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147

L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Shepard v. United States, 544 U.S. __, 161 L. Ed. 2d

205, 125 S. Ct. 1254 (2005), his jury trial and due process rights were violated when the facts

regarding the sequence and timing of his prior convictions, required for imposition of his

extended natural life sentence by section 33B-1 of the Criminal Code of 1961 (720 ILCS 5/33B-

1 (West 2002)), were not submitted to a jury or proven beyond a reasonable doubt.

       Section 33B-1 provides that a person who has previously been twice convicted of a Class

X felony, criminal sexual assault, aggravated kidnaping or first degree murder for two different

offenses, shall be sentenced as for a third Class X felony, criminal sexual assault or first degree

murder to natural life in prison provided:

               A(1) the third offense was committed after the effective date of this Act;



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1-04-1389

                 (2) the third offense was committed within 20 years of the date that

       judgment was entered on the first conviction, provided, however, that time spent

       in custody shall not be counted;

                 (3) the third offense was committed after conviction on the second

       offense;

                 (4) the second offense was committed after conviction on the first

       offense.@ 720 ILCS 5/33B-1 (West 2002).

       In Apprendi, the Supreme Court discussed Almendarez-Torres v. United States, 523 U.S.

224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), which held that a federal statute authorizing a

trial judge to enhance a defendant=s sentence based on the fact of a prior conviction did not

violate the defendant=s constitutional rights. The Apprendi Court held that A[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.@

Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. We have uniformly held

section 33B-1 to be constitutional because the facts required for an enhanced sentence fall within

the recidivism exception to the rule articulated in Apprendi. See, e.g., People v. Pickens, 323 Ill.

App. 3d 429 (2001); People v. Boston, 324 Ill. App. 3d 557 (2001); Morissette v. Briley, 326 Ill.

App. 3d 590 (2001); People v. Jones, 328 Ill. App. 3d 233 (2002); People v. Allen, 335 Ill. App.

3d 773 (2002).

       In Shepard, the Supreme Court recently revisited the issues raised in Apprendi. There the

defendant pled guilty to unlawful possession of a firearm by a felon. Under federal law, if the



                                                -25-
1-04-1389

defendant had been convicted of three prior serious drug offenses or violent felonies, he would

be sentenced to an extended term in prison. A prior burglary committed in an enclosed space or

building, or a Ageneric burglary,@ qualified as a violent felony, however, a burglary committed

inside a boat or motor vehicle did not. The Shepard defendant had previously pled guilty four

times to state burglary charges that did not differentiate between Ageneric burglary@ and burglary

committed in a boat or vehicle. The Supreme Court held that, under the federal statute, in order

to determine whether a guilty plea was for Ageneric burglary,@ a sentencing court could look only

to Athe terms of the charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information.@ Shepard, 544 U.S. at __,

161 L. Ed. 2d at 218, 125 S. Ct. at 1263. Writing for a plurality of the Shepard Court, Justice

Souter articulated a constitutional reason for the Court=s holding. Justice Souter wrote:

               A[T]he Sixth and Fourteenth Amendments guarantee a jury standing

       between a defendant and the power of the state, and they guarantee a jury=s

       finding of any disputed fact essential to increase the ceiling of a potential

       sentence. While the disputed fact here can be described as a fact about a prior

       conviction, it is too far removed from the conclusive significance of a prior

       judicial record, and too much like the findings subject to *** Apprendi, to say

       that Almendarez-Torres clearly authorizes a judge to resolve the dispute.@

       Shepard, 544 U.S. at __, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262.

       This court has recently entertained allegations that section 5-5-3(c)(8) of the Unified



                                               -26-
1-04-1389

Code of Corrections(730 ILCS 5/5-5-3(c)(8) (West 2002)), which, like the provision challenged

here, requires a finding of facts concerning the sequence and timing of a defendant=s prior

convictions for a sentencing judge to impose an enhanced sentence, is unconstitutional in light of

Shepard. See People v. Yancy, No. 1-04-2605 (December 29, 2005); People v. Rivera, No. 1-

04-2326 (December 16, 2005). In Yancy and Rivera we found that the Shepard Aholding was

narrowly drawn to apply to scenarios that required findings of fact related to the elements of an

underlying crime that would make such crimes predicate offenses for the purposes of enhancing

a sentence.@ Rivera, slip op. at 9. We further noted that, after Shepard, the recidivism exception

to Apprendi remains viable. Moreover, the Afact of a prior conviction,@ which may be found by a

sentencing court, includes facts intrinsic in the conviction, such as its timing and its sequence in

relation to other convictions. Accordingly, we held that section 5-5-3(c)(8) of the Unified Code

of Corrections was not unconstitutional.

       We adopt the reasoning of Yancy and Rivera and find that section 33B-1 of the Criminal

Code of 1961 is constitutional because the timing and sequence of a defendant=s prior

convictions are inherent in the convictions themselves and need not be submitted to a jury.

       For the above-stated reasons, we affirm the judgment of the trial court.

       Affirmed.

       QUINN, P.J., and CAMPBELL, J., concur.




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