FIFTH DIVISION

										   May 23, 2003

1-00-4196

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the 

                                     )  Circuit Court of

       Plaintiff-Appellee,           )  Cook County.

                                     )

                                     )

              v.                     )                            

                                     )

                                     )

RONALD WEMBLEY,                      )  Honorable

                                     )  Colleen McSweeney-Moore

       Defendant-Appellant.          )  Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following separate jury trials, defendant, Ronald Wembley

(defendant), and Roosevelt Stevens (codefendant), were both

convicted of first degree murder. 720 ILCS 5/9-1(a)(1) (West 1998). 

The trial court sentenced defendant to 45 years in prison.  This

appeal followed.

	On appeal, defendant argues that he was denied a fair trial

because: (1) the trial court questioned his venire en masse and

asked potential jurors to defer their questions; (2) the judge who

conducted the voir dire was different from the judge who presided over the trial; (3) the State made improper closing arguments; and

(4) the trial court erred in considering a void prior conviction in

sentencing defendant.  For the following reasons, we affirm

defendant's conviction and sentence.

BACKGROUND

	Defendant and codefendant were both tried before Judge

McSweeney-Moore for the first degree murder of Tyree Williams. 

There were two juries, one for the defendant and one for the

codefendant.

	On September 7, 2000, Judge Sacks conducted the voir dire for Judge McSweeney-Moore for the impending trial of the defendant.

Judge Sacks instructed the venire members en masse about the 

requirements in Supreme Court Rule 431(b)(177 Ill. 2d R.431(b)) and

People v. Zehr, 103 Ill. 2d 472 (1984), that: (1)the defendant was presumed innocent of the charges against him; (2) the defendant

could only be convicted of the charged crime if the State proved

the defendant guilty beyond a reasonable doubt; (3) the defendant

was not required to present any evidence of his innocence;  and (4)

the defendant's failure to testify could not be held against him. 

During the voir dire, Judge Sacks asked the venire persons: whether or not any person knew the defendant; whether anyone had "any

difficulty following the law about the presumption of innocence and

proof beyond a reasonable doubt"; whether anyone had a problem with

"the State has the burden of proof beyond a reasonable doubt";

whether "anyone in the courtroom serve[d] on a jury within the last

year"; whether anyone had any "physical, emotional infirmities that

would prevent [him/her] from serving on the case."  When a venire

person raised his/her hand in response,  Judge Sacks would tell the

person that he would discuss the question when the venire person was called as a potential juror.  Defense counsel raised no

objections.

	After addressing the entire venire, Judge Sacks questioned

each juror individually.  During individual questioning, Judge

Sacks asked each and every potential juror whether he or she could

be fair and impartial.  Each of the venire members who eventually

was picked as a juror answered affirmatively to the question. 

Judge Sacks also asked every venire member but two who later became

jurors in this case whether they had raised their hands in response

to the earlier questions.  They all answered in the negative. 

However, Judge Sacks did not ask jurors Elizabeth Hall and Sally

Sellers whether they had raised their hands earlier.

	During voir dire, the State attempted to use a peremptory challenge to exclude juror Sally Sellers and defense counsel

objected.  After hearing arguments from both parties, Judge Sacks

denied the State's peremptory challenge.  Sally Sellers served as

a juror in this trial.  After a jury was selected, the jurors

reported to Judge McSweeney-Moore for the trial.

	Steven Williams (Steven), the victim's brother, testified 

that he was serving a 10-year sentence for aggravated vehicular

hijacking and possession of controlled substance with intent to

deliver.  Steven testified that on April 18, 1998, he and Tyree

drove their aunt's red Cavalier to Stateway Gardens to look for

girls.  Stateway Gardens is a public housing complex located at

35th and South State Streets.  The buildings comprising the Stateway Gardens were controlled by the Gangster Disciples (GD's)

or the Black Disciples (BD's), rival street gangs.  After

conversing with two girls at the complex, they left.  As Tyree was

driving down a fire lane, Steven saw Ronald Wembley (defendant)

raise a gun and aim at them.  Seeing this, Steven urged Tyree to

drive into a playground to escape.  Steven testified that when the

car was in the basketball court, the defendant fired a shot which

hit their car.  The bullet penetrated the car's trunk and hit Tyree

in the elbow.  After being shot, Tyree lost control of the car and

crashed into a parked car.  After the crash, Tyree and Steven tried

to escape on foot.  As they were fleeing, about 10 to 15 GD's

caught them and dragged Steven into a building and beat him. 

Steven escaped with minor injuries because Black Disciple members

came to his rescue.  Meanwhile, other GD's caught Tyree and dragged

him to the side of a building to beat him.  After escaping, Steven

went to look for Tyree and found him lying dead beside a building. 

Steven stayed by his brother until the police arrived.  He gave the

police the names of the defendant and another Gangster Disciple

(GD's) who had jumped him and Tyree.

	On April 19, 1998, Steven went to the police station to view

a lineup.  Steven identified Roosevelt Stevens (Stevens) as one of

the GD's who dragged Tyree away.  Steven also identified the

defendant in a photo array as the person who fired the shot into

the car that hit Tyree's elbow.

	Antwone Lee (Lee) testified that he and the defendant were both GD's.  Lee testified that the GD creed was to "aid and assist"

any GD under any circumstances.  If a GD did not follow this rule,

the GD would be "violated."  "Violated" means the GD would be

beaten, punched and kicked by fellow gang members. Lee further

testified that the first rule of the GD was "silence and secrecy,"

which means no outsider is privy to GD business.  The punishments

for the violation of this rule range from a five-minute beating in

the face with the hands tied behind the back to being killed by

other GD's.

	Lee also testified that GD's had to do security duty.  While

on security duty, the GD's would carry handguns.  Lee testified

that he had seen defendant carry a 44 Magnum silver handgun 10 to

15 times while defendant was carrying out security duties.

	Prior to joining the GD's, Lee had been a member of a rival

street gang, the BD's, for three years.  On April 18, 1998, he was

playing basketball with his fellow gang members, Stevens, Arthur

Pinex (Pinex), B.B., Tiny, Mute, and several other GD's.  In fact,

all the people on the basketball court were GD's.  Lee testified

that as he was playing ball, defendant approached them with the 44

Magnum handgun sticking out of the pocket of his jacket.  Defendant

then told them "if we hear shots, don't worry, they [are] coming

from him because he just saw 2 boys from DuSable High School that

were [BD's] that [had] jumped on him."  After informing the other

GD's, defendant then went to the corner of the 3519 building to

wait for the red Cavalier.  Lee further testified that he saw a red Cavalier driving down the fire lane, approaching the 35th Street

exit.  As the car passed the basketball court, the GD's stopped the

game to let the car pass.  Lee testified that he saw defendant firing a "big silver gun" at the red Cavalier.  After the shots,

the red Cavalier lost control and crashed into a parked car.  Lee

testified he saw the victim and Steven jump out of the car and

start running.  At this time, defendant yelled at the GD's on the

basketball court, "folks, catch them bitches."  The GD's are

members of a group of gangs that call themselves "folks."  

	The GD's chased the victim and Steven.  Lee testified that

Stevens caught Steven and along with other GD's dragged Steven

inside a building to beat him.  Lee also testified that Pinex and

several other GD's caught the victim and dragged him to the side of

the building.  Pinex knocked the victim unconscious.  Lee himself

then kicked the victim several times.  After kicking the victim,

Lee walked away.  As Lee was leaving, he saw another GD, Haynes,

run up to the victim with a small black pistol, stand over the

victim and fire five shots into him.

	On May 1, 1998, along with his mother, Lee went to the police

station to confess his participation in the crime.  Lee was

arrested and charged with the murder of the victim.  Later, through

his lawyer, Lee agreed to testify for the State in this trial, and

in return, the State recommended that Lee serve a sentence of 20

years for the murder.

	Chikira Parker, 16, testified that on April 18, 1998, she lived in Stateway Gardens.  Parker testified that she knew Haynes

and Lee and that she was with Samantha Finley on the day of the

shooting.  They were talking to the victim and his brother.  Parker

further testified that she saw the victim drive down the fire lane

and saw defendant stop the victim's car.  She also saw defendant

say something to Steven, heard a gunshot, and saw a gun in the

defendant's hand.  After the gunshot, Parker saw the victim's car

crash into another car.  Parker saw Stevens grab Steven out of the

car.  Stevens then dragged Steven inside a building.  Parker also

testified that as Steven was being dragged away, she saw Lee and

Haynes drag the victim to the side of a building.  Lee then started

beating the victim.  Parker heard two gunshots.  Parker saw

defendant and Haynes standing by the victim and Haynes had a gun in

his hand.

	Parker testified that gang crimes police officer Milton Seaton

tried to talk to her at the homicide scene. Parker refused to talk

to Officer Seaton at that time because she was afraid that the GD's

would retaliate against her. Officer Seaton then asked Parker to

meet him in a nearby school. Once there, Parker told Officer Seaton

what happened.  Parker viewed a photo array in the police station

and identified defendant as the person who shot at the victim's

car.  Parker also identified Haynes as the person who had a gun in

his hand when the victim was shot at the side of the building.  The

day after the shooting, Parker went to the police station to view

a lineup.  She identified Stevens as the person who beat up Steven Williams.  Parker stated that Samantha Finley was with her

throughout the entire incident.

	Samantha Finley testified that she was 17 years old and lived

at 3618 South State Street on the day of this incident.  On the day

of the trial, Finley was still living at the Stateway Gardens. 

Finley testified that she knew Steven and Tyree Williams.  She knew

that Steven was a BD; however, the victim had no gang affiliation. 

She also knew Stevens and Haynes were both members of the GD's. 

Finley testified that she talked to the victim and Steven prior to

the shooting.  After the conversation, she went home and then to a

shopping mall.  Finley testified that when she returned from the

mall, Parker told her what had happened to Tyree and Steven. 

Finley denied witnessing the murder.  Finley testified that

Officers Seaton and Kimble interviewed herself and Parker after the

shooting.  In this interview, Finley repeated Parker's account of

the events to the police officers.

	During trial, the State introduced evidence that Finley had

testified before a Grand Jury several days after the shooting.  In

the Grand Jury proceeding, Finley testified that she saw the victim

drive down the fire lane.  The victim drove off quickly as someone

approached the car.  Meanwhile, she saw Tyrell Foster box the

victim in with a white car.  As the victim was boxed in, Finley saw

the defendant, Bobby Ellis, Lee, Stevens and Haynes approach the

victim's car.  As the GD's approached the victim's car, she saw the

defendant, Lee and Haynes pull the victim out of the car, drag him to the side of a building and beat the victim for about five

minutes.  She also saw Stevens and Ellis grab Steven Williams out

of the car and drag him into a building.  Finley also testified

that she saw Stevens and Lee had guns on them, but she did not see

them shoot their guns.

	Chicago police officer Dennis Stenkus testified he was a

forensic investigator, and on April 18, 1998, he received a call

and went to the homicide scene.  As Officer Stenkus arrived at the

scene to collect evidence, he saw a bullet hole in the trunk of a

red Cavalier.  There were also bullet holes in the backseat and in

the dashboard of the red Cavalier.  Officer Stenkus testified that

all the bullet holes appeared to be along the path of a single

bullet.  However, Officer Stenkus did not recover any spent bullet

or shell casing on the scene.

	Chicago police gang crimes officer Milton Seaton testified

that on April 18, 1998, he was called to a homicide scene at

Stateway Gardens with his partner, Officer Ronald Kimble.  When

Officer Seaton arrived at the scene, the victim was already dead. 

He then tried to collect evidence and interview witnesses.  He saw

Parker and Finley near the crime scene.  Officer Seaton questioned

both Parker and Finley, who indicated that they saw what transpired

but refused to talk to the police on the scene.  Officer Seaton

arranged to meet Parker and Finley behind a nearby school.  In that

meeting, Finley told Officer Seaton that she saw Stevens and Lee

drag Williams out of the red Cavalier.  The victim was dragged out of the car by the defendant and Haynes.

	The next day, Officer Seaton arrested Stevens at the

basketball court located at 3542 South State Street.  On April 26,

1998, Officer Kimble apprehended the defendant at 4844 South State

Street. With permission, Officer Kimble searched defendant's

apartment and recovered a .44-caliber handgun.

	Illinois State Police forensic scientist Karen Heard testified

she received 11 fingerprints taken from the victim's car by Officer

Stenkus for comparison.  Seven of the fingerprints belonged to

Steven Williams.  The other fingerprints did not match with anyone

involved in this murder.  Heard also testified that a fingerprint

recovered from the barrel of the .44 caliber handgun belonged to

the defendant.

	The victim's aunt, LaTonya Dandridge, testified that on the

day of the shooting, the victim was driving her red Cavalier. 

After the police investigation, Dandridge took the car to a garage

for repair.  The mechanic recovered a bullet from the radiator

which Dandridge took to the police.

	Doctor Edmund Donoghue, the chief medical examiner, testified

that he performed the autopsy on the victim.  He found four gunshot

wounds on the body.  The first and second gunshot wounds were

inflicted on the victim's skull; the third bullet wound was on the

back; the fourth wound was on the victim's right elbow, and there

was an exit wound on his right arm.  Dr. Donoghue further testified

that the victim had many other injuries to his body.  However, those injuries were not inflicted by a firearm.  Dr. Donoghue

opined that the victim's death was caused by the multiple gunshot

wounds and the manner of death was homicide.

	Illinois State Police forensic scientist Laura Fleming 

testified as a firearm expert.  Fleming testified that the three

bullets recovered from the victim's body were fired from the same

gun.  However, these three bullets were not fired from the .44-

caliber handgun found in the defendant's apartment.  She also

testified that the bullet recovered from the Cavalier's radiator

was not suitable for microscopic comparison.

	Assistant State's Attorney, Geraldine D'Souza testified that

after an interview, the defendant signed a handwritten statement

about the shooting.  In his statement, defendant related that on

the day in question, he was on the sixth floor of the building

located at 3519 South Federal Avenue when he heard gunshots.  The

defendant took his .44-caliber handgun, checked that it was loaded,

and went downstairs to see whether any GD needed assistance.  There

were three bullets in his gun.  As defendant was outside the

building, he saw two men in a red Cavalier.  The defendant told his

fellow GD's that the BD's were there to cause trouble.  Defendant

said that neither the victim nor Steven Williams threw any gang

signs, nor was the victim armed.  The defendant said that he then

took his gun out, pointed at the red Cavalier, and fired one shot. 

He did not know whether he hit the car.  In the confession, the

defendant stated that as he shot at the red Cavalier, he knew he might hurt or kill one of the persons in the car.  After the shot

was fired, the red Cavalier hit a pothole and swerved into a parked

car.  After the crash, the victim and Steven fled.  Defendant then

saw several GD's who chased, caught and dragged the victim and

Steven to the 3544 South State Street building.  Seeing the two

persons being dragged away, defendant then gave his gun to another

GD and asked him to hide the gun behind the door on the thirteenth 

floor.  The defendant then went to visit a friend.  While there, a

GD came to tell the defendant that one of the men in the red

Cavalier was killed.  Defendant went out to the balcony and saw

someone lying under a white sheet.  The police were on the scene. 

Two days later, the defendant asked the same GD who hid his gun to

retrieve it for him.  Defendant also said that the gun that the

police found in his apartment was the same gun that he used to

shoot at the red Cavalier.  Defendant stated he was not coerced by

the police or the assistant State's Attorney into writing his

confession.

	The People rested.

	Defense counsel called Assistant State's Attorney (ASA), Dan

Groth to testify.  ASA Groth testified that he took a written

statement from Antwone Lee after his arrest.  In Lee's statement,

he did not say that the defendant came to the basketball court and

tell everybody that "if we hear shots, don't worry, they [are]

coming from him because he just saw two boys from DuSable High

School that were BD's that [had] jumped on him."  Instead, Lee said that someone yelled something like "get their ass, grab them." 

However, Lee did not say who said it.

	Defense counsel also called Chicago police detective James

Cassidy.  Detective Cassidy testified that he interviewed Chikira

Parker after the shooting.  Parker told Detective Cassidy that the

defendant fired a shot and that Haynes was the person who shot the

victim as he was lying on the ground.  However, Detective Cassidy

did not recall whether Parker said that the defendant fired a shot

at the car or at the victim.  The police report did not reflect

that Parker saw anyone shoot at the car.

	The defense rested.

	During closing argument, the State argued that Samantha Finley

recanted her grand jury testimony because she was still living in

the Stateway Gardens and she was afraid to testify against any GD 

The State also argued that defendant and his gang had scared off

other potential witnesses from testifying. The State further argued

that defendant was a high-ranking GD member. The defense counsel

objected to this statement, and the trial court sustained the

objection.  Finally, the State urged the jury to return a guilty

verdict to send a message to the street gangs that infested

Stateway Gardens.

	After deliberation, the jury returned a guilty verdict of

first degree murder.  The trial court sentenced defendant to 45

years in prison.

ANALYSIS

VOIR DIRE

	On appeal, defendant argues that he was deprived of a fair and

impartial jury trial because Judge Sacks questioned the venire

members en masse and deferred answering questions from potential

jurors.

	In this case, defendant did not raise an objection when Judge

Sacks asked the prospective jurors who had raised their hands to

defer their questions.  Judge Sacks invariably offered a general

reply like, "If you happen to get in the [jury] box later on***

tell me what you want to talk about and then we'll talk about it

then."  Further, this issue was not included in defendant's post-

trial motion. As such, this issue would normally be deemed waived. 

People v. Enoch, 122 Ill. 2d 176, 186 (1998).  However, defendant urges this court to apply the plain error rule to review this issue

because his right to a fair and impartial trial was violated.

	The plain error rule is an exception to the waiver doctrine

and permits the consideration of errors affecting substantial

rights.  134 Ill. 2d R. 615(a); People v. McCormick, 328 Ill. App. 3d 378, 381 (2002).  The purpose of the plain error rule is to

afford certain protections to the accused by correcting serious

injustices and to preserve the integrity and reputation of the

judicial process.  People v. Young, 128 Ill. 2d 1, 46 (1989).  However, the plain error rule may only be invoked in criminal cases

in two limited circumstances. People v. Williams, 333 Ill. App. 3d 204, 209 (2002).  First, where the evidence is closely balanced, a

reviewing court may consider a claimed error that was not properly

preserved, so as to preclude argument that an innocent person may

have been wrongly convicted.  People v. Vargas, 174 Ill. 2d 355, 363 (1996).  Second, a reviewing court may invoke the plain error

rule to review waived errors that are of such magnitude that there

is a substantial risk that the accused was denied a fair and

impartial trial, and remedying the error is necessary to preserve

the integrity of the judicial process.  See Vargas, 174 Ill. 2d at 363.

	In this case, defendant confessed that he used a .44-caliber

handgun to fire a shot at the red Cavalier.  Steven Williams

testified that the bullet passed through the car's trunk and struck

the victim's elbow.  After being shot, the victim crashed the car

into another parked car.  The victim and Steven then tried to

escape on foot.  They were caught by the GD's.  The victim was then

dragged to the side of a building and beaten by defendant's fellow

gang members.  After the beating, one of defendant's fellow gang

members shot and killed the victim.  After defendant's arrest, the

police found the .44-caliber handgun in defendant's home.  In his

written confession, defendant admitted that the handgun that the

police found in his apartment was the same gun that he used to

shoot at the red Cavalier. The evidence adduced at trial was overwhelmingly against defendant.  Thus, the first prong of the

plain error rule is not applicable to this case.

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

	In this case, Judge Sacks covered the required subjects

mandated in People v. Zehr, 103 Ill. 2d 472 (1984), and Illinois Supreme Court Rule 431 (177 Ill. 2d R. 431).  At the commencement

of voir dire, Judge Sacks addressed all prospective jurors as a group.  The judge asked the group whether they all understood and

accepted that the defendant was presumed innocent of the charges

against him, that the State had to prove the defendant guilty

beyond a reasonable doubt, that the defendant was not required to

offer any evidence on his own behalf and the defendant's failure to

testify could not be held against him.  As the State points out,

the trial court may ask these questions "individually or in a

group," "[i]f requested by the defendant." 177 Ill. 2d R. 431 (b). 

Here, the record does not reflect that the defendant requested that

these questions be asked.  The defendant on appeal replies that his

claim of error rests on the last sentence of Supreme Court Rule

431(b): "[t]he court's method of inquiry shall provide each juror

an opportunity to respond to specific questions concerning the

principles set out in this section." 177 Ill. 2d R. 431 (b).

	After asking the jurors as a group whether they accepted and

understood the above principles, Judge Sacks questioned each venire

member individually whether he or she could be fair and impartial. 

All those venire persons who eventually were selected to serve on

the jury answered affirmatively.  With the exception of two seated jurors, Elizabeth Hall and Sally Sellers, Judge Sacks asked every

juror individually whether they had raised their hands in response

to the earlier announced principles.  All jurors answered "no" to

this question.

	The record indicates that the defendant wanted Sally Sellers

on the jury.  When the State used a peremptory challenge to strike

Sellers, the defendant objected to the State's motion.  After

hearing arguments from both sides, Judge Sacks overruled the

State's challenge and Sellers was kept on the jury.  Further,

defense counsel asked juror Hall twice whether she could be fair,

and she offered no reason that she could not be fair at the trial. 

	Moreover, it is impossible for this court to review any

potential questions that the prospective jurors might have had as

they raised their hands in response to Judge Sacks's en masse

questions, because the defendant did not identify the names of

those prospective jurors for the record.  "It is well settled that

an appellant bears the burden of preserving a sufficient record for review and any doubts arising from an incomplete record will be

resolved against the appellant."  People v. Ranstrom, 304 Ill. App. 2d 664, 672 (1999).  See also People v. Smith, 106 Ill. 2d 327, 334-35 (1985).  This court has held that the defendant is required

to object to any errors during jury selection.  People v. Robinson, 299 Ill. App. 3d 426, 436-37 (1998). "Otherwise, counsel, by not

giving the court the opportunity to prevent or correct errors at

trial, will gain the advantage of obtaining a reversal through  failure to act, either intentionally or inadvertently." Robinson, 299 Ill. App. 3d at 437 (1998).  After a careful review of the

record, any errors in conducting the voir dire were not of such magnitude that there was a substantial risk that defendant was

denied a fair and impartial trial.  Consequently, we will not

invoke the plain error rule.  

SUBSTITUTION OF JUDGE

	Defendant next asserts that he was deprived of a fair trial

because Judge McSweeney-Moore asked Judge Sacks to preside over the

voir dire in this defendant's case while she voir dired the co- defendant's venire.

	As stated earlier, a defendant must object to alleged errors

at trial and include the objection in a posttrial motion in order

to preserve an issue for appellate review.  Enoch, 122 Ill. 2d at 186.  The record indicates that defendant did not object to Judge

Sacks's presiding over the jury selection; nor did the defendant

include this issue in his posttrial motion.  Thus, this issue is

waived.

	Even assuming arguendo that the defendant had preserved this issue for appeal, the fact that a different judge conducted the

voir dire did not per se deprive defendant of a fair trial.  "As a general rule, a judge cannot finish the performance of a duty

already entered upon by his [or her] predecessor where that duty

involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the

predecessor."  People v. Groves, 287 Ill. App. 3d 84, 97 (1997).  However, there is "no bright-line rule that substitution of a judge

during any stage of a trial, including voir dire, is per se reversible error."  Groves, 287 Ill. App. 3d at 98.  This is because "the examination of jurors under voir dire does not elicit any information that can be used in the trial of the case.  Such

examination is merely for the purpose of securing a competent,

fair, and unprejudiced jury.  That function can be performed

properly by any judge."  Groves, 287 Ill. App. 3d at 98.

	On appeal, defendant argues that Groves was wrongly decided, urging us instead to follow Meredeth v. People, 84 Ill. 479 (1877), Durden v. People, 192 Ill. 493 (1901), People v. Vargas, 174 Ill. 2d 355 (1996), and People ex rel. Rice v. Cunningham, 61 Ill. 2d 353 (1975), which he argues support his position.

	In Meredeth, in a murder trial, the trial judge was absent from the courtroom for almost two days during arguments.  During

the judge's absence, the trial was presided over by two members of

the bar and order was not maintained in the courtroom.  Meredeth, 84 Ill at 482.  The supreme court reversed, holding that "the

absence of the judge from the courtroom, engaged in other judicial

labors, for a part of two days, in a trial of this magnitude, can

not be justified on any principle or for any cause."  Meredeth, 84 Ill. at 482.

	In Durden, the trial judge who presided over the jury trial heard a portion of defense counsel's closing argument and then

absented himself from the proceedings.  In addition, without notice

to the parties, another judge who had no knowledge of the on-going

case took his place on the bench and presided over the rest of the

trial, ruled on objections during closing arguments and ruled upon

the jury instructions.  The first judge did not return until the

hearing on the motion for a new trial.  Durden, 192 Ill. at 494-97.  In reversing the ruling of the trial court, the Illinois Supreme

Court held that circuit judges may hold court for each other and

perform each other's duties where they find it necessary or

convenient; however, the substitution of judges in a single trial

is inappropriate unless knowledge of the case is wholly irrelevant

to the performance of the judicial task.  Durden, 192 Ill. at 498- 99. 

	In Vargas, the trial judge left the courtroom during a jury trial to take a phone call.  While the judge was absent, the

defense counsel continued his cross-examination of a State witness. 

The Illinois Supreme Court held that "total judicial absence for a

portion of a felony trial [] is per se reversible because such error is inherently prejudicial, not only to defendant's right to

a fair trial but also to the integrity of the judicial process."  Vargas, 174 Ill. 2d at 366.

	In Cunningham, the Illinois Supreme Court addressed the three- judge panel formerly required by statute in death penalty cases. 

Consequently, Cunningham's ruling does not apply to this case.  The facts in Meredeth, Durden, and Vargas make those cases wholly inapposite to the case sub judice.

	In this case, Judge Sacks presided over the jury selection. 

Judge Sacks informed the entire venire that he was selecting the

jury for Judge McSweeney-Moore and she would preside over the

trial.  After selecting and swearing in the jury, Judge Sacks 

transferred the jury to Judge McSweeney-Moore.  Judge Sacks did not

participate in any other aspect of this trial.  The record reflects

that Judge McSweeney-Moore ruled on the pretrial motions, heard the

opening statements and the witnesses' testimony, ruled on motions,

instructed the jury on the law, heard the closing arguments, took

the verdict, ruled on posttrial motions and imposed the sentence. 

Judge McSweeney-Moore presided over the entire trial herself. 

Further, Judge Sacks's involvement in the case did not require any

knowledge of the case.

	We find the well-reasoned holding in People v. Groves, 287 Ill. App. 3d 84 (1997), to be controlling.  In fact, defendant

presents a weaker case for reversal than did the defendant in

Groves.  There, the defendant objected to having a judge other than the trial judge conduct the voir dire.  Here, no objection was ever raised.  As the Illinois Supreme Court has stated, "a trial court

abuses its discretion in the conduct of voir dire only if a review of the record reveals that the trial court's conduct thwarted the

selection of an impartial jury." People v. Metcalfe, 202 Ill. 2d 544, 559 (2002). There is absolutely no evidence in this record supporting such a conclusion.  Accordingly, the substitution of a

different judge for voir dire did not violate defendant's right to a fair trial.

	Of course, a better practice would be for the trial court to

ask the parties on the record whether they agreed to using a

different judge to preside over voir dire.  Employing this procedure would only take a few seconds and it would save the

parties on appeal, as well as this court, many hours of effort

currently spent on resolving what should be a simple question.

CLOSING ARGUMENT

	On appeal, defendant asserts that he was denied a fair trial

based upon the State's closing and rebuttal arguments where the

prosecutor (1) improperly bolstered their witnesses' credibility;

(2) used argument unsupported by evidence that defendant and his

gang scared off witnesses; (3) inflamed the jury by saying that

defendant was a high-ranking gang member; and (4) implored the jury

to use this case to send a message to street gangs.

	In reviewing these allegations of error, we first note that 

defendant only objected to the prosecutor's comment that defendant

was a high-ranking gang member.  This objection was sustained.  A

prosecutor is allowed a great deal of latitude in making a closing

argument.  People v. Cisewski, 118 Ill. 2d 163, 175 (1987).  The trial court's determination of the propriety of the argument will

generally be followed absent a clear abuse of discretion.  People v. Strong, 274 Ill. App. 3d 130, 139 (1995).  To constitute reversible error, the complained-of remarks must have resulted in

substantial prejudice to the accused, such that absent those

remarks, the verdict would have been different.  People v. Heard, 187 Ill. 2d 36, 73 (1999).   

	After reviewing the record in this case, we cannot say that

had the complained-of statements not been made, the outcome of

defendant's trial would have been different.  Defendant was

convicted of first degree murder, and the evidence in support of

the conviction was overwhelming.  The defendant confessed that he

used his 44 Magnum handgun to fire a shot at the victim's car.  The

bullet went through the trunk of the car and hit the victim's

elbow, which caused the victim to lose control of the car and

crash.  The victim and his brother then tried to flee.  The victim

was chased, caught, dragged to the side of a building and beaten by

the defendant's fellow gang members.  Finally, one of the gang

members shot and killed the victim.  After arresting defendant, the

police recovered the 44 Magnum handgun defendant said he used in

defendant's home.  Based on this evidence, we find that the outcome

of the case would not have been different even without the

complained-of comments.  Furthermore, we find that any prejudice

stemming from the allegedly improper argument wasto be minimal because

the jury was instructed that opening and closing arguments are not

evidence.  See People v. Simmons, 331 Ill. App. 3d 416, 421 (2002); People v. Reeves, 228 Ill. App. 3d 788, 800799 (1992).  Thus, defendant was not deprived of a fair trial.

EXCESSIVE SENTENCE

	Finally, defendant asserts that the trial court erred in

considering a void prior conviction in sentencing defendant.

	A reviewing court will not disturb a sentence unless the trial

court has abused its discretion.  People v. Streit, 142 Ill. 2d 13, 19 (1991); People v. Shields, 298 Ill. App. 3d 943, 951 (1998).  A sentence within the statutory limits will not be overturned on

appeal unless it is manifestly disproportionate to the nature of

the offense.  People v. Luckett, 295 Ill. App. 3d 342, 349 (1998).  A sentence is presumptively correct, and only where such

presumption has been rebutted by an affirmative showing of error

will a reviewing court find that the trial court abused its

discretion.  People v. Luna, 234 Ill. App. 3d 544, 550-51 (1992).

	In Illinois, the sentence for a first degree murder conviction

is 20 to 60 years' imprisonment.  See 730 ILCS 5/5-8-1 (West 1998). 

Defendant's sentence of 45 years' imprisonment was within the

legislative limitations.  In sentencing defendant, the trial court

stated "... the defendant [did] not have significant prior criminal

history."  The trial court then noted that "[h]e was convicted by

a jury of the first degree murder [of the victim]."  The court then

sentenced defendant to 45 years in prison.  The record indicates

that the weight that the trial court put upon the defendant's prior

conviction was so insignificant that it did not lead to a greater sentence.  Further, in the sentencing hearing, the State did not

use defendant's prior conviction as a factor in aggravation.  Based

on the record, we find the trial court did not abuse its discretion

in sentencing defendant.  As such, the judgment of the trial court

is affirmed.

     Accordingly, the judgment of the trial court is affirmed.

     Affirmed.

	QCAMPBELL, P.J., and HARTIGAN, J., Cconcur.