People v. O'QUINN , 339 Ill. App. 3d 347 ( 2003 )

JUSTICE DONOVAN

delivered the opinion of the court:

Following a jury trial in Madison County, the defendant, Chester O’Quinn (defendant), was found guilty of first-degree murder and sentenced to an extended term of 70 years’ imprisonment. On appeal to this court, defendant argues that (1) he was denied the effective assistance of counsel and a speedy trial when defense counsel continued his trial for more than 3V2 years, (2) he was denied his right to a fair trial when the circuit court removed him from the courtroom, (3) the use of a special interrogatory to determine the victim’s age constituted a violation of the constitutional prohibition against ex post facto laws, (4) he was denied a fair trial when he repeatedly complained that defense counsel was not providing adequate representation and the court did not make a sufficient inquiry into defendant’s claims or appoint new counsel to represent him at the hearing on the posttrial motion, and (5) he was denied the effective assistance of counsel when counsel filed a pro forma motion to reduce sentence on the same day that the sentence was imposed. For the following reasons, we affirm.

BACKGROUND

On October 31, 1997, the State filed an information charging defendant with one count of first-degree murder for the death of 13-month-old Emmarld Bradley. Defendant filed a demand for a speedy trial on November 5, 1997, and on November 13, 1997, he was indicted for three counts of first-degree murder. Over the next 31/2 years, defendant’s trial was continued as a result of defense counsel’s motions to continue. Defendant’s case went to trial on April 2, 2001. The jury returned its guilty verdict on April 6, 2001, after deliberating for less than two hours.

During the course of the trial, the State presented a detailed circumstantial case leading up to Emmarld’s death on October 28, 1997. Emmarld was born on September 19, 1996. Her mother was Twuna Jackson and her father was Larry Bradley. After Emmarld’s birth, Twuna and Larry separated. Twuna met defendant in the summer of 1997. In August of 1997, Twuna and defendant moved into an apartment in Wood River. Residing in the apartment with Twuna and defendant were Twuna’s two children, Kiera, 3 years old, and Emmarld, 11 months old, and defendant’s son Adontay, 7 years old.

Emmarld was a healthy, thriving child prior to August of 1997, when she, her sister, and her mother moved in with defendant. Dr. Alison Nash was Emmarld’s pediatrician. Emmarld’s first office visit, or checkup, took place on October 18, 1996, and her last was on July 29, 1997. During this period, Emmarld was seen by the doctor for each of her “well-baby” checkups, which took place two months, four months, six months, and nine months after her birth, and for several interim visits for an ear infection and diaper rash. On her last visit the doctor did not find any problems other than a rash that she believed was related to the soap used in Emmarld’s bubble bath. Emmarld’s body did not show any indication of marks, bruises, or burns.

Roxanne Harvey, Emmarld’s maternal grandmother, lives in Texas, but she returned to Illinois to care for Emmarld and her sister during the first week of August 1997, to allow Twuna to move into the apartment in Wood River with defendant. Ms. Harvey and the children stayed with her mother in Florissant, Missouri. Ms. Harvey described Emmarld as smiling and giggling a lot and wanting to be everywhere that her big sister wanted to be. Emmarld did not have any marks, bruises, or burns. Ms. Harvey returned from Texas to visit her family during the weekend of October 24 to 26. Emmarld was thinner. She was solemn. Her eyes were dark and sunken. She had a couple of bruises on her cheeks and a faint bruise on her forehead.

On October 27, Twuna was scheduled to work the 5:30 p.m.-to-ll p.m. shift at her job in St. Charles, Missouri. She left for work at 4 p.m. Prior to leaving for work, she checked on her baby daughter. Emmarld was lying in her bed. She opened her eyes when her mother kissed her and then closed them and went back to sleep. Emmarld’s forehead was not bruised and she had no marks on her neck. Twuna denied ever physically abusing her daughter.

At 4:59 p.m. on October 27, the Wood River police department received a 9-1-1 call regarding a child that was not breathing. Officer Otis Steward arrived at the front door of defendant’s apartment at 5 p.m. Emmarld was lying on her back on a bed. She was wearing a diaper. Her breathing was labored, she had a large bruise on her forehead, and a purplish knot was forming on her forehead. Officer Steward carried Emmarld to the waiting ambulance and rode with her to the Wood River Township Hospital, which was only a short distance away.

Officer Steward spoke with defendant at the hospital. Defendant told him that he woke up Emmarld. He held her hand and walked with her into the kitchen, where she fell and lay on the floor. He went into the other room to get Adontay and Hiera for supper. When he walked back into the kitchen, Emmarld was still lying facedown on the kitchen floor, and he thought she was sleeping. When he picked her up, he noticed she was not breathing. He tried to “give her breaths” and then told Adontay to call 9-1-1.

Emmarld arrived at Wood River Township Hospital at 5:10 p.m. She was totally unresponsive to touch, pain, and light. The emergency room physician attempted to stabilize her and made arrangements to have her transferred to a children’s hospital in St. Louis. At 6:46 p.m. Emmarld was taken by helicopter to Cardinal Glennon Children’s Hospital in St. Louis (hereinafter referred to as Cardinal Glennon).

Dr. Anthony Scalzo treated Emmarld at Cardinal Glennon. Dr. Scalzo is board certified in pediatrics and in pediatric emergency medicine. He observed extensive bruising on her forehead in the shape of two overlapping rough circles. A CAT scan showed multiple pockets of bleeding in the front part of the brain, which was anatomically close to forehead injuries, and bleeding in the center of the brain, which was diagnosed as a subarachnoid hemorrhage. The neurological exam indicated that Emmarld was brain dead. She did not have any reaction to light in her eyes. She had no gag reflex and she did not respond to any stimulus. Further tests indicated she had no flow of blood within the brain, which confirmed the brain death diagnosis. Dr. Scalzo testified that the condition was caused by multiple nonaccidental shearing forces consistent with shaken infant syndrome. He believed that the bruising to the forehead and the hemorrhages on the brain were fresh, and he stated, “A child with this extent of injury would go unconscious probably instantaneously or [within] minutes at the very most.”

Dr. Bradley Davitt, a pediatric opthamologist, examined Emmarld on October 28 at 8:35 a.m. He found that Emmarld’s retina in each eye was detached from the eye wall and that there were multiple layers of hemorrhage in each eye. He diagnosed the cause as nonaccidental trauma, or abuse.

Emmarld was pronounced dead at approximately 11:30 a.m. on October 28. At 12 p.m. she was examined by Dr. James Monteleone. Dr. Monteleone was a professor of pediatrics and gynecology at St. Louis University School of Medicine and the director of the division of child protection at Cardinal Glennon. After an examination of Emmarld, the medical records, and the subsequent autopsy report, he determined that the injury that caused her death was severe child abuse consistent with shaken baby syndrome with impact. He testified that she would have been incapacitated within minutes of her injury.

In addition, Dr. Monteleone testified to his opinion that the linear mark across Emmarld’s neck was consistent with pulling and twisting the neck of a child’s clothing and that the marks on her left arm appeared to be a pattern of a healing burn that had been inflicted intentionally. Finally, the doctor opined that bruising on each side of a child’s mouth or on the cheek is consistent with a person grabbing the child by the mouth and squeezing. This testimony is consistent with the testimony of Roxanne Harvey regarding the bruising she had seen on both sides of Emmarld’s cheeks the weekend before Emmarld’s death.

Dr. Raj Nanduri, who is board certified in anatomic, clinical, and forensic pathology, conducted the autopsy on Emmarld. It was her opinion that Emmarld died from a closed head injury caused by vigorous shaking of the head, which is clinically referred to as shaken baby syndrome. This was consistent with the retinal hemorrhages, which she observed grossly and through a microscopic examination.

The defense did not present any evidence.

ANALYSIS

Speedy Trial Issues

Defendant first argues on appeal that he was denied his constitutional rights to the effective assistance of counsel and to a speedy trial when defense counsel continued his trial for more than 31/2 years without defendant’s authorization and over defendant’s express objection. Both the United States Constitution and the Illinois Constitution guarantee to anyone accused of a crime the right to a speedy trial. U.S. Const., amend. VI (“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”); Ill. Const. 1970, art. I, § 8 (“[i]n criminal prosecutions, the accused shall have the right *** to have a speedy public trial by an impartial jury”). The sixth amendment right to a speedy trial is fundamental and, like other sixth amendment rights, is made applicable to the states by the due process clause of the fourteenth amendment. See Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967). An analysis of a defendant’s claim regarding a speedy trial violation is conducted under the four-part balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), in which the conduct of both the prosecution and the accused are considered and weighed. In particular, we examine (1) the length of the pretrial delay and whether that delay was uncommonly long, (2) the reasons for the delay and to which party the delay is more attributable, (3) whether the defendant asserted his right to a speedy trial in due course, and (4) the prejudice, if any, suffered by the defendant as a result of the delay. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17, 92 S. Ct. at 2192. Not one of the foregoing elements is dispositive. Instead, each factor must be weighed and considered in light of the circumstances of the case as reflected by an examination of the entire record. People v. Rievia, 307 Ill. App. 3d 846, 853, 719 N.E.2d 1077, 1082 (1999). The ultimate determination of whether a defendant’s constitutional speedy trial right has been violated is subject to de novo review. People v. Crane, 195 Ill. 2d 42, 52, 743 N.E.2d 555, 562 (2001).

At issue here is a 3V2-year period from October 31, 1997, the date the State filed an information charging defendant with first-degree murder, to April 2, 2001, the start of the trial. From the record, it is noted that defense counsel requested multiple continuances over the SVs-year period. The circuit court approved a minimum of 28 separate orders of continuance. Generally, courts recognize that a delay of one year is “presumptively prejudicial.” Crane, 195 Ill. 2d at 52-53, 743 N.E.2d at 562; see People v. Williams, 299 Ill. App. 3d 143, 148, 700 N.E.2d 753, 756 (1998); People v. Lock, 266 Ill. App. 3d 185, 191, 640 N.E.2d 334, 338 (1994). This does not mean that defendant was in fact prejudiced, however. Rather, a “presumptively prejudicial” time period will only trigger the Barker enquiry. Crane, 195 Ill. 2d at 53, 743 N.E.2d at 562-63. Finding that the delay of more than 3½ years before the commencement of the trial was presumptively prejudicial to defendant, we therefore will assess the remaining factors of Barker to determine whether defendant was denied his constitutional right to a speedy trial.

Turning to the second prong, we note that the burden to provide a justifiable reason for the delay rests with the State, and the defendant need only show that the delay was not attributable to his actions. People v. Prince, 242 Ill. App. 3d 1003, 1009, 611 N.E.2d 105, 109 (1993); People v. Belcher, 186 Ill. App. 3d 202, 542 N.E.2d 419 (1989). Unlike other cases where some of the delays are attributable to the State, defense counsel here requested every continuance from the first one on December 8, 1997, to the last one on March 12, 2001. We can find no basis in the record for why so many continuances were requested. We note, however, as did the Court in Barker:

“Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to he free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” Barker, 407 U.S. at 521, 33 L. Ed. 2d at 111-12, 92 S. Ct. at 2187.

Defense counsel was able to extract from the State a plea negotiation that in hindsight was quite favorable to the defendant. On the morning of the trial, defense counsel explained the State’s offer as follows to the court in defendant’s presence:

“MR. HAWKINS [defense counsel]: Yes, Your Honor. At this time we would make a record in this case that the State has made an offer in this case of a plea to the charge of second degree[-]murder, ten years in the Department of Corrections, to reduce the charge from that, with credit for time served.

That the defendant has been advised by *** myself, Mr. Rekowski[,] and Mr. Simmons[ ] that the likelihood of success in this case is not very good, and he should take the offer. And it is his desire at this time to reject the offer and proceed to trial. And I would just like to put that on the record.”

Why the State chose to make the offer is unknown. It may well have been that the State believed that the delay in bringing defendant to trial negatively affected its chances of a successful prosecution.

Additionally, a defendant is bound by his attorney’s actions. In People v. Bowman, 138 Ill. 2d 131, 561 N.E.2d 633 (1990), the court stated:

“The general rule in Illinois is that a client is bound by the acts or omissions of his lawyer-agent. While not an ironclad rule, it is necessary in order for a representative system of litigation to function. [Citation.] In criminal proceedings, an attorney is authorized to act for his client and determine for him procedural matters and decisions involving trial strategy and tactics. [Citations.] Thus, the affirmative acts of a defendant’s counsel cannot be separated from the defendant’s own acts.” Bowman, 138 Ill. 2d at 141, 561 N.E.2d at 638.

See People v. Hall, 194 Ill. 2d 305, 328, 743 N.E.2d 521, 535 (2000).

The record clearly establishes that defense counsel caused all the pretrial delay, and therefore, the delay must be attributed to defendant. Consequently, defendant failed to meet this prong of Barker.

Next, defendant clearly asserted his right to a speedy trial. As evidenced by the record, defendant, through counsel, first made a speedy trial request on November 5, 1997. Then, on March 18, 1998, defendant sent a letter to the court requesting the court to drop the charges, arguing that he had not authorized defense counsel to continue his case and that any continuances obtained by defense counsel were obtained without his permission. Almost 2Va years later, on July 12, 2000, defendant sent the court a pro se motion to dismiss. The motion argued that his attorney was ineffective and that his case should be dismissed for several reasons, including the fact that defense counsel had continued the case without defendant’s consent, thereby violating his right to a speedy trial.

Finally, defendant cannot meet the last prong of Barker — that prejudice resulted. In assessing prejudice to the accused, the court must consider the interests sought to be protected by the speedy trial right: (1) the prevention of oppressive pretrial incarceration, (2) the minimization of the anxiety and concern of the accused, and (3) the limitation of the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193. Out of these three interests, the Court in Barker noted that the third one is the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.

Although it can be argued that defendant spent a lengthy amount of time in prison, resulting in unnecessary anxiety and concern, defendant cannot show that this length of time caused his defense to be impaired. Defendant claims that prejudice is demonstrated by the fact that one of the witnesses he wanted to call, his estranged wife, had died by the time he was finally brought to trial. We note, based on the record before us, that defense counsel had investigated the possibility of calling the wife and had decided that her testimony would not have been useful even if she had been an available witness and instead could have served to hurt defendant’s case. This point is further evidenced by defense counsel’s filing of a motion in limine to exclude evidence that defendant had been investigated for abusing his wife’s children. Based on this filing, defense counsel’s statements, and the fact that he was living with another woman when the murder occurred, we conclude that defendant was not prejudiced by being unable to call his estranged wife as a witness.

Defendant also attempts to argue that because counsel failed to subpoena medical and telephone records, this evidence may have been lost or destroyed by the time of the trial. Defendant offers no explanation of how this would have helped his defense and is therefore unable to make the showing of prejudice required by this prong of Barker.

After an examination of the record and after a consideration of each factor identified in Barker, we find that defendant was not denied his constitutional right to a speedy trial. By this finding we do not wish to promote the type of delay that occurred in this case, but we do not believe, under the circumstances of this case, that the delay reaches the level of a constitutional violation which would result in the “severe remedy of dismissal of the indictment when the right has been deprived.” Barker, 407 U.S. at 522, 33 L. Ed. 2d at 112, 92 S. Ct. at 2188.

The detailed chronology of the continuances in this case contained in the dissent does not change the fact that the presentation of the defense was not prejudiced by the delay caused by the defense. Neither the majority nor the dissent can base its decision on only one of the Barker factors. This is not to say that more emphasis cannot be placed on one factor over the other based on the circumstances of the case and the remedy available to the trial court. The remedy in this case cannot be the suppression of evidence or the granting of a new trial. Rather, it can only be the dismissal of the murder charge, which is not required in this case. See Barker, 407 U.S. at 522, 33 L. Ed. 2d at 112, 92 S. Ct. at 2188.

Defendant also asserts he was denied the effective assistance of trial counsel based on defense counsel’s multitude of requests for continuances. To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under the first prong of this test, the defendant must demonstrate that his counsel’s performance was deficient. In other words, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. However, even if it is established that counsel’s performance was professionally unreasonable, this, by itself, is insufficient to warrant a reversal. The defendant must also meet the second prong of the Strickland test — that counsel’s deficiencies resulted in prejudice. The Supreme Court explained what a defendant must show in order to establish prejudice: “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendant must satisfy both prongs of the Strickland test in order to succeed on a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct. at 2069; People v. Harris, 206 Ill. 2d 1, 15 (2002). We previously found that the delay occasioned by defense counsel did not sufficiently prejudice defendant to deny him his right to a constitutional speedy trial. Likewise, we find that the delay in bringing defendant to trial did not affect or undermine the confidence in the eventual outcome of the case. As a result, we also find that defendant was not denied the effective assistance of counsel stemming from the delay of the trial.

Right to Be Present at Trial

Defendant next argues on appeal that he was denied his right to a fair trial when the judge removed him from the courtroom. Defendant believes that the judge should have admonished him first that he would be removed if he did not behave and that the judge should also have offered him the opportunity to return to the courtroom if his behavior improved. The right to be present is not an express right under the United States Constitution, but rather, it is implied, arising from the due process clause of the fourteenth amendment. U.S. Const., amend. Xiy § 1. Article I, section 8, of the Illinois Constitution grants criminal defendants the express right “to appear and defend in person and by counsel.” Ill. Const. 1970, art. I, § 8. Accordingly, both the federal constitution and our state constitution afford criminal defendants the general right to be present not only at the trial but at all critical stages of the proceedings. Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 356, 90 S. Ct. 1057, 1058 (1970); People v. Bull, 185 Ill. 2d 179, 201, 705 N.E.2d 824, 835 (1998). A defendant’s due process right of presence under the fourteenth amendment is violated, however, only in the limited circumstance when his absence results in the denial of a fair and just trial. People v. Bean, 137 Ill. 2d 65, 83, 560 N.E.2d 258, 266 (1990); see also People v. Lofton, 194 Ill. 2d 40, 67, 740 N.E.2d 782, 797 (2000); Bull, 185 Ill. 2d at 201, 705 N.E.2d at 835. “The question is not whether ‘but for’ the outcome of the proceeding the defendant would have avoided conviction but whether the defendant’s presence at the proceeding would have contributed to his opportunity to defend himself against the charges.” Lofton, 194 Ill. 2d at 67, 740 N.E.2d at 797-98. The standard of review to determine whether a defendant’s constitutional right to be present at the trial has been denied is de novo. People v. Leeper, 317 Ill. App. 3d 475, 480, 740 N.E.2d 32, 37 (2000).

In this case, the record reflects that as the jury was returning to the courtroom for closing arguments, defendant leaned over the railing and spit water, hitting some of the jurors and spectators in the gallery. Defendant was restrained immediately by authorities in the courtroom. Only three jurors were present during this incident, and they were immediately escorted out of the courtroom. Although the trial judge was not in the courtroom at the time, information regarding the disturbance was transmitted to the judge by the State’s Attorney in defense counsel’s presence without objection. The trial court responded by stating:

“Mr. O’Quinn, it is apparent that you cannot behave yourself any more in this courtroom. It is the Court [sic] order that you go back[ — ]that you be transported back to the Madison County Jail. You will not be here for closing arguments of counsel because of the fact that you attacked some jurors coming into the courtroom. The Court is going to have to question those jurors, but you will not be present during closing argument. Take him back.”

Defendant was not denied a fair and just trial. He was present during voir dire and at all times during the presentation of evidence. He was not removed from the courtroom until just prior to closing arguments. Additionally, the record reflects that defense counsel adequately represented defendant’s interests during closing arguments. Defendant has presented no evidence showing that he was denied his right to be present during the trial resulting in an unfair trial.

Special Interrogatory

Defendant next argues that the use of a special interrogatory to determine the victim’s age deprived him of due process and violated the doctrines of separation of powers and ex post facto application of laws. The dissent contends that there was no valid legislative authority to impose an extended-term sentence at the time defendant committed the acts which composed his criminal behavior and that the legislation passed to address the Apprendi issue (Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)) could not be retroactively applied without violating the constitution.

The elements of first-degree murder do not include age as a factor. 720 ILCS 5/9—1(a)(1) (West 1996). Age, however, was and is a factor in aggravation to be determined by the court at sentencing as a reason to impose an extended-term sentence. 730 ILCS 5/5—5—3.2(b)(4)(i) (West 1996). At the trial, the jury heard testimony numerous times that Emmarld was 13 months old at the time of her death. In order to comply with the requirement of finding the aggravating factor of Emmarld being under 12 years of age beyond a reasonable doubt, the State tendered a special interrogatory. Specifically, it stated, in part: “If you have found the defendant guilty of first-degree murder[,] do you also find that the victim, Emmarld Jade Jackson Bradley[,] was under the age of twelve at the time he committed the offense?” Each juror answered this question in the affirmative. Based on this finding, the court sentenced defendant to an extended term of 70 years’ imprisonment.

This court must first determine whether section 5—5—3.2(b)(4)(i) of the Unified Code of Corrections (730 ILCS 5/5—5—3.2(b)(4)(i) (West 1996)), as it existed on the date of the crime, was unconstitutional, based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the statute fails to require proof of the victim’s age beyond a reasonable doubt. The answer is that the statute was not and is not unconstitutional if the finder of fact, in this case the jury, is required to determine the aggravating factor beyond a reasonable doubt. This conclusion is based on People v. Thurow, 203 Ill. 2d 352, 365-66 (2003).

The defendant in Thurow was charged, under sections 9—3(a) and (f) of the Criminal Code of 1961 (720 ILCS 5/9—3(a), (f) (West 1998)), with involuntary manslaughter of a family or household member. Thu-row was found guilty after the jury was instructed on the elements of involuntary manslaughter. The sentencing judge determined that Thu-row was eligible for an enhanced sentence because the victim was a member of Thurow’s household (720 ILCS 5/9—3(f) (West 1998)). Alternatively, the sentencing judge determined that Thurow was eligible for an extended-term sentence based upon the young age of the victim (730 ILCS 5/5v5—3.2(b)(4)(i) (West 1998)). As a result, the trial court sentenced Thurow to 8 years in prison, a sentence within both the 3- to 14-year range for an enhanced sentence (720 ILCS 5/9—3(f) (West 1998)) and the 5- to 10-year range for an extended-term sentence (730 ILCS 5/5—8—2(a)(5) (West 1998)). The appellate court vacated the sentence, on the basis that it violated Apprendi, and remanded for a new sentence not to exceed the five-year statutory maximum for the Class 3 felony of simple involuntary manslaughter. The Illinois Supreme Court affirmed the appellate court’s judgment that Thurow’s enhanced sentence was imposed in error, reversed the appellate court’s order vacating the sentence and remanding for a new sentencing hearing, and affirmed the eight-year sentence imposed by the trial court.

As a part of its analysis in Thurow, the court found that section 9—3(f) was constitutional and was not void ab initio. The court stated:

“There is no indication here as to the evidentiary standard that is to be applied in making the household-member determination. Under section 9—3(f), this finding could be made by a preponderance of the evidence. However, it also could be made based upon proof beyond a reasonable doubt. Under Apprendi, a finding, based upon a preponderance of the evidence, that the victim was a member of defendant’s household could not form the basis for an enhanced sentence. As noted, such a procedure would be unconstitutional. However, there is no violation if this determination is made beyond a reasonable doubt. Because this latter, constitutionally correct procedure is allowed by section 9—3(f), it cannot be said that there is no set of circumstances under which the statute would be valid. See In re C.E., 161 Ill. 2d [200,] 210-11 [(1994)]. Section 9—3(f) is not unconstitutional on its face. Accordingly, we reject defendant’s contention that section 9—3(f) is void ab initio.” Thurow, 203 Ill. 2d at 368.

Apprendi does not require that section 5—5—3.2(b)(4)(i) be considered unconstitutional if the correct standard of proof is applied in determining the aggravating factors. Apprendi states the following proposition: “Other 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. That is exactly what occurred in this case. At the trial, Emmarld’s age was “submitted to a jury[ ] and proved beyond a reasonable doubt” through the use of a special interrogatory.

•13 We conclude that the court was acting within its express authority when it allowed the use of the special interrogatory and that the interrogatory caused no harm or prejudice to defendant. See People v. Testin, 260 Ill. App. 3d 224, 235, 632 N.E.2d 645, 652 (1994) (“Although the use of special interrogatories in criminal cases is not favored, they have been used without harm or prejudice to the defendant.”); see also United States v. Ross, No. 99 CR 469 (N.D. Ill. March 22, 2002) (memorandum opinion and order) (since the decision in Apprendi, federal district courts have proceeded by submitting special interrogatories to the jury for the determination of drug type and quantity). In order to comply with the mandate of Apprendi, it was imperative that the State have the jury find the age of the victim beyond a reasonable doubt. Had the State not done so, upon sentencing, defendant may not have been eligible for an extended-term sentence. But see Thurow, 203 Ill. 2d at 368 (an Apprendi violation is subject to harmless error analysis); People v. Crespo, 203 Ill. 2d 335, 347 (2003) (an Apprendi violation is subject to plain error analysis). The State’s use of a special interrogatory to determine the age of the victim beyond a reasonable doubt complies with Apprendi, does not violate any of defendant’s constitutional rights, and causes no prejudice to defendant.

Additionally, defendant claims that the court and the prosecutor violated the prohibition against the ex post facto application of the law “by adding an element of the offense at trial.” Defendant argues because the ex post facto prohibition prohibits the legislature from retroactively altering the definition of a crime or increasing the punishment for a criminal act, his case should have been governed by the law in effect at the time of the offense.

As a result of Apprendi, the Illinois legislature amended the extended-term sentencing statute. Pub. Act 91—953, eff. February 23, 2001 (amending 730 ILCS 5/5—8—2(a) (West 1998)); see People v. Swift, 202 Ill. 2d 378, 386 n.l, 387 n.2, 781 N.E.2d 292, 296 n.1, 297 n.2 (2002). The section now states that where a “trier of fact” finds “beyond a reasonable doubt” the presence of one of the factors in aggravation set forth in section 5—5—3.2(b), the judge may sentence the defendant to an extended term. 730 ILCS 5/5—8—2(a) (West 2000). This amendment became effective February 23, 2001, almost two months prior to defendant’s trial in April 2001.

Section 111—3 of the Code of Criminal Procedure of 1963, regarding the required form of criminal charges, was also amended at the same time. Pub. Act 91—953, § 5, eff. February 23, 2001 (amending 725 ILCS 5/111—3 (West 1998)). The section now requires that the State shall provide written notice whenever a fact, other than a prior conviction, which is not an element of the offense will be used to seek an increased range of penalties. 725 ILCS 5/111 — 3 (West 2000). The State strictly complied with the written notice requirement by filing a notice to defendant before the trial of the State’s intent to seek an extended-term sentence based on Emmarld being under the age of 12.

An ex post facto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 360, 107 S. Ct. 2446, 2451 (1987). A law is considered ex post facto if it is both retroactive and more onerous than the law in effect at the time of the offense. Weaver v. Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 24, 101 S. Ct. 960, 965 (1981). A defendant does not, however, have a “vested right” in the modes of procedure used at his trial. Miller, 482 U.S. at 430, 96 L. Ed. 2d at 360, 107 S. Ct. at 2451; Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298 (1977); People v. Felella, 131 Ill. 2d 525, 536, 546 N.E.2d 492, 497 (1989). The ex post facto clause does not limit the legislature’s control of remedies or modes of procedure, so long as they do not affect matters of substance. Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68 (1925).

The amended versions of sections 111—3 and 5—8—2(a) merely affect a mode of procedure. 725 ILCS 5/111—3 (West 2000); 730 ILCS 5/5—8—2(a) (West 2000). They do not make the law more onerous on defendant. The murder of a child under the age of 12 has never been considered an innocent act. The amendments clearly did not alter legal rules to make convictions easier, nor did they increase the punishment for a previously committed offense or make any changes to the elements of the offense of murder. The only change made is that the finder of fact must determine the existence of the relevant aggravating factor beyond a reasonable doubt, thereby increasing the burden required of the State. The amendments do not violate the ex post facto provision of either the United States Constitution (U.S. Const., art. I, § 10) or the Illinois Constitution (Ill. Const. 1970, art. I, § 16). See Felella, 131 Ill. 2d at 537, 546 N.E.2d at 497.

Defendant alternatively argues that this court should reverse because the legislature did not provide for special interrogatories to be given to the jury during the guilt-innocence phase of the trial, relying specifically on the fact that special interrogatories are not favored in the law. See People v. Ruppel, 303 Ill. App. 3d 885, 708 N.E.2d 824 (1999); Testin, 260 Ill. App. 3d 224, 632 N.E.2d 645. Defendant argues that the aggravating factor could have been submitted to a jury in a bifurcated approach wherein the jury would not have been given the special interrogatory until after defendant had been found guilty of the offense of murder.

Although the legislature did not specifically authorize the use of special interrogatories at the guilt phase, the legislature also did not provide for a bifurcated sentencing proceeding similar to death penalty proceedings. See 720 ILCS 5/9—1(d) (West 2000). Moreover, the use of a nonpattern instruction is left to the discretion of the court, and Supreme Court Rule 451 specifically gives the trial court the authority to use nonpattern instructions when no pattern instructions exist that correctly state the law. 177 Ill. 2d R. 451. The decision whether to give a nonpattern instruction rests within the sound discretion of the circuit court and should not be overturned on review absent an abuse of discretion. Testin, 260 Ill. App. 3d at 230, 632 N.E.2d at 649. We find that the trial court judge did not abuse his discretion in submitting the special interrogatory to the jury.

Finally, on the use of the special interrogatory, defendant argues that the trial court and the prosecutor usurped the function of the legislative branch of the government. This assertion is based on defendant’s contention that the court and the prosecutor made the victim’s age an element of the offense of murder. By submitting the special interrogatory on the age of the victim, the trial court did not make age an element of the offense of murder. The court was simply utilizing the most logical method of complying with Apprendi and also acting in accordance with Public Act 91—953.

CONCLUSION

For the aforementioned reasons, we affirm the judgment of the circuit court of Madison County.

Affirmed.

HOPKINS, P.J., concurs.