author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOB AYALA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—1694
    Opinion filed December 31, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Julie M. Campbell and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Job Ayala (Ayala) appeals from his convictions of attempt (murder), aggravated battery (using a deadly weapon), aggravated battery (causing great bodily harm) and armed violence.

Ayala claims that he was not afforded due process of law because: his trial was unfair; the State failed to prove beyond a reasonable doubt that he was guilty of one count of aggravated battery (causing great bodily harm); and his shooting of one victim could not support a conviction for both armed violence and for attempt (murder). Ayala also claims that the order sentencing him improperly records that he was convicted of three counts of attempt (murder).

The charges against Ayala stemmed from the May 13, 1987, shootings of Julio Figueroa (Figueroa), Victor Villasenor (Villasenor) and Adolpho Mercado (Mercado). Ayala was charged with, and tried before a jury on, three counts of attempt (murder), three counts of aggravated battery (causing great bodily harm), three counts of aggravated battery (using a deadly weapon) and three counts of armed violence predicated upon aggravated battery (causing great bodily harm) — one count for each victim. At trial, all three victims testified that on May 13, 1987, they were crossing a street in Chicago when they saw a group of 10 to 15 youths approach from a nearby viaduct flashing the hand signal of the Imperial Gangsters, a street gang, and making other hand signals derogatory of the Latin Kings, another gang, while yelling “K.K.,” meaning “King Killer.”

Villasenor testified that the viaduct from which the group of youths had come was a “neutral zone” between the territories of two gangs, the Latin Kings and the Imperial Gangsters. After yelling and gesturing at the three boys for less than a minute, the group of youths became quiet, at which point, according to Villasenor, the youths were looking behind the three boys. When Villasenor turned around to see what they were looking at, he saw Ayala wearing a hooded sweatshirt. Ayala then pulled a gun from his pocket, grinned at the three boys and walked toward them. Villasenor further testified that Ayala walked up to Figueroa, said to him, “K.K., I’m going to kill you,” and pulled a mask down over his face. Villasenor began to run away, then heard two shots. As he began to climb a gate, Villa-senor felt a gun at his back, turned around and saw Ayala fire the gun. Villasenor fell to the ground, turned and saw Ayala fire at Mercado. Figueroa ran toward Villasenor and attempted to aid him, but Villasenor, who couldn’t run because of his wound, told Figueroa to go on. The police and an ambulance arrived shortly thereafter and Villasenor was taken to Illinois Masonic Hospital, where he underwent surgery for a gunshot wound which caused a genital urinary tract injury, a hole in his bladder and abdominal wall muscle damage.

Mercado, who was 14 years old at the time of the shooting, testified that while he didn’t turn around when the approaching youths fell silent, he did so when he heard the shot fired at Figueroa, who was behind him. When he turned around, Mercado saw Villasenor get shot while trying to climb a gate. Mercado, who began to run away, heard two more shots, the second of which entered the back part of his thigh and exited through the front. Subsequent to his being shot, Mercado was taken to a hospital, where his wound was cleansed, and he was released about a half hour later. Mercado testified that he never saw the face of the person who fired the shots.

Figueroa, who was 16 years old at the time of the shooting, testified that he looked back when he saw Villasenor look back, at which time he saw Ayala holding a gun in his hand. Figueroa testified that Ayala was grinning, but then pulled a mask down over his face and said, “I’m going to kill you.” Ayala put the gun to Figueroa’s chest, but Figueroa knocked it away. Ayala then fired the gun, shooting Figueroa on his left side. Figueroa went down, then ran about three steps before turning and seeing more people by the viaduct with the original group. He was then shot in the right arm. Figueroa then turned around and saw Villasenor on the ground. After he heard two more shots fired, he attempted to help Villasenor; but when Villa-senor collapsed, he left him and continued to run. Figueroa was treated for his wounds at a hospital and was later treated for an infection resulting from the first wound. He further testified that over the two-year period preceding the shooting he had seen Ayala more than 30 times, making gang signals at a nearby bus stop to people on the buses. He also saw Ayala at about 4 p.m. on the day of the shooting, riding a bicycle under the viaduct from which the large group seen by the victims had come.

David Sobczyk (Sobczyk), called by the State as a gang crimes specialist for the Chicago police department and assigned to the area in which the shootings took place, testified that he helped investigate various gang-related criminal activities and maintained records on street gangs, including the Imperial Gangsters and the Latin Kings. Sobczyk stated that in his opinion, Ayala was a member of the Imperial Gangsters, basing that opinion upon his knowledge of the meaning of the various hand signals used during the events prior to the shooting. He also testified that “K.K.” means “King Killer.” Sobczyk testified that prior to the May 13 shootings, he observed Ayala in the area with several other persons, two of whom were leaders of the Imperial Gangsters. Sobczyk also related that the area in which he saw Ayala with these persons was within the territory of the Imperial Gangsters.

Sobczyk learned of the shooting soon after it occurred; he then went to the scene of the crime and interviewed witnesses. At 9 p.m. on the day of the shootings, Sobczyk interviewed an individual who claimed to have witnessed the incident, and who told him'that Ayala was the assailant. Based upon that conversation, Sobczyk returned to his office and retrieved a photo identification book which contained pictures of Imperial Gangsters. Sobczyk never wrote down the name of the eyewitness with whom he spoke; he testified, however, that the witness was a male, and although he told his superior the name of the witness, he did not make a record of it. Sobczyk took the photo identification book to Figueroa’s home. Earlier, while in the hospital, Figueroa had been shown pictures from photo books by other officers, but hadn’t identified anyone as his assailant. While perusing the photo book provided him by Sobczyk, Figueroa first pointed to an individual later identified as David Quinn and commented that the person pictured looked like his assailant. Figueroa then turned to the photo of Ayala and identified him as his assailant. Sobczyk recorded the identification as “tentative.”

After Figueroa’s identification of Ayala, Ayala was arrested at his home. Sobczyk took a photograph of Ayala at the police station and put together a photo array that included the photo of Ayala and four similar-looking persons. Sobczyk took the photo array to the hospital where Villasenor was being treated and showed it to him. Villasenor recognized four of the photographed persons as gang members and pointed out Ayala as his assailant. Sobczyk then returned to Figueroa’s home with the photo array, and Figueroa identified the picture of Ayala as that of his assailant. On May 14, 1987, Figueroa was shown the photo array about two hours prior to viewing and identifying Ayala in a police lineup.

Ayala’s defense consisted of the testimony of four Chicago police officers. One officer testified that while investigating the crime, he received a telephone call in which he was told that Figueroa had identified David Quinn as his assailant. Another officer, who spoke with Villasenor at the scene of the crime, testified that Villasenor was clutching his stomach and screaming and that he didn’t remember whether Villasenor told him that there was only one or that there were two assailants.

Ayala requested during the instruction conference that the jury be instructed:

“Where an individual has knowledge of the facts and is accessible to a party but is not called by that party, a presumption arises that his testimony would be adverse to that party, if the witness was not equally available to the defendant.”

The court denied the instruction on the ground that the State did not know the identity of the witness who led Sobczyk to believe that Ayala was the assailant, despite Sobczyk’s having turned in the witness’ name to a superior. The court held that the witness was not available to the State. The court further held that the names of the police officers other than Sobczyk who had shown photo identification books to Figueroa while he was in the hospital were neither known nor accessible to the State.

Ayala was found guilty of all charges with the exception of the attempt (murder) of Adolpho Mercado, of which he was acquitted. He was sentenced to 30 years in the custody of the Illinois Department of Corrections on each of the two attempt (murder) convictions, 30 years on each of the three armed violence convictions and five years on each of the three convictions for aggravated battery (using a deadly weapon), all sentences to run concurrently. Ayala was not sentenced on his three convictions for aggravated battery (causing great bodily harm) because they were held to be lesser crimes included within the armed violence convictions.

Ayala’s first claim is that the trial court improperly admitted references to his involvement in gang activity during the State’s opening and closing arguments, and as evidence during his trial. He contends that such evidence was irrelevant to the issue of identification of the assailant, and that it prejudiced the jury, thus denying him a fair trial. The State replies that the evidence was relevant to prove Ayala’s motive for committing the crime — that he was acting as part of a gang. The State also maintains that the evidence was relevant to make understandable the gang symbols made by Ayala and his group when the three victims faced them on the street. Any prejudice to him at trial, the State argues, was outweighed by the relevance of the evidence.

Evidence of a defendant’s involvement in gang activity is regarded as prejudicial for the reason that such evidence may lead to the defendant’s conviction “merely because of his membership in an organization that is unpopular.” (People v. Hairston (1970), 46 Ill. 2d 348, 372.) As a result, “proof of membership is admissible only if there is also sufficient proof to show that membership is related to the crime charged, for example, to show common design or purpose.” (46 Ill. 2d at 372.) The court in Hairston found evidence that the defendant was a high-level gang member admissible despite being prejudicial, because the evidence was relevant to the accusation that the defendant had ordered another gang member to kill the victim: the defendant’s status lent credibility to the State’s theory that another gang member would obey his orders. 46 Ill. 2d at 372.

We agree with the State that evidence of Ayala’s gang membership was relevant for the purpose of proving the motive for the attack and that, therefore, the trial court did not abuse its discretion in admitting the evidence. The court in People v. DeSavieu (1973), 11 Ill. App. 3d 529, 534-35, held evidence of gang membership admissible when it helped “prove the motive of the defendant.” The evidence, it said, provided “an explanation for the seemingly inexplicable attack.” See also People v. Rivera (1986), 145 Ill. App. 3d 609, in which evidence of the defendant’s gang membership was held relevant to show the motive for the killing of a victim who had been selling drugs in territory belonging to the defendant’s gang; the evidence was admissible despite the prejudice caused to the defendant. 145 Ill. App. 3d at 618.

In the case sub judice, evidence that Ayala belonged to the Imperial Gangsters helped prove the motive for shooting the three victims, who were facing a group of persons identifying themselves as Imperial Gangsters, and assisted in clarifying Ayala’s reference to “K.K.,” before the shootings.

Ayala contends that the case at bar is analogous to People v. Gonzalez (1989), 188 Ill. App. 3d 559, where, in being interviewed by the police, the victim said that he thought his assailant was a “Spanish Cobra,” and identified him from photo albums which contained photographs of “self-admitted Spanish Cobra gang members.” The court held inadmissible the introduction of evidence of gang affiliation to show the procedure and circumstances leading to the defendant’s identification. We find Gonzalez to be inapposite, for the evidence of gang affiliation in that case was unrelated to the criminal act, but relevant only to the method by which the victim identified and the police found the defendant. Here, however, the evidence showed a motive for what would otherwise appear to be a random and inexplicable attack. We hold, therefore, that the trial court did not abuse its discretion in admitting evidence of Ayala’s gang affiliation.

Ayala’s second claim is that the trial court erroneously accepted Sobczyk as an “expert witness” and erred also in admitting his testimony about Ayala’s gang affiliation, maintaining that Sobczyk was not qualified as a “gang crimes expert.” Sobczyk’s testimony is further alleged by Ayala to have been irrelevant to the issue of identification and prejudicial to his right to a fair trial. The State responds that Sobczyk’s training and experience qualified him as a “gang crimes expert,” and that his testimony about Ayala’s gang affiliation was relevant to prove Ayala’s motive for the crime.

A "witness qualifies as an expert if “because of his skill, training, or experience, he is better able to form a more accurate opinion as to the matter under consideration than is an ordinary person.” (People v. Jackson (1986), 145 Ill. App. 3d 626, 633-34.) The Jackson court, holding admissible a police officer’s “expert” opinion that the defendant was a gang member, stated that specialized formal training was unnecessary, that experience alone could qualify one as an expert, and that as long as the testimony is based upon information of the “type reasonably relied upon by experts in the field,” it would be proper to admit it. 145 Ill. App. 3d at 633-34. See also People v. Douglas (1989), 183 Ill. App. 3d 241, 254.

While Sobczyk’s two years of experience in the neighborhood where the crime occurred was not as extensive as the five years had by the officer in Jackson, the record justifies the trial judge’s conclusion that Sobczyk possessed a greater knowledge of gang activity than would be available to the average person. Moreover, Sobczyk, like the officer in Jackson, was active in the investigation of gang crimes and other gang activity in the area; indeed, he was a specialist in the field. The court in Jackson deemed such experience sufficient upon which to base an expert opinion. Accordingly, inasmuch as Sobczyk’s testimony qualifies as expert opinion, and since, as we have already held in connection with defendant’s first issue, that testimony relating to gang affiliation was relevant here, and further because we agree with the trial judge as to this and the previous issue raised by defendant that the probative value of the testimony as to gang membership outweighs its prejudicial effect, we hold that the trial court did not abuse its discretion in admitting Sobczyk’s testimony.

Ayala’s third claim is that during the State’s closing and rebuttal arguments, the prosecutor misstated Sobczyk’s testimony and also played upon the jurors’ fears of gang violence in arguing that they should convict Ayala. The State responds that Ayala, by objecting to only two of the allegedly improper statements at trial, and by not mentioning any of them as issues in his post-trial motion for a new trial, has waived review of them on appeal.

In closing argument, the State implied that it might be possible that witnesses to whom Sobczyk had spoken after the crime were not in court because they were afraid to come to court. Ayala did not object to this statement. During its rebuttal argument, the State incorrectly told the jury that the eyewitness who identified Ayala to Sobczyk as the perpetrator of the crime “could be a mother with children.” The court sustained Ayala’s objection to that remark and admonished the State to continue its argument “based upon the evidence.”

In his post-trial motion for a new trial, Ayala claimed only generally that “the court allowed the prosecution to engage in improper argument.” The issue was not argued at all during the hearing on Ayala’s motion.

Ordinarily, this court does not review errors alleged to have occurred during trial unless the defendant both objects to the error at trial and raises the issue in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186; People v. Fields (1990), 135 Ill. 2d 18, 55.) Because Ayala did not properly preserve for review the issue of the propriety of the statement that witnesses may have feared to come to court, review of that issue would generally be waived. See also People v. Cox (1990), 197 Ill. App. 3d 1028, 1036.

Even when a statement is properly objected to at trial, as was the assertion that an eyewitness to the crime “might be a mother with children,” it is not considered to be properly preserved in a post-trial motion if it is not raised with enough specificity to afford the trial court the “opportunity to rule on the issue presented for review.” (People v. Turk (1981), 101 Ill. App. 3d 522, 533 (supplemental opinion on denial of rehearing).) In Turk, the court held that a post-trial claim that “arguments were inflammatory, prejudicial *** and [violated the right to counsel and encouraged the jury to convict based upon constitutionally inadmissible matters]” (101 Ill. App. 3d at 530) was not sufficient to meet the standard of specificity set forth in Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50.

Ayala raised the issue of the State’s improper rebuttal argument with even less specificity than that with which it was raised in Turk. When combined with the failure to even discuss the issue during the hearing on Ayala’s post-trial motion, we conclude that pursuant to People v. Enoch (1988), 122 Ill. 2d 176, 186, review of the issue would generally be waived. See also People v. Harris (1990), 196 Ill. App. 3d 663, 674-75 (lack of specificity in post-trial motion waives issue pursuant to Enoch).

Even if an issue is generally waived, however, Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)) allows this court to notice “[p]lain errors or defects affecting substantial rights *** although they were not brought to the attention of the trial court.” The “plain error rule,” however, is not applied unless “the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial.” People v. Young (1989), 128 Ill. 2d 1, 47.

But the evidence in this case is not closely balanced. The State’s case was based upon the eyewitness account of two of the victims, one of whom recognized Ayala from having seen him on several occasions before and during the commission of the offenses, and both of whom identified Ayala before and during trial. Their testimony, furthermore, was not impeached, and the case was not otherwise complicated by conflicting, evidence. Finally, the trial court sustained Ayala’s objection to the remark made during rebuttal argument, admonished the State to argue according to the evidence and instructed the jury to disregard statements in closing argument to which objections were sustained. (See, e.g., People v. Scott (1990), 194 Ill. App. 3d 634, 645 (the provision of such a jury instruction is a factor in determining the prejudicial effect of improper comments).) We hold, therefore, that any error resulting from the State’s comments was not plain error, and review of the issue has therefore been waived.

Ayala’s fourth claim is that the trial court erred in failing to instruct the jury, as he requested, that it could draw an adverse presumption from the State’s failure to call witnesses available to the prosecution. Ayala contends that there was evidence to support such an instruction, and further argues that there was evidence that an eyewitness to the shootings had knowledge of a disputed factual issue, but that despite being available to the prosecutor, the witness was not called by the State.

The State responds by maintaining that the confrontation clause of the sixth amendment to the United States Constitution does not require it to disclose the identity of an eyewitness who was only a “tipster.” The State claims that because the witness was found to be inaccessible to the State, it was not required to disclose the witness’ identity to Ayala.

Ayala does not argue, however, that the identity of the eyewitness should have been disclosed to preserve Ayala’s right “to be confronted with the witnesses against him” (U.S. Const., amend. VI); nor that his arrest was illegal as having been made without probable cause. (See, e.g., Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623; McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056.) Ayala contends only that the State’s failure to call the witness should create an unfavorable presumption against the State. Our review of this issue, therefore, is limited accordingly.

The instruction Ayala requested was not contained in the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (hereinafter IPI Criminal 2d). When “IPI-Criminal does not contain an accurate instruction on a subject that the jury should be instructed upon and if the tendered non-IPI instruction is simple, brief, impartial, and free from argument,” then the trial court abuses its discretion in refusing to give the instruction when “the *** refusal *** results in the jury not being instructed as to a defense theory of the case which is supported by some evidence.” People v. Wolfe (1983), 114 Ill. App. 3d 841, 851-52.

Ayala advances the holding in People v. Strong (1961), 21 Ill. 2d 320, as support for his claim that the court abused its discretion. Strong held that the unexplained failure by the prosecution to call a witness who was the only person who could have rebutted defendant’s testimony indicating that he had been entrapped by police “may give rise to an inference against the state.” (21 Ill. 2d at 325.) Later cases, however, have limited the holding in Strong to cases involving the defense of entrapment. (See People v. Poulos (1990), 196 Ill. App. 3d 653, 661.) Further, there are cases which have held that such a witness must have testimony unique to the case in order to give rise to the negative inference.

In People v. Williamson (1966), 78 Ill. App. 2d 90, patrons at a bar who witnessed a shooting were not called by the State to testify, leaving only the testimony of the bartender against the defendant. The court first stated:

“When a case turns upon a disputed issue of fact which an available witness could resolve from his unique knowledge of the event and the State chooses not to call that witness to testify, then the trier of fact may infer that the testimony would have been unfavorable to the State.” (78 Ill. App. 2d at 96.)

The court then went on to note that the witnesses who did not testify “were in no better position to identify the defendant than was the bartender.” (78 Ill. App. 2d at 97.) Moreover, the bartender’s testimony was neither impeached nor discredited and no motive was suggested for the State to suppress evidence identifying the defendant. The court held that therefore the witnesses not called by the State did not have such unique knowledge of the event as to “demand an explanation for [their] *** absence.” 78 Ill. App. 2d at 97. See also People v. DeSavieu (1973), 11 Ill. App. 3d 529, 534 (no negative presumption arises from State’s failure to call as witnesses or satisfactorily explain the absence of eyewitnesses or of police officers in the area).

In People v. Zenner (1980), 84 Ill. App. 3d 566, 571, the court held:

“The State is not required to produce every witness to a crime, nor does the fáilure to do so ordinarily create a presumption that the testimony of that witness would be unfavorable to the State.”

In that case, the victim of an aggravated battery testified, but not the wife of the defendant, who was also an eyewitness. The accounts of the event given by the victim and by the defendant contradicted one another. The court’s holding that the presumption was not required was based on both the lack of a requirement to produce every witness, and on the fact that the witness was available to the defendant. 84 Ill. App. 3d at 571-72.

In this case, although the witness was not made available to the defendant, the eyewitness testimony of Figueroa and Villasenor was unimpeached and uncontradicted by any other evidence. The unidentified eyewitness’ role was to lead Sobczyk to review a set of photo books containing Ayala’s picture. There is no claim that the resulting identifications by Figueroa and Villasenor were made under the influence of this unidentified witness or were otherwise improperly influenced by the police.

We hold, therefore, that the failure to provide the jury with the requested instruction was not an abuse of the court’s discretion, since the witness did not have unique testimony to offer in the case.

Ayala’s fifth claim is that the jury verdict finding him guilty of aggravated battery causing great bodily harm to Mercado was not adequately supported by the evidence. Ayala avers that the State failed to sufficiently prove that Mercado suffered “great bodily harm” as a result of the gunshot wound. The evidence at trial, according to Ayala, showed only that the bullet entered the rear of Mercado’s thigh and passed through the front of his leg, and that Mercado spent only 30 minutes in the hospital after the shooting.

The State responds by arguing that the limited amount of time Mercado spent in the hospital does not affect the sufficiency of the evidence against Ayala, and the fact that the bullet entered one part of Mercado’s leg and exited through another is sufficient evidence of great bodily harm.

When reviewing a claim of insufficient evidence, this court is required to determine

“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.” (People v. Young (1989), 128 Ill. 2d 1, 49.)

(See also People v. Penson (1990), 197 Ill. App. 3d 941, 944.) In making such a determination, the court is mindful of the “function of the jury as the trier of fact to assess *** the inferences to be drawn from the evidence.” 128 Ill. 2d at 51. See also People v. Carr (1989), 188 Ill. App. 3d 458.

We find the nature of Mercado’s wound, as described at trial, sufficient to support the jury’s verdict in this case. Courts have held irrelevant whether the victim sought medical attention at all after the incident. See, e.g., People v. Olmos (1978), 67 Ill. App. 3d 281, 289-90; People v. Matthews (1984), 126 Ill. App. 3d 710, 714-15.

Furthermore, jury verdicts finding great bodily harm have been upheld solely on the basis of the action the defendant took against the victim. In People v. Cross (1980), 84 Ill. App. 3d 868, 872, the court upheld such a verdict, even without proof of the nature and extent of the injury inflicted, when the evidence showed that the victim had been hit on the head with a lead pipe. In People v. Matthews (126 Ill. App. 3d at 714-15), a similar verdict was upheld when the victim suffered only a head bruise which resulted from the victim’s having been struck there with a gun. Accordingly, we decline to reverse the jury’s verdict on this basis.

Ayala’s sixth claim is that he was convicted and sentenced for two separate offenses, attempt (murder) and armed violence against Figueroa, despite the fact that both offenses arose from the same physical act. Ayala first shot Figueroa in the abdomen. When Figueroa began to flee, Ayala shot him again, this time in the arm. Ayala states that shooting Figueroa in the chest and in the leg was a single physical act which could not, since he had already been convicted and sentenced for attempt (murder), also be used to support a conviction and sentence for armed violence. Despite Ayala’s failure to object to the conviction for armed violence at his trial, we treat this omission as plain error, since it resulted in a sentence of 30 years in the custody of the Illinois Department of Corrections, albeit to be served concurrently with the conviction for the attempted murder of Figueroa. We therefore review this issue.

The court in People v. Johnson (1989), 128 Ill. 2d 253, 288, reaffirmed the standard set by People v. King (1977), 66 Ill. 2d 551, 566, for determining whether more than one conviction can be obtained when interrelated acts, each of which could support a conviction, are committed:

“ ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold *** that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.”

The court in Johnson upheld armed violence and attempt (murder) convictions against a defendant who had fired a shot at the victim, shot another person twice, attempted to rob that second person and then shot the first victim again. The court based its determination that both convictions could stand on the ground that “there were two separate physical acts sufficient to support each conviction, the two gunshots, along with a number of events intervening between the two acts.” (Johnson, 128 Ill. 2d at 289.) Although the court mentioned that events intervened between the two acts, it did not hold that the two gunshots were separate acts because events intervened between them.

The court in Johnson referred to People v. Myers (1981), 85 Ill. 2d 281, to support its decision. In Myers, the court upheld separate convictions and concurrent sentences for attempt (murder) and for armed violence predicated upon aggravated battery. The defendant wounded the victim by cutting his throat with a knife, moved the knife away to threaten a third person, cutting that person’s fingernail in the process, then put the knife to the victim’s throat once more, cutting it still deeper. The court held that the two acts of cutting the victim’s throat, even though in the same place and closely related in time, were sufficient to constitute separate physical acts. (85 Ill. 2d at 288-89.) In Myers, the court held that “[t]wo separate invasions of [the victim’s] body, even though closely related by reason of the fact that they attacked the same area of his body and were close in time, were not one physical act.” 85 Ill. 2d at 289.

This court, in People v. Partee (1987), 157 Ill. App. 3d 231, upheld three separate convictions for aggravated battery where the defendant, in the course of struggling for several minutes with the intended victim of a robbery, stabbed him three times. The court held that “[e]ach injury constituted an independent offense and was caused by a separate physical blow.” The court distinguished its earlier decision in People v. Baity (1984), 125 Ill. App. 3d 50, where it had held that the defendant’s act of shooting the victim three times constituted only a single act, on the ground that the shots were fired “in rapid succession.” Partee, 157 Ill. App. 3d at 270.

Other cases have held that when a defendant commits even several acts against a victim during a single attack, and the attack is the basis for more than one charge, only one conviction and sentence can be obtained. See, e.g., People v. Gvojic (1987), 160 Ill. App. 3d 1065 (multiple stab wounds resulting from a single attack held to be the result of only one act).

In People v. Young (1989), 187 Ill. App. 3d 977, however, this court held that a defendant was properly convicted of both armed violence and of murder. In that case, the defendant was held to have committed two separate acts against the victim when he shot the victim in the face, fired shots at two of the victim’s companions, then walked over to where the victim was crawling and shot him in the head. (187 Ill. App. 3d at 987.) The court held that the two shots fired at the victim

“were distinct physical acts because, just as the two cuts to the victim’s neck in Myers were separated by the cutting of another person’s fingernail, the two shots in this case were separated by the intervening act of firing at [the victim’s companions].” 187 Ill. App. 3d at 987.

Despite the implication of Young that an intervening act by the defendant is required in order to sufficiently separate two other acts so as to support conviction on two separate offenses, we do not read the Illinois Supreme Court’s decision in Myers or Johnson as requiring any such intervention. In the instant case, the second of the two gunshots fired by Ayala at Figueroa was fired after Figueroa had fallen down, had begun to flee, and had stopped to notice the crowd that had gathered at the scene. Accordingly, we hold that on these facts the two gunshots sufficiently constitute separate and distinct “overt or outward manifestationfs]” (People v. King (1977), 66 Ill. 2d 551, 566), so as to support two separate offenses, despite the close relationship in time between the two shots. Accordingly, we affirm Ayala’s conviction for armed violence against Figueroa.

Ayala’s seventh claim is that his firing of a single shot at Villasenor, which wounded him, was a single physical act, thus precluding him from being convicted both for attempt (murder) and for armed violence as to that victim. Ayala seeks vacation of his conviction and sentence for armed violence. Since the State agrees with this claim, the conviction and sentence are accordingly vacated.

Ayala’s eighth claim is that he could not properly be convicted both for attempt (murder) and for aggravated battery against Figueroa and against Villasenor, as aggravated battery is a lesser included offense of attempt (murder). Inasmuch as the State agrees with this claim, the convictions and sentences for aggravated battery against Figueroa and against Villasenor are accordingly vacated.

Ayala’s ninth claim is that his mittimus incorrectly states that he was convicted of three charges of attempt (murder) and that it should be amended to reflect his conviction on only two counts. The State agrees with this claim as well; accordingly, this cause is remanded to the circuit court with directions that a corrected mittimus be issued to reflect Ayala’s conviction on only two charges of attempt (murder).

Affirmed in part; vacated in part; cause remanded with directions.

HARTMAN and BILANDIC, JJ., concur.

       Judge Bilandic participated in the decision of this case prior to taking office as a supreme court judge.


source: Caselaw Access Project

license: Public Domain

text:
      In re J.S., a Minor (The People of the State of Illinois; Petitioner-Appellee, v. Frances Richko, Respondent-Appellant).
    First District (2nd Division)
    Nos. 1—89—0570, 1—89—2802 cons.
    Opinion filed December 31, 1990.

      Ronald S. Fishman, of Fishman & Fishman, Ltd., of Chicago, for appellant.
    Patrick T. Murphy, Public Guardian, of Chicago (Susan Tone Pierce, Anita Weinberg, and Michael G. Dsida, of counsel), for appellee J.S.
   JUSTICE SCARIANO

delivered the opinion of the court:

Respondent Frances Richko (Frances) appeals from several orders which effectively ended her and her husband’s, Vincent Richko’s (Vincent) (collectively Richkos), custody of J.S., a minor, and which eventually granted custody, under the protective supervision of the Cook County Probation Department (Probation Department), to Lee and Christine S. (Lee and Christine), her parents. Frances, J.S.’s maternal aunt, claims that she was a “responsible relative” of the child under the provisions of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.) (the Act) and was thus entitled to the rights of a party to the proceedings that resulted in the orders from which she appeals.

Christine has a history of mental illness and was hospitalized in a mental health facility when J.S. was born to her on May 24, 1986. Christine gave Frances custody of J.S. after the girl’s birth.

When Lee and Christine later requested custody of J.S. from the Richkos, they refused. On June 18, 1987, Frances filed a “Petition for Adjudication of Wardship” under section 2 — 13 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13), claiming that J.S. was a neglected and dependent minor and asking that J.S. be adjudged a ward of the court.

The circuit court appointed a guardian ad litem for J.S. and ordered that temporary custody be given to the Richkos. Following investigations by social service agencies, the court vacated the Richkos’ temporary custody of J.S. and granted temporary custody to the Department of Children and Family Services (DCFS). The court ordered, however, that J.S. was to continue living with the Richkos pending a further investigation, with which the Richkos were ordered to cooperate. Frances does not appeal from these orders.

On August 10, 1988, a juvenile warrant was issued for J.S. at the request of the Probation Department, which charged that she was “dependent and neglected,” under sections 2 — 3(1) and 2 — 4(1) of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(1), 802 — 4(1)). During a hearing on August 19, 1988, in which the Richkos were not invited to participate, the Probation Department requested that the warrant be quashed and recalled. An officer of that department testified that although the warrant had been issued because the Richkos had moved from where they had been living without notifying DCFS or the Probation Department, J.S. was no longer living with the Richkos and probably would not be living -with them in the future. The court therefore ordered the warrant quashed and continued the case to a later date. Frances appeals from this order, claiming that the court thereby approved J.S.’s removal from the physical custody of the Richkos.

Frances filed an “Emergency Petition for Temporary Custody” on August 25, 1988, asking for temporary custody of J.S. during the pendency of the proceedings. At the hearing on that petition on August 30, 1988, Frances claimed that she had filed it in order to obtain review of the DCFS’s decision to end J.S.’s placement with the Richkos.

Debbie Palmer (Palmer) of DCFS testified that the Department had planned since February 1988 to eventually reunite J.S. with her parents. The Richkos, according to the testimony, had attempted to sabotage this plan by failing to cooperate in the scheduling of visits between J.S. and her parents and by referring to J.S. as “Michelle,” rather than by her own name. Additionally, the juvenile court’s department of clinical services had recommended removing J.S. from the Richkos’ home on the ground that continued placement with that couple was not in J.S.’s best interests.

Palmer further testified that she was unable to locate the Richkos between August 10 and 17, 1988, at the address listed for them. In light of DCFS’s belief that J.S.’s interests would be better served by her placement in a new foster home, its failure to locate the Richkos prompted DCFS to attempt to remove J.S. from the Richkos’ physical custody. Vincent Richko called DCFS on August 17, 1988, and was instructed by Palmer to return J.S. to DCFS. Palmer testified that when she was returned to DCFS, J.S. was wearing shoes that were too small and clothing that was dirty and unwearable and did not fit properly.

Frances testified that Christine gave her custody of J.S. after the girl’s birth, explained the reasons for calling the girl “Michelle,” claimed that she had complied with the court’s request to no longer do so, and claimed that DCFS, not the Richkos, was responsible for DCFS’s inability to locate the Richkos prior to removing J.S. from their custody. She also testified that Lee and Christine were responsible for any difficulties in arranging visits between J.S. and her parents. Frances further stated that for more than two years since J.S.’s birth, she had lived with the Richkos, and that they could provide better care for her than an emergency foster home, at least until a later hearing could determine Christine’s rights to custody of J.S.

Upon a motion filed by Lee and Christine, by J.S.’s guardian ad litem, and by the assistant State’s Attorney, all of whom agreed that DCFS’s removal of Jennifer from the Richkos’ home was justified, the court, while noting a preference for placing J.S. with relatives, held that J.S’s best interests were served by continuing her care in the new foster home. The court denied Frances’ petition, but granted the Richkos supervised visitation after September 30, 1988, at DCFS’s discretion.

Frances’ “Notice of Interlocutory Appeal” states that she appeals from an order of August 25, 1988. Because that order, however, granted Frances leave to file her “Emergency Petition for Temporary Custody,” we assume, given the argument in her brief, that she is appealing from the circuit court’s August 30, 1988, denial of her emergency petition.

Following this decision, Frances attempted to depose Lee and Christine, J.S.’s guardian ad litem, and Palmer. She also requested discovery of medical, psychological, investigative and other records concerning J.S., Lee and Christine, and the custody matter in general. After an October 12, 1988, hearing on motions by the deposed parties to quash the notices to take depositions and for other discovery, the circuit court granted the motions.

The court held that while the Richkos were legally “responsible relatives” during the time they had temporary custody of J.S., the vacation of that temporary custody and its placement with DCFS transformed the Richkos’ status to that of “foster parents.” When DCFS terminated that relationship and placed J.S. in another foster home, the Richkos became “former foster parents.” The court held that the Act gave the Richkos the right to be heard in proceedings regarding J.S.’s disposition and also the right to representation by an attorney, but gave them no right to discovery. Frances appeals from this order.

During the November 2, 1988, hearing on DCFS’s petition charging that J.S. was a dependent and neglected child, the State dropped the charge of neglect. Christine admitted the allegations of the petition that J.S. was dependent and without proper parental care. The court so found, ordered a supplemental investigation and set a date for a dispositional hearing.

During the November 2 hearing, the Richkos asked the court to undertake an independent review of an alleged “deal” between the State’s Attorney and DCFS that had been allegedly arranged without consultation with the Richkos. The court refused. Frances appeals from this decision.

Following further investigations by social service agencies, J.S.’s dispositional hearing was held on February 1, 1989. Frances moved for temporary or permanent custody of J.S., claiming that the child had been wrongfully removed from the Richkos’ home and that granting permanent custody of J.S. to DCFS with placement in a foster home would be harmful to the child.

. The court granted the State’s oral motion to strike Frances’ request, holding that while, as former foster parents, the Richkos had a right to be heard, the court had already resolved the issue of their custody of J.S. After obtaining Christine’s consent, the court found that J.S.’s parents were unable to care for her, that her best interests lay in making her a ward of the court and in granting permanent custody of J.S., with the right to place for adoption, to DCFS. Frances also appeals from this decision.

Frances filed her appeal of the above matters on March 1, 1989. During the months following the grant of permanent custody to DCFS, various progress reports were filed by social service agencies involved in the attempt to reunite Jennifer with her parents. The reports indicate that Lee and Christine participated in counseling, that they improved their relationship with each other and with J.S., and that J.S.’s overnight visits with Lee and Christine were successful. Despite Frances’ claims to the contrary in oral argument before this court, the reports disclose evidence that Christine was successfully being treated for her mental illness and was considered by her doctor to be capable of caring for J.S.

Lee and Christine filed a “Supplemental Petition for Return” on September 6, 1989, requesting vacation of DCFS’s guardianship of J.S. and the grant of permanent custody to themselves, under the initial supervision of DCFS and Catholic Charities. Catholic Charities, which had been involved in the investigation of the relationship between J.S. and her parents, supported the petition, as did the family counseling service which had cooperated with DCFS in counseling the child and her parents.

Frances contends that Lee and Christine improperly moved on July 31, 1989, to exclude the Richkos from any further proceedings involving J.S. She then moved to strike that motion and for a grant of attorney fees incurred in responding to it. The record discloses a “Notice of Motion” but indicates neither the content of nor the basis therefor.

A hearing on Lee and Christine’s petition for custody was held on September 21, 1989. During this hearing, Lee and Christine withdrew their “motion *** to exclude the foster parents from the proceedings” on the ground that it had become moot. The court denied Frances’ request for attorney fees.

Frances then objected to Lee and Christine’s “Petition for Return,” arguing that a full hearing should be held to determine whether J.S. should be returned to her natural mother. Frances pointed out to the court that Christine had stated earlier in the year that she was unable to care for J.S. and that she was being treated for manic depression and schizophrenia. Frances also claimed that there was no evidence that Christine’s condition had changed or that she was capable of caring for J.S.

The court, however, after finding that the guardian ad litem, DCFS and the State agreed that Lee and Christine’s petition should be granted, denied Frances’ request. The court held that as “foster parents,” the Richkos had a right to be heard, and that they had been heard, but that they had no right to an evidentiary hearing.

The court then held that J.S.’s best interests were served by vacating DCFS’s guardianship, that Lee and Christine were able to adequately care for J.S. and that she would therefore be placed in the custody of her parents under a supervisory order lasting at least 12 months. The order required Lee and Christine to provide all necessary care for J.S., to cooperate with DCFS, to continue in individual and in family counseling, to enroll J.S. in an appropriate care program and to make J.S. accessible to the court and to the guardian ad litem. The court also ordered Christine to continue her medical treatment. Frances appeals from this decision as well.

The State contends that this court has no jurisdiction to review the orders of August 19, 1988, August 30, 1988, October 12, 1988, and November 2, 1988, because Frances did not file an appeal within 30 days from the time each of those orders were issued. Frances filed her appeal on March 1,1989.

Frances originally claimed that this court’s jurisdiction to review the above orders was based either upon Supreme Court Rule 307(a)(1) or Supreme Court Rule 304(b)(1), but in response to the State’s motion to dismiss the appeal from those orders, Frances maintains that this court’s jurisdiction is based upon Supreme Court Rule 307(a)(6). (See 134 Ill. 2d Rules 307(a)(1), (b)(1), (a)(6).) That rule allows an appeal from an interlocutory court order “terminating parental rights.” That rule, however, also requires that any “appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal.” (134 Ill. 2d R. 307(a)(6).) As held in Stoller v. Village of Northbrook (1987), 162 Ill. App. 3d 1001, 1005, “Jurisdiction only exists where a party files his notice of interlocutory appeal within the 30-day limitation.” See also Design Studio International, Inc. v. Chicago Title & Trust Co. (1989), 185 Ill. App. 3d 797, 808.

Frances asserts that her appeal from the above orders need not have been filed within the 30-day deadline because “[pjiecemeal appeals are not favored *** in Illinois.” (Voss v. Lincoln Mall Management Co. (1988), 166 Ill. App. 3d 442, 451.) Voss, however, decided whether to allow a permissive interlocutory appeal under Supreme Court Rule 308. The lack of favor with piecemeal appeals may justify a court’s decision not to allow appeal of interlocutory orders until the rights of the parties have been finally determined, in cases where the court has the discretion whether or not to hear the appeal. (Voss, 166 Ill. App. 3d at 451-52.) Supreme Court Rule 307(a)(6), however, allows appeals from interlocutory orders as of right. It is irrelevant for the purposes of an appeal under Rule 307(a)(6) whether piecemeal appeals result, as the rule itself is an exception to the policy stated in Voss.

Further, Voss does not imply that a party could avoid the effect of the deadlines set forth in Rule 308 for filing appeals from interlocutory orders. Rather, Voss assumes that a permissive appeal has been properly filed, but that it might not be heard because it would result in piecemeal litigation.

Therefore, because this court does not have jurisdiction to review the circuit court orders of August 19, 1988, August 30, 1988, October 12, 1988, and November 2, 1988, the appeals from those orders are dismissed.

As to Frances’ appeals from the orders of February 1, 1989, denying her request for temporary or permanent custody of J.S. and granting permanent custody of J.S. to DCFS, she avers that as a “responsible relative” of J.S. under the Act, she was a party to the proceeding, pursuant to section 1 — 5(1) (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5(1)), and was entitled to an evidentiary hearing on her petition for custody of J.S.

The circuit court held on November 2, 1988, however, that while the Richkos were “responsible relatives” during the time they had temporary custody of J.S., the vacation of that temporary custody and its grant to DCFS terminated the Richkos’ status as responsible relatives, and the Richkos became “foster parents.” When DCFS removed J.S. from the Richkos’ home, they became “former foster parents,” having a right to be heard, but no longer parties to the proceeding.

Frances’ failure to properly appeal from this judgment, which determined her status as a nonparty and thus determined her accordant rights, renders that judgment final. “In general a party’s failure to timely appeal an order appealable under Rule 307(a) renders that order the law of the case and that part of the resulting judgment res judicata.” (Wolfe v. Mini Federal Savings & Loan Association (1987), 158 Ill. App. 3d 321, 324.) Therefore, when the February 1, 1989, and September 21, 1989, orders were entered, Frances had the same, but no greater, rights than any other former foster parent.

As a “previously appointed foster parent” at the time of the February 1, 1989, order, Frances had the “right to be heard by the court, but [did] not thereby become a party to the proceeding.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(2). See In re Jennings (1977), 68 Ill. 2d 125, 130.) She was not, therefore, entitled to an “evidentiary hearing,” and the circuit court’s order of February 1, 1989, is accordingly affirmed.

Likewise, Frances’ appeal from the order of September 21, 1989, granting to Lee and Christine custody of J.S. under the protective supervision of the Probation Department, pursuant to section 2 — 24 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 24), must also fail. As a former foster parent and nonparty to the proceeding, Frances had no right to discovery of or to controvert the contents of “the reports prepared for the use of the court and considered by it.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 22(2).) She had only the right to be heard, a right which she does not contend was denied.

Frances’ claim that the court erred in not holding a hearing to determine the fitness of Lee and Christine to care for J.S. is also without warrant. Frances relies on section 2 — 23(l)(a) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 23(l)(a)), which prohibits the restoration to any parent found by the court to have caused a child to be neglected or abused under section 2 — 3 (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3) without a hearing to determine that parent’s fitness to care for the child. J.S., however, was not found to be neglected or abused, and the section of the Act relied upon is therefore inapplicable to this case.

The assistant State’s Attorney, DCFS and J.S.’s guardian ad litem all stipulated that J.S.’s best interests would be served by a grant of custody to Lee and Christine under the protective supervision of the Probation Department, and the court had several reports before it, all indicating agreement with such a disposition. Accordingly, we find no reason to disturb the circuit court’s grant of custody to Lee and Christine under the condition it imposed on such custody, and its decision is therefore affirmed.

Finally, Frances appeals from the denial by the circuit court of her request for attorney fees resulting from the allegedly improper petition brought by Lee and Christine to exclude her from the September 21, 1989, dispositional hearing. The record, while indicating that a motion to exclude Frances was made, contains neither a copy of the motion nor any of the bases upon which it was advanced.

The appellant is obliged to present a complete record on appeal, “so the reviewing court will be fully informed regarding the issues in the case. A reviewing court will not consider anything which is not contained in the record.” (International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 564.) Without sufficient evidence that an improper petition warranting a grant of attorney fees to the Richkos was filed, this court has no alternative but to affirm the circuit court’s denial of Frances’ request.

The appeals from the orders of August 19, 1988, August 30, 1988, October 12, 1988, and November 2, 1988, are dismissed for want of jurisdiction. The orders of February 1, 1989, and September 21, 1989, are affirmed.

Appeal dismissed in part; affirmed in part.

HARTMAN and BILANDIC, JJ., concur.

       Judge Bilandic participated in the decision of this case prior to taking office as a supreme court judge.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY FUDGE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0807
    Opinion filed December 31, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Robert D. Glick, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial defendant Jeffrey Fudge was found guilty of possession of a stolen motor vehicle and sentenced to serve five years’ imprisonment. On appeal, defendant argues that his conviction must be vacated because the possession of stolen motor vehicle statute (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(a)(1)) violates due process and the guarantee of proportionate penalties. We affirm.

Defendant was charged by indictment with possession of a stolen motor vehicle (PSMV). Defendant argued at trial that the PSMV statute was unconstitutional and cited People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890, in support of his position. The trial court ruled that Bryant was not controlling and subsequently denied defendant’s motion in arrest of judgment. This appeal followed.

On appeal defendant argues that the PSMV statute is unconstitutional because it does not use a reasonable method to further or protect the State interest for which it was enacted. Defendant further contends that the offense of PSMV is a lesser included offense of theft and, therefore, imposition of a greater penalty violates the Illinois Constitutional requirement of proportionate penalties.

Section 4 — 103 of the Illinois Vehicle Code provides in part:

“Offenses relating to motor vehicles and other vehicles— Felonies, (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; ***
* * *
(b) Sentence. A person convicted of a violation of this Section shall be guilty of a Class 2 felony.” Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103.

In People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1225, the supreme court reversed the appellate court and held that section 4 — 103 of the motor vehicle code does not violate the due process and proportionate penalty clauses of the Illinois Constitution. The court found that section 4 — 103 applies to all persons, including organized motor vehicle thieves. The supreme court therefore concluded that the appellate court erred in determining that possessors of stolen motor vehicles are punished more severely than organized motor vehicle thieves. The court reached this conclusion because all persons who possess a stolen motor vehicle, including organized motor vehicle thieves, are punishable under section 4 — 103(b) of the Vehicle Code. (Bryant, 128 Ill. 2d at 456.) The court also concluded that the steady increase in the penalty provision for possession of a stolen motor vehicle was indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft. Bryant, 128 Ill. 2d at 457.

Since the supreme court has upheld the constitutionality of section 4 — 103 of the Vehicle Code, we reject defendant’s argument and affirm the judgment of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    LARRY G. McLAIN, Plaintiff-Appellant, v. WEST SUBURBAN HOSPITAL MEDICAL CENTER, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—0164
    Opinion filed December 31, 1990.
    Gene L. Armstrong, of Oak Park, for appellant.
    Winston & Strawn, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Larry G. McLain, M.D. (McLain), appeals from an order of the circuit court which granted defendant West Suburban Hospital Medical Center’s (West Suburban Hospital’s) motion to dismiss his complaint. On appeal, McLain contends that the trial court erred in dismissing his complaint. We affirm.

In March of 1985, Dr. Burt Beverly, a pediatrician with offices located in West Suburban Plaza adjacent to West Suburban Hospital, died suddenly. After Dr. Beverly’s death, McLain, a pediatrician who was at that time associated with McNeal Hospital, began negotiations with Beverly’s widow and Charles Bruhn, a West Suburban Hospital official, for the purchase of Dr. Beverly’s medical practice.

According to McLain, Bruhn advised him that his acquisition of Dr. Beverly’s practice and assumption of responsibility for the remaining term of the lease on Beverly’s West Suburban Plaza office would be beneficial to West Suburban Hospital because the office suite would remain occupied by a well-known local physician who would admit patients to West Suburban Hospital. On April 4, 1985, McLain met with Bruhn at West Suburban Hospital. According to McLain, during that meeting, Bruhn orally offered, on behalf of West Suburban Hospital, to make a gift of $21,000 to him to defray the costs associated with establishing his practice. This gift was conditioned upon McLain’s purchase of Dr. Beverly’s medical practice, assumption of the remaining term of Dr. Beverly’s office lease and application for a position on the medical staff at West Suburban Hospital. According to McLain, he orally accepted West Suburban Hospital’s offer.

Thereafter, on August 13, 1985, Norman B. Goodman, president of West Suburban Hospital, wrote McLain a letter in which West Suburban offered him an interest-free loan in the amount of $21,000. McLain executed a written acceptance of the loan agreement which provided, inter alia, that the loan was to be repaid in 12 equal monthly payments.

McLain initially made payments to West Suburban Hospital in satisfaction of the loan. McLain never protested or otherwise indicated any objection to making the payments. McLain, however, ceased making loan payments, and West Suburban filed suit on July 13, 1987, to recover the balance due under the loan agreement. As a result of that lawsuit, McLain and West Suburban entered into a settlement agreement whereby McLain paid the balance due on the loan. In addition, the parties entered into an agreed dismissal of the lawsuit with prejudice on October 13, 1987.

Thereafter, on March 1, 1988, McLain filed the present lawsuit in which he alleged that West Suburban Hospital breached its April 4, 1985, oral contract to give him $21,000. McLain alleged that after he had changed his position in reliance on the promised $21,000 gift by entering into a binding agreement to (1) assume responsibility for the remaining term of the lease; (2) purchase Dr. Beverly’s practice and (3) apply for staff privileges at West Suburban Hospital, he was advised that West Suburban Hospital would not make a gift of $21,000 to him, but would instead give him a $21,000 interest-free loan. McLain alleged that because he felt that he had no other viable option, he accepted the terms of the loan agreement. McLain further alleged that as a result of West Suburban Hospital’s breach of its contract to grant him $21,000, he suffered direct and consequential damages in the amount of $42,000.

West Suburban Hospital filed a motion to dismiss McLain’s complaint based on the doctrines of res judicata and collateral estoppel. Following briefing and oral argument, the trial court granted West Suburban Hospital’s motion to dismiss. This appeal followed.

The sole issue on appeal is whether the settlement and dismissal with prejudice of West Suburban Hospital’s lawsuit to recover payment on a written $21,000 loan agreement between the parties bars the litigation of McLain’s subsequent lawsuit for breach of an alleged oral contract for a gift of the same $21,000.

The doctrine of res judicata prohibits the relitigation of claims and issues that were raised or could have been raised by a prior action between the same parties or their privies which has been resolved by final judgment on the merits by a court of competent jurisdiction. (Hughey v. Industrial Comm’n (1979), 76 Ill. 2d 577, 582, 394 N.E.2d 1164, 1166; Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 153, 421 N.E.2d 278, 282.) The dismissal with prejudice of an action is an adjudication on the merits, since dismissal with prejudice is deemed to be as conclusive of the rights of the parties as if the matter had proceeded to trial and had been resolved by final judgment. (Morris, 96 Ill. App. 3d at 156.) The doctrine of collateral estoppel bars the trial of an issue that has been fairly and completely resolved in a prior proceeding. The doctrine applies when a party or someone in privity with a party participates in two separate cases and in the earlier case some controlling fact or question material to the determination of both cases has been adjudicated against one of the parties in the second case. Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.

In the present case, the initial action between these two parties was a lawsuit to enforce the August 1985 written loan agreement in the amount of $21,000. McLain failed to either contest the validity of the loan agreement or raise any of the defenses of detrimental reliance, breach of contract or unilateral modification, which he alleged in his March 1988 breach of contract lawsuit, in the initial action. However, all of the allegations raised by McLain in his subsequent lawsuit were matters within his knowledge at the time of the initial action which could have therefore been raised as a defense or counterclaim in the initial action. There is only one issue involved in the dispute between the parties, i.e., who is entitled to final possession of the $21,000 in dispute. There is only one $21,000 at issue between these two parties. Either the $21,000 should have been McLain’s gift or his debt. The issue was resolved when McLain admitted, in the initial action, that the $21,000 was a loan and paid it.

Since the dismissal with prejudice of the parties initial lawsuit, which resolved the issue of McLain’s liability for repayment of the $21,000 loan, was a final judgment on the merits, it acts as a bar to litigation on the issue of an alleged prior oral contract to make a gift of the same $21,000. We therefore conclude that the trial court did not err in dismissing McLain’s complaint.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD ACKLIN, Defendant-Appellant.
    First District (4th Division)
    No. 1—80—2320
    Opinion filed December 31, 1990.

      Michael J. Pelletier and James Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Marilyn F. Schlesinger, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, Ronald Acklin was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and concealment of a homicidal death (Ill. Rev. Stat. 1979, ch. 38, par. 9— 3.1). Finding the crimes committed to be exceptionally brutal and heinous indicative of wanton cruelty, defendant was sentenced to life imprisonment.

On appeal, defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial when the State revealed prior inconsistent statements made by two witnesses; (3) whether he was denied a fair trial when the State made certain arguments allegedly not supported by the evidence; (4) whether his sentence must be reduced due to the disparity in sentencing between him and his codefendant, Charles Williams; (5) whether one of the two murder counts must be vacated; and (6) whether he was improperly sentenced to natural life imprisonment.

We affirm in part and vacate in part and modify.

At trial, the evidence established that on January 5, 1979, the frozen body of Barry Nance was found on top of a garbage can in an alley in Chicago. The body had been wrapped in plastic and two blankets. The victim had sustained numerous marks of violence to the body, including a fractured jaw, severe lacerations indicative of tears made to the body by a blunt instrument, and incised wounds indicative of cuts made to the body by a sharp instrument. It was determined that the cause of death was due to a severe cranial cerebral injury, in association with a compound fracture of the jaw, and numerous wounds to the body. At the time of death, Barry Nance was 21 years of age.

On January 3, 1979, at approximately 10 p.m., Williams and Nance arrived at defendant’s house. Defendant, at that time, was living in a basement apartment with his girlfriend, Frances Wright. The house was owned by Frances’ sister, Nancy. Nancy also resided in the house with her five children, including Dennard Coats. Defendant, Nance and Williams remained in the basement, while Frances and her nephew, Dennard, went upstairs to put the younger children to bed and to watch television.

Frances testified that while watching television, she heard “loud talking, banging into things [and] so forth” emanating from the basement. This continued until defendant received a telephone call, approximately 15 minutes after the fracas had begun in the basement. The telephone call that defendant received was concerning a woman in Alabama who was expected to give birth, imminently, to his child. According to Frances, defendant conversed with the woman or the woman’s sister approximately 15 or 20 minutes. The call was taken in the upstairs kitchen.

Defendant then returned to the basement and, shortly thereafter, another argument ensued. Approximately 30 minutes later, defendant received a second telephone call regarding the impending birth of his child. This conversation also lasted 15 minutes. Frances testified that defendant then “ran back downstairs all of a sudden, and [she] heard some shouting, and [she] heard Ron say leave him alone, let him up.” Williams then made a derogatory remark. For the next 90 minutes it became quiet in the basement.

Defendant then received a third telephone call. He was informed that the woman in Alabama had just given birth. After the call, defendant prepared some food which he ate while upstairs in the kitchen. When defendant finished eating, he went back downstairs to the basement. He then announced that Nance and Williams must have gone home. As Frances did not see Nance and Williams leave, she inferred that they left the premises through the basement door.

Defendant then told Frances to make some coffee while he straightened up the basement. Defendant remained in the basement for five minutes before coming upstairs. Approximately one minute later, Williams entered the kitchen through the living room on the first floor of the house.

Defendant and Williams drank coffee and then Williams left the house. Frances and defendant then retired to their basement apartment. Frances testified that she noticed a liquor bottle on the floor of the basement and that the basement was “kind of messy.”

Dennard Coats testified that he heard the three men arguing in the basement about an ashtray. He heard both defendant and Williams tell Nance to pick up the ashtray. When Dennard went downstairs to inform defendant that he had a second telephone call, he noticed approximately 15 or 20 drops of blood by the basement bedroom door. Dennard also testified that while defendant was talking on the telephone, he twice heard Nance plead for his life. Dennard immediately told defendant what he had heard. Defendant proceeded to hang up the telephone and ran downstairs to the basement. Dennard testified that he also heard defendant tell Williams to “[l]et him up.”

Subsequently, Dennard went back downstairs to tell defendant that he had a third telephone call. Dennard heard defendant and Williams talking but he did not hear Nance. Dennard also testified that he observed defendant and Williams drinking coffee prior to Williams’ departure. He did not, however, see Nance leave the house.

Chicago police officer Thomas Bennett testified that he arrived at defendant’s house on the afternoon of January 8, 1979. Upon entering the basement, Officer Bennett observed a bloodstained chair; bloodstained boots; three liquor bottles with blood on them; a pair of panty hose with embedded bone particles in them; a pair of gloves and a man’s shirt found in a hole in the basement floor; a bloodstained ax; bloodstained wire cords; bloodstained sanitary tubs and a tray; and a bloodstained wrench. A meat cleaver and Mason hammer were found in the kitchen wrapped in plastic underneath a bag of garbage. At trial, Officer Bennett identified a picture of the yard in the back of defendant’s house. The picture revealed depressions in the snow which either began or terminated at the back door of the basement.

Officer Bennett also testified that Frances told him that defendant informed her that he and Williams were going to walk Nance home; that the parties left by the basement door as she did not see them leave; that defendant and Williams both came back into the house through the front door; that defendant was wearing Nance’s gloves; and that she saw a meat cleaver on the dresser in the basement bedroom.

According to Officer Bennett, Dennard told him that defendant had ordered him to wipe the blood from an ax; that he had seen blood all over the basement and what appeared to be a body wrapped in a blanket; and that he had observed defendant and Williams dragging the wrapped body out through the basement door.

After hearing all of the evidence, the jury found defendant guilty. He was sentenced to a term of natural life. Williams was sentenced to 60 years’ imprisonment. Williams’ conviction was affirmed in People v. Williams (1983), 113 Ill. App. 3d 49. Defendant filed a timely notice of appeal but the case was dismissed for want of prosecution in October 1981. In 1988, this case was reinstated but dismissed a second time for want of prosecution in May 1989. This case was again reinstated in March 1990.

The first issue defendant presents is whether he was proved guilty beyond a reasonable doubt. Defendant argues that even when viewing the evidence in the light most favorable to the State it was not shown that he actually participated in the crime. Defendant maintains that he was talking on the telephone while Williams and Nance were arguing in the basement. He also contends that testimony from Frances and Dennard indicates that Williams and Nance were alone for a final time before they left defendant’s house. Moreover, defendant contends that even if Nance was murdered at his house, only a suspicion would be created that he was involved but not that he was guilty of murder. We disagree.

Whether the evidence is direct or circumstantial, the standard for reviewing the sufficiency of the evidence in criminal cases is proof beyond a reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) The critical inquiry in determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a jury could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49.) It is not the function of a court of review to retry the defendant. (People v. Phillips (1989), 127 Ill. 2d 499, 509.) It is the function of the trier of fact to determine the guilt or innocence of the accused; a court of review will not reverse the conviction unless the evidence is so improbable as to justify a reasonable doubt of guilt. (Phillips, 127 Ill. 2d at 509-10.) Determinations of credibility and weight given to the testimony of witnesses are exclusively within the province of the trier of fact. People v. Collins (1985), 106 Ill. 2d 237, 261-62.

The evidence presented in the instant case was not so unreasonable or improbable as to warrant reversal of this case. A review of the record in the light most favorable to the State reveals that Nance was tortured with various instruments. An ax, a hammer, a meat cleaver, and panty hose embedded with bone fragments were found in the house. A bloodied cord was found near a chair in the basement, leading to the inference that Nance may have been tied to the chair while being brutalized.

When the body was discovered, a rubber inner tube was wrapped around the deceased’s neck and knees, rendering him into a fetal position. Linear incised wounds were found all over the deceased’s body, including the upper and lower extremities, buttocks, and head area. Further, there is some question as to whether Nance was still alive when he was left atop a garbage can in below zero weather.

Frances testified that she did not actually see Nance leave. She was told by defendant that Nance had left with Williams. Dennard also testified that he had not seen Nance and Williams leave the house. Officer Bennett testified that he saw imprints in the snow leading to or from the basement door.

Dennard also testified that when he went to notify defendant of the second call, he noticed drops of blood by the basement bedroom door. Conceivably, Nance’s brutalization had at least been in progress at that time. After this second call, Nance was still alive as Dennard heard defendant, Williams, and Nance arguing. When Dennard went downstairs to notify defendant of the third call, he did not hear Nance’s voice. It is, therefore, not unreasonable or improbable for a jury to infer that the murder took place after the second telephone call while defendant was in the basement. Under the circumstances of this case, we find that the State proved defendant’s guilt beyond a reasonable doubt.

Moreover, as the State notes, even though there was no direct evidence of the actual injuries defendant inflicted, defendant was tried under an accountability theory. A defendant may be held accountable for an offense if he was aware of its commission even though there was no actual participation. (People v. Jones (1989), 184 Ill. App. 3d 412, 431; People v. Scherzer (1989), 179 Ill. App. 3d 624, 639.) “[T]he trier of fact may consider factors such as the defendant’s presence during the crime, acts performed after the commission of the crime[,] and flight from the scene as evidence of accountability.” (People v. Williams (1988), 176 Ill. App. 3d 73, 77.) The slightest evidence upon a theory of accountability would warrant giving the jury an accountability instruction. People v. Jarvis (1987), 158 Ill. App. 3d 415, 430.

In the instant case, we find that even assuming, arguendo, defendant did not participate in the commission of the crime, it is not unreasonable to infer that, at the very least, he was present and did not prevent the incident from occurring. Furthermore, as the State notes, defendant did not notify the authorities of Nance’s brutalization and there was an attempt to conceal certain weapons later discovered at the house. We, therefore, find defendant’s argument with respect to this issue without merit.

Next, defendant contends that he was denied a fair trial when the State used prior inconsistent statements to impart substantive evidence, rather than to impeach certain witnesses. Specifically, defendant refers to the testimony elicited from Officer Bennett concerning the statements made to him prior to trial by Frances and Dennard. Contrary to Frances’ in-court testimony, she informed Officer Bennett that defendant said that he and Williams were going to escort Nance home; that all three men left by the basement door; she saw defendant wearing Nance’s gloves when he and Williams returned to the house; and that she saw a meat cleaver and a hammer on her dresser in the basement the following morning.

At trial, Frances testified that defendant told her that Williams must have taken Nance home and that defendant remained with her at the house until they retired. There was no testimony that she saw defendant wearing Nance’s gloves or that she found a meat cleaver in the basement.

Dennard’s testimony was also impeached. He informed Officer Bennett that defendant told him to wash blood from an ax; that he saw blood everywhere in the basement and a body wrapped in a blanket in the basement; and that defendant and Williams dragged the body out of the house through the basement door. Defendant also notes that the State, in closing argument, pointed out the discrepancies between the direct testimony and the prior inconsistent statements of Frances and Dennard.

Prior inconsistent statements are admissible for the limited purpose of impeachment. (People v. Smith (1984), 102 Ill. 2d 365, 374.) Although the credibility of a witness may now be attacked by any party (87 Ill. 2d R. 238), at the time of trial the long-standing rule prohibiting the impeachment of one’s own witness was still in effect. (People v. Nowak (1979), 76 Ill. App. 3d 472, 478.) Frances and Dennard were, therefore, called as the court’s witnesses. “Where a witness has testimony material to the issue, where his veracity is questionable, and where there might otherwise be a miscarriage of justice, the court may call that witness as a court’s witness. *** A court’s witness may be impeached as any other witness.” (People v. Pastorino (1982), 91 Ill. 2d 178, 191.) The purpose of impeachment is to adversely affect witness credibility not to impart or establish the truth of the impeaching evidence. People v. Bradford (1985), 106 Ill. 2d 492, 499.

The court’s decision to allow the State to call these witnesses as court witnesses is not challenged by the parties. Defendant argues that their testimony was elicited under the guise of impeachment but the actual purpose was to impart the prior inconsistent statements to the jury as substantive evidence. We disagree.

Prior to the witnesses’ testimony, the court granted defendant’s motion to limit the testimony to only those matters which directly related to the alleged inconsistencies and that the jury be admonished that the statements were being admitted for the limited purpose of impeachment. The court then proceeded to admonish the jury on three separate occasions. Where the impeachment is not extraordinarily long or repetitious and the court clearly cautions and instructs the jury to limit its consideration of the impeachment, the jury may consider such evidence. (People v. Paradise (1964), 30 Ill. 2d 381, 385.) We are not persuaded that the impeachment was improper or that it was used as substantive evidence, as the impeachment was not extremely repetitious and the court admonished the jury three different times.

Moreover, even assuming, arguendo, there was error in allowing the impeachment, we do not find the elicited testimony to be pivotal in finding defendant guilty. As previously determined, the evidence was sufficient to warrant a finding of defendant’s guilt beyond a reasonable doubt notwithstanding the witnesses’ inconsistent statements.

Next, defendant contends that he was denied a fair trial when the State, in closing arguments, made certain remarks which were not supported by the evidence presented at trial. Defendant refers to the portions of the State’s argument that Nance’s blood type matched the blood found on certain items in the house, including an ax. This argument was based upon the stipulation of a crime analyst which consisted of descriptions of the items found in the house and the blood type found on each of the items. However, defendant argues that the State did not establish a chain of custody that the items tested were the same items found in the basement.

We find defendant’s contention to be without merit, as he agreed to the stipulation without objection. Further, defendant did not object to the State’s comments concerning this issue when made during the closing arguments. This issue is, therefore, waived. People v. Enoch (1988), 122 Ill. 2d 176, 186-88.

Defendant also now challenges the State’s remarks during closing arguments concerning a call made to the police informing them of the location of Nance’s body. Defendant contends that it was improper for the prosecution to infer that the call was made from someone who was in defendant’s house. Although the inference may be tenuous given the facts presented at trial, defendant failed to object when these remarks were made. This issue, therefore, is also waived for our consideration. People v. Enoch, 122 Ill. 2d at 186-88.

The fourth issue defendant raises is whether his sentence must be reduced to 60 years due to the disparity in sentencing between defendant and Williams. Williams was sentenced to a term of 60 years’ imprisonment. Defendant was sentenced to a term of natural life. “The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.” (Williams v. Illinois (1970), 399 U.S. 235, 243, 26 L. Ed. 2d 586, 594, 90 S. Ct. 2018, 2023.) This court will not alter the sentence imposed by the trial court absent an abuse of discretion, even though we may have imposed a different sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A trial court’s decision in the sentencing of a defendant is entitled to great weight and deference. People v. La Pointe (1981), 88 Ill. 2d 482, 492-93.

Defendant does not contend that the trial court abused its discretion in finding the crime indicative of wanton cruelty which would warrant a life sentence. Defendant argues that the disparity in sentencing was unwarranted. Defendant reasons that because Williams had a more significant criminal history, the trial court improperly gave him the greater sentence. Defendant alleges that he had only one prior criminal conviction, whereas Williams had three prior convictions. As the State points out, this is simply not true; defendant had four prior convictions.

Defendant also argues that the court’s finding, at sentencing, that Williams was not the “prime mover” and therefore received the lesser sentence, is unsupported by the record. The court, however, explained that its conclusion was based upon the evidence. An arbitrary disparity in sentences is impermissible. (See People v. Klim (1982), 92 Ill. 2d 490.) After reviewing the record, we do not find that this decision was reached arbitrarily so as to warrant reduction of defendant’s sentence. We will, therefore, defer to the court’s decision with respect to this issue.

Defendant next contends that one of the two murder counts must be vacated. The State concedes that defendant should have been convicted on only one count of murder. We agree. There was ample evidence to support defendant’s conviction on both of the murder charges. However, where there is the murder of only one person, there can be only one conviction. (People v. Mack (1984), 105 Ill. 2d 103, 136-37.) Therefore, the murder conviction (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1)) for intentionally and knowingly killing Nance will be affirmed. The other murder conviction (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(2)) will be vacated. (See Mack, 105 Ill. 2d at 137.) This does not, however, warrant a reduction in defendant’s sentence.

Finally, defendant claims that he must be granted a new sentencing hearing as he was improperly sentenced to a term of natural life for the offense of concealment of a homicidal death. The State also concedes that the order of sentence incorrectly states that the life term was imposed for both murder and concealment. We, therefore, find that the order of sentence must be modified. 87 Ill. 2d Rules 615(a), (b)(1).

For the foregoing reasons, we affirm defendant’s conviction, on the single count of murder, and his sentence; we vacate one of the murder counts; and we modify the order of sentence to reflect that a life term is imposed for the one murder count only. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed in part; vacated in part and modified.

LINN and JIGANTI, JJ., concur.