text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE HOLMES, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—1593
    Opinion filed September 8, 1992.

      James A. Graham and Martin B. Shapiro, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Lajauina Camel was found dead in the hallway of an apartment building located at 4327 West 18th Street in Chicago at approximately 6 a.m. on Saturday, April 11, 1987. After a bench trial, defendant Tyrone Holmes was convicted of her murder and of criminal sexual assault.

The victim’s mother, Arlena McKinley, testified that at about 3 a.m. on April 11, 1987, she attended a party at “Miss” Powell’s house, which was across the street from her residence. McKinley said she saw “Miss” Powell, Mr. Powell, Donald Blizzard, a woman named Theresa, defendant’s brother Lonnie Holmes, and Lajauina at the party; that she talked to Lajauina at the party because she wanted her to come home; and that she did not see any marks under her chin. McKinley left the party before 4 a.m. with Lonnie Holmes and went to a liquor store where she purchased a half-pint of “Martell” cognac, a 40-ounce bottle of “Olde English 800” malt liquor, and a package of “Benson & Hedges” and “Newport” cigarettes. She stated that upon returning to the party shortly after 4 a.m. she did not see any marks on her daughter’s neck or chin. After about 20 minutes had passed, McKinley left the party alone after asking Lajauina to leave with her, and arrived home at about 4:35 a.m. with the cognac, but left the beer behind, “probably” with her daughter. McKinley stated further that when she left the party her daughter was drinking with “Miss” Powell, Mr. Powell, Lonnie, a woman named Susan, Theresa, and possibly Theresa’s husband, Steve, and that “Miss” Powell had told her that she would see that someone walked Lajauina home. When asked if these were the people with whom her daughter kept company, McKinley answered that her daughter had a baby with defendant’s brother Randy. According to McKinley, her daughter knew defendant very well and for practically all of his life. She said that he referred to her daughter as “sis,” to her as “mama,” and that he had been friendly with her and her family.

Jacqueline Wilson, who lived on the third floor of the building where the victim was found, testified that she awoke at about 4:30 a.m. that morning when she heard a noise, but went back to bed after she looked outside her door and found no one there. She later testified that the noise was coming from an apartment on her floor and that it wasn’t unusual to hear noise in the building. She left her apartment at about 5 a.m. to meet her boyfriend after work and when she got to the hallway she heard arguing and a man’s voice which said, “Don’t shout out my name.” Wilson stated that when she got to the back stairway she could see the people walking downstairs, and that she could hear their voices, but that she couldn’t make out what they were saying because of the music coming from the apartment around the corner. She said that she followed them downstairs and that when she reached the bottom stair she smelled cigarette smoke. Wilson testified that she went to the back door and saw Lajauina, who was her friend, with a male, whom she identified as defendant. She testified further that defendant was holding Lajauina’s arm, that Lajauina had tears in her eyes and a fresh bruise that was not bleeding under her chin. Wilson testified that she asked defendant, who was smoking a Newport, for a cigarette. According to Wilson, who was standing close to defendant, there was a light on in the hallway and she had no trouble seeing his face. In addition, she testified that Lajauina tried to talk to her but defendant led her out the door by the arm and said, “Come on here.” She said that Lajauina and defendant, who was wearing a tan trench coat, walked through a muddy area toward some rowhouses. Wilson testified that she left through the front door, went to a pay phone to call her boyfriend, since she did not have a phone in her apartment, and then returned to her apartment using the front stairway and went to bed. She said that she did not see either of the couple with a bottle, and that she did not see a bottle as she went downstairs. She acknowledged that Lajauina was not striking out at or yelling at defendant, that he was not hitting or yelling at her, and that Lajauina did not ask her for help. Although Wilson testified that she thought her friend was in trouble, she admitted that she did not do anything about it.

Linda Burnett, who lived on the second floor of the building where the victim was found, testified that she had heard a thumping noise under her kitchen, which is adjacent to the stairway, at about 5:30 a.m. but that she continued to get ready for work. According to Burnett such noises were not unusual. She testified further that she discovered the body a few minutes after 6 a.m. as she was leaving for work, returned to her apartment and called the police.

Officer Frederick Thomas, an evidence technician with the Chicago police department, testified that the victim’s body was lying on the stairway landing between the first and second floors. He also testified that there was a corked bottle of “Old English brand 88” malt liquor in the comer of the stairwell a few feet from the body. He dusted the bottle for fingerprints. Thomas also recalled that he had inventoried a gold chain, which was found on the second-floor landing by the stairway door. He did not not recall whether he saw mud in the stairwell area, although he noted that there was mud outside.

Officer Thetris Patterson of the Chicago police department’s latent prints section testified that, in his opinion, one of the three prints found on the malt liquor bottle was made by defendant’s left ring finger. Only one of the remaining two prints on the bottle was suitable for comparison. According to Patterson, this print did not match defendant’s prints, was not compared to the victim’s prints and, although it was run through the Automated Fingerprints Identification System, it was never identified. He testified further that it is impossible to determine whether a print was made by a male or female, or how old it might be.

Chicago police department detective Gene Harris testified that he found the victim’s body lying on the back stairway landing between the first and second floors. He said that her blouse was pulled up under her breasts and that she was naked from the waist down, her blue jeans hanging from her left ankle. According to Harris, the victim had one red shoe on and the other was three steps above her on the stairway. He also testified that he found an empty large quart beer bottle about a foot and a half from her left foot, a broken gold chain, and noticed a muddy boot print with a serrated pattern on the carpet. Harris testified further that the victim had blood in her mouth and a cut or a bruise on the right side of her chin.

In addition, Harris stated that he interviewed Burnett, Wilson, McKinley, “Mrs.” Powell, and Lonnie Holmes. He said that McKinley told him she brought the beer and the cognac home with her after the party, and that he saw a half-pint of cognac and a bottle of “Olde English 800” malt liquor beer on her table. As a result of his investigation, Harris said that he eventually spoke to defendant over the phone at defendant’s sister’s house. According to Harris, defendant identified himself and stated that he would leave work and notify the police when he got home. Harris testified that when defendant arrived at his sister’s house, he arrested him on an outstanding warrant, brought him back to Area 4 headquarters, placed him in an interview room and advised him of his rights. He also said that he inventoried defendant’s clothing, which included: a tan raincoat, gray striped pants, brown work boots and underwear.

Harris testified further that defendant agreed to talk with him and told him that he knew Lajauina and that he last saw her between 4:30 and 5 a.m. at the party. Defendant also told Harris that he arrived at the party at about 3:30 a.m., fell asleep on the couch, woke up when he heard Lajauina talking with “Mrs.” Powell, got dressed and went to work. Harris then verified that defendant had been at work. He testified further that he confronted defendant with evidence that a female saw him with the victim at 5 a.m. in the hallway at 4327 West 18th Street. According to Harris, defendant told him that he met an old girl friend named Cora at a bar at about 2 a.m., went to her apartment, had sex with her, and left. He also told Harris that after he left he went to the party for his father, Mr. Powell, that Lajauina was at the party, that he fell asleep on the couch, woke up about 4:30, got ready and went to work. He told Harris that Lajauina caught up with him when he was on his way to the elevated train and asked him to go with her to Pookey’s house at 4327 West 18th Street to purchase some marijuana. Defendant told Harris that he gave her $10, but that he never went inside, and that while he was waiting outside, a black female approached him and asked him for a cigarette, but he told her he did not have one. Harris said that defendant told him that Lajauina returned without any marijuana because Pookey did not have any, that she gave him his money back, and that he went to work. He said that he last saw her outside the building and that he never went in.

Detective Ralph Vucko, who came on duty at 4:30 p.m., also spoke with defendant after advising him of his rights. Vucko testified that defendant told him he was in the area of 4327 West 18th Street on April 11, 1987, when he met the victim, that he walked her to the building and entered the ground floor, where he waited while the victim went somewhere. He said that while he was waiting a black female approached him, asked him for a cigarette and then left. He said that he talked to the victim, asked her if she wanted him to walk her home, and then left for work after she declined his offer.

Cora Flowers, the former girl friend of defendant, testified that she met defendant at the Cotton Club at 3548 West Cermak at about 1 a.m. that morning. She also testified that they left the club together at about 2:30 a.m. and went to her apartment. She said that defendant stayed about a half hour and that he asked her to have sex but she refused.

Cook County Deputy Chief Medical Examiner Dr. Edmond Donoghue testified that in his opinion the victim died as a result of strangulation. He testified that before performing the autopsy, he called in Dr. John Kenney to examine suspected bite marks on the victim’s body. Dr. Donoghue found evidence of external injury including bruises and/or scrapes on the victim’s neck, chin, eyebrow, right shoulder, right elbow, right forearm, right and left thighs, right knee, groin, lower back and right upper chest. He also found evidence of internal injury to the victim’s larynx, trachea, lungs, lower neck and upper back muscles, temple and brain. He testified that the victim had a blood-alcohol level of .369 milligrams per deciliter. According to Donoghue, 12 to 14 12-ounce cans of beer in the hour before death or 16 to 17 cans of beer in a three- to four-hour period would have raised the victim’s blood-alcohol percentage to that level. He also stated that a level of .420 milligrams per deciliter may be fatal. When asked whether Lajauina would have been able to walk, he answered, “That’s difficult to say. She might be able to walk, yes.”

Pamela Fish, of the Chicago police department’s crime lab, testified that she examined the victim’s blood and took swabs of the victim’s mouth, vagina and rectum. According to Fish, there was semen, but no sperm, in the victim’s vagina. The oral and rectal swabs were negative. She also analyzed a trench coat, a pair of pants, a pair of boots and a pair of underwear to determine if there was blood on them, but these items were not tested for the presence of semen or sperm. Blood was found to be present on defendant’s trench coat, pants and on the lace area of his boots; Fish could not, however, conduct any further tests due to the insufficient amounts present.

Dr. John Kenney and Dr. Lowell Johnson testified as experts for the State that certain marks on the victim’s body were bite marks inflicted by defendant. However, Dr. Larry Pierce and Dr. E. Stephen Smith testified as experts for the defense that the marks were not bite marks and that they were not inflicted by defendant. It is clear that all of these witnesses were qualified to testify as bite mark experts.

Defendant was sentenced to natural life in prison on the murder conviction and to 15 years’ imprisonment on the criminal sexual assault conviction.

I

Defendant’s first contention is that the trial court erred in denying his motion to dismiss for allegedly violating the speedy trial act (the Act). Section 103—5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 100—1 et seq.) provides:

“§103 — 5. Speedy trial, (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, *** or by an interlocutory appeal.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, *** or by an interlocutory appeal.
* * *
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.
(e) If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by sub-paragraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered pursuant to Section 118—1 of this Act ***; if *** such period of 160 days expires without the commencement of trial of *** any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant, *** or by an interlocutory appeal; provided, however, that if the court determines that the State had exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.” Ill. Rev. Stat. 1985, ch. 38, par. 103—5.

At the time of his arrest for murder on April 11, 1987, defendant, who had been released on bond, was awaiting trial on a robbery offense which occurred on January 2, 1987. On May 1, 1987, defendant filed a written trial demand which referred to his April 11, 1987, arrest. The State elected to proceed on the murder charge which was set for trial on October 3, 1988, and October 24, 1988, but the State had moved for a continuance on each occasion. On October 3, 1988, according to the State, or October 24, 1988, according to defendant, the State changed its election from murder to robbery. Defendant objected to the State’s change in election and noted that he was continuing his demand as to the murder charge. The judge stated, “The record will reflect your continued demand. I believe once the State has re-elected the demand no longer runs.” On November 15, 1988, defendant was tried and convicted of robbery, and on December 14, 1988, he was sentenced to three years’ imprisonment therefor. On March 15, 1989, the day set for trial on the murder charge, defendant filed a motion to dismiss for failure to comply with the speedy trial act. In denying the motion, the court held that subsection (e) applied even though there was not a demand on the other charges, that defendant did not have a right to pick what charges he would be tried on, that he was properly tried on the first charge within 120 days, and that a new term started at that time. Defendant’s trial for murder began on April 17, 1989.

Although defendant admits that the State has a legal right to change its election, he contends that it should not be allowed to do so in order to occasion delay. He claims that the State changed its election so that its expert would have time to revamp his findings in response to criticism by defense experts. He further asserts that technical evasions of the Act by the State will not be tolerated. See People v. Gooding (1974), 21 Ill. App. 3d 1064, rev’d on other grounds (1975), 61 Ill. 2d 298; People v. Hugley (1971), 1 Ill. App. 3d 828.

The State maintains that the Act does not require that it even announce an election as to which case it will try first, but simply requires that it proceed to trial on any of the pending cases within the time period prescribed by the Act. Although not cited by the State, the case of People v. Toolate (1977), 48 Ill. App. 3d 1038, supports its position. There, the court-stated:

“To hold that defendant was not chargeable with delay under these circumstances would be giving defendant an option to choose which charge to be tried on first. Nothing in the statute mandates such a result. On the contrary, a plain reading of section 103 — 5(e) is that the State need only bring defendant to trial on any one charge during the 120-day period when defendant is in custody on multiple charges.” Toolate, 48 Ill. App. 3d at 1042.

Because defendant has failed to show that he was first brought to trial on one of the charges after the initial time period prescribed by the Act had passed, we hold that the State did not violate the Act by changing its election.

Defendant also maintains on the authority of Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, that he was deprived of his sixth amendment right to a speedy trial by the State’s change of election. “Although the constitutional and statutory provisions address similar concerns, the rights established by them are not necessarily coextensive.” (People v. Garrett (1990), 136 Ill. 2d 318, 323.) “The main distinction between a violation under the statute and an alleged denial of a constitutional speedy trial right is the degree of proof. Under the statute, a defendant who has not been brought to trial within the required time is not required to show actual prejudice or prosecutorial misconduct. A Sixth Amendment speedy trial challenge, however, requires not only delay but also substantial damage to defendant’s ability to prepare for trial.” 5 L. Pieczynski, Illinois Practice §10.4, at 275 (1989).

Although defendant claims that the State’s change of election allowed its expert to completely revamp his findings, he admitted in oral argument before this court that despite such an alleged advantage in favor of the prosecution, he had ample time to prepare his case for trial. Therefore, we hold that defendant’s right to a speedy trial was not abrogated.

Defendant further claims on the authority of People v. Lawson (1977), 67 Ill. 2d 449, that the State’s late change in election denied him his right to due process. However, Lawson involved pre-accusation delay. In People v. Schroeder (1981), 102 Ill. App. 3d 133, 136, it was held that although post-accusation delay rising to the level of a violation of the constitutional right to a speedy trial can amount to a deprivation of due process in certain circumstances, the sixth amendment right to a speedy trial rather than Lawson applies to delays occurring after defendant is accused through arrest, indictment or complaint. Therefore, defendant’s first assignment of error must be rejected.

II

Defendant next charges that the court erred in finding that the State had shown that certain injuries found on the victim’s body were bite marks inflicted by him because he impeached the testimony of the State’s expert. In addition, he claims that the accuracy of the State’s expert’s findings was based on an assumption not supported by the record. Similarly, he also contends that the trial court erred in relying upon testimony about muddy shoeprints which it had previously excluded. Although defendant’s argument is not very clear, it appears that he raises these contentions as part of the more comprehensive argument that the bite marks and other evidence did not establish beyond a reasonable doubt that he was guilty of murder. Accordingly, we will examine these issues as we review all of the evidence presented at trial.

Regarding the alleged bite marks, the State’s expert, Dr. Kenney, testified that he used acetate overlays in making his initial comparison between defendant’s teeth and the victim’s injuries. He prepared the overlays by pressing the models of defendant’s teeth into high density Styrofoam and then hand-tracing the marks that were made. As a result, Dr. Kenney issued a report on May 5, 1987, in which he found that: (1) the injury on the right side of the victim’s jaw was a bite mark consistent with specific teeth from defendant’s upper plate of teeth; (2) the injury to the left side of the victim’s jaw was an abrasion and not a bite mark; and (3) the injury to the victim’s clavicle area was a bite mark consistent with the left side of defendant’s lower teeth: the left maxillary lateral incisor, left cuspid, left first bicuspid and left second bicuspid.

However, Dr. Kenney issued a later report in which he found that: (1) the injury on the right side of the victim’s jaw was consistent with defendant’s lower teeth; (2) the injury to the left side of the victim’s jaw was consistent with defendant’s upper teeth; and (3) the injury to the victim’s right clavicle area was consistent with the right side of defendant’s upper teeth: the right central incisor, right lateral incisor, right cuspid and the right first bicuspid. With respect to the injuries on the right and left side of the victim’s jaw, although he admitted that he had no way of knowing how the bite was inflicted, Dr. Kenney testified that the victim’s skin must have been manipulated 30 to 35 degrees to be consistent with his conclusion. He also testified that a portion of one of the defendant’s teeth made a mark which fell a millimeter or two beyond the maximum distance that defendant could open his mouth. Regarding the injury on the victim’s clavicle, Dr. Kenney testified that he did not find a corresponding mark made by defendant’s lower teeth. It was his opinion that defendant’s lower teeth may have hooked on the victim’s T-shirt thereby preventing a mark. Although defendant objected to this testimony on the ground that there was no way by which Dr. Kenney could possibly know whether or not that was the case, the court allowed the testimony. In addition, Dr. Kenney admitted that there was no bruising between the marks. Further, it is clear that Dr. Kenney was able only to identify similarities between the marks and certain of defendant’s teeth.

Dr. Kenney testified that he issued the second report after he discovered a photograph which was taken by the medical examiner’s office about three to six months after the first report was issued. Defendant notes that the photograph lacked the millimeter scale that Dr. Kenney used in his own investigation and which is routinely used by forensic odontologists. Dr. Kenney admitted he was aware that Dr. Smith, one of defendant’s experts, was involved in the case and that Dr. Smith had requested to see his work-up at the time that he took a second set of impressions of defendant’s teeth to be used in his second report. According to Dr. Kenney, the second set of impressions was made with a material that rendered more accurate results than that used for the first set of impressions. He also used more accurate photographic overlays rather than hand-drawn overlays for the second report. In addition, he measured how far defendant could open his mouth for the second report, which he did not do for the first.

Dr. Johnson, who also testified as an expert for the State, stated that his findings were consistent with Dr. Kenney’s final report. Although he reviewed Dr. Kenney’s materials, Dr. Johnson testified that he did not look at Dr. Kenney’s reports until after his own analysis was complete.

Scott Schlesser, a medical photography expert for the defense, testified that the radiographic or X-ray images used by the defense’s experts to compare defendant’s teeth with the marks on the victim was more accurate than the photographic images used by the State’s experts. Schlesser explained that when the image of a three-dimensional object is recorded onto two-dimensional space there is distortion. According to Schlesser, a radiograph is more accurate and contains less distortion than a photograph.

Dr. Pierce, another bite mark expert for the defense, testified that the injuries found on the victim’s body were not bite marks at all. With respect to the injuries on the victim’s jaw, Dr. Pierce said he had difficulty analyzing how the bite marks could have been inflicted in the direction that these marks made in the absence of a drag pattern, which is a scrape made by a tooth or some other object before it sinks into the skin. In fact, he noticed that the drag patterns went in the opposite direction of the alleged bite mark. According to Dr. Pierce, the injury on the right side of the victim’s jaw was clearly a puncture wound. He testified that the injury seemed to have a three-dimensional component and that it was deeper than the other wound. Dr. Pierce also testified that the injury to the left side of the victim’s jaw was not a bite mark because there was no pattern of abrasion. With respect to the injury to the victim’s clavicle, Dr. Pierce testified that the first problem was that there were only three marks in this area. That there were no other marks and especially that there were no other marks related to the same arch troubled him. In addition, although he noted that there are circumstances in which there are no marks made by the opposing (upper or lower) set of teeth, such as a single set of marks left on a hand after it struck someone’s mouth, he stated that there are usually marks made by both the upper and lower teeth. He testified that there was no evidence of marks made by the opposing set of teeth. Moreover, Dr. Pierce explained that it would have been physically impossible for defendant to have inflicted the mark because his head would have been in the way. He reached this conclusion after attempting unsuccessfully to place a model of a head in such a position that a bite mark could have been inflicted. He testified that he could not account for where the defendant’s lower jaw was in relation to the marks, or in what position his forehead and nose would have been in relation to the victim’s neck.

Furthermore, Dr. Pierce testified that even if the marks were caused by biting, they could not have been made by defendant’s teeth. With respect to the puncture wound on the right side of the victim’s jaw, Dr. Pierce explained that such marks would usually be made by the canine teeth, which are longer, and that defendant’s canine teeth, including the lower right canine, were worn down about even with the adjacent teeth. In addition, he testified that the marks were linear or curved slightly upwards whereas the defendant’s teeth curved downward. He also testified that the injuries were inconsistent with defendant’s buck teeth. He testified fiirther that the force of a bite causes bruising but that there was no evidence of bruising in this case. Finally, he also explained that in order for defendant’s teeth to have made the marks, his jaw would have to have been fully extended and therefore it would have been difficult for him to exert enough pressure to make the marks.

Dr. Smith stated that the injuries on the right side of the victim’s jaw were not bite marks. He explained that he saw a series of different types of injuries in that area and that they lacked the pattern of a bite mark. As to the injuries on the left side of the victim’s jaw, Dr. Smith was of the opinion that it was not a bite mark because it was linear and defendant’s teeth were curved. With respect to the injury to the clavicle area, Dr. Smith testified that as a result of his experimentation with models of heads, he concluded that it was simply impossible to get a head in the position necessary to make the mark as it occurred in this case. He also testified that even if the marks were bite marks defendant could not have inflicted them. As to the puncture wound, he stated that none of defendant’s teeth was pointed enough to inflict it. Dr. Smith was of the opinion that in order to inflict the injuries, defendant’s mouth would have to have opened over six centimeters, but that his mouth could open only 5.6 centimeters. He went on to point out that one of the victim’s false teeth was broken and that there was bruising around her lips. Although he could not say when the tooth had been broken, Dr. Smith thought these injuries were consistent with a blow to the mouth.

With regard to defendant’s argument that the State’s experts assumed facts not in evidence, the State maintains that Dr. Kenney’s opinion that defendant’s teeth caught on the victim’s T-shirt was a plausible explanation for the lack of lower teeth marks and that his opinion was supported by evidence which showed that the victim was wearing a T-shirt which was pulled up near her breast. Although it appears that Dr. Kenney was speculating that defendant’s teeth may have caught on the victim’s shirt in order to explain the lack of a corresponding set of marks on the clavicle injury, and assuming that the court erred in admitting such testimony, its ruling should not be reversed absent a clear showing that the trial court abused its discretion to the manifest prejudice of the defendant. People v. Wright (1991), 218 Ill. App. 3d 764, 771.

Moreover, regarding defendant’s argument that the State’s experts’ testimony was impeached, as the State points out, the credibility of an expert is a matter for the trier of fact to determine (People v. Peterson (1988), 171 Ill. App. 3d 730, 734), and if expert testimony is conflicting, the reviewing court should not substitute its judgment for that of the trier of fact. (People v. Racanelli (1985), 132 Ill. App. 3d 124, 129.) We note further that the ultimate issue is for the court and not the expert to decide. People v. Brown (1982), 110 Ill. App. 3d 1125, 1129-30.

Regarding the muddy shoe prints, Officer Harris testified:

“A. Yes, there was [sic] muddy shoe prints on there, fresh muddy shoe prints, muddy shoe prints on the carpet and it appeared to be made by some type of serrated boot.
MR. GRAHAM: Objection to appeared to be, Judge.
THE COURT: Sustained.
MR. GRAHAM: Ask that it be stricken.
THE COURT: It will be stricken.
BY MR. HOWARD:
Q. Did the muddy footprint you saw on the carpeting have any type of pattern impression to it?
A. Yes, it had a serrated pattern. There was like you would see a mark and it would be a break, then another mark, then a
break in it, like a traction-type boot.
* * *
A. Yes, this picture shows the muddy footprints, shoe prints that was on the carpet in which we — I looked at the boot and it matched up with the boot that Tyrone was wearing.
MR. GRAHAM: Objection.
MR. SHAPIRO: Objection.
THE COURT: Sustained.
MR. GRAHAM: I ask that it be stricken.
THE COURT: It will be stricken and not considered.”

Although the court struck portions of Harris’ testimony, defendant claims that the following statements made by the court in announcing its verdict demonstrate that it considered this evidence in convicting defendant:

“The court in making its decision is perfectly aware of the conflicting expert testimony but I am also aware of the other evidence in this Court in this case and clearly this case does not fall or rise solely on the fact of whether these were bite marks or not bite marks. There are [sic] other evidence including finger print evidence and even a muddy foot print.”

Defendant notes further that no cast impressions were taken, that defendant’s boots were not taken to the scene and compared with the prints, and that no mud samples were taken. In addition, Harris made no mention of the muddy prints in his report. Defendant claims that the court’s exclusion of the evidence led the defense to believe that the court was not considering the evidence and therefore the defense did not refute it.

However, as the State points out, the trial court in a bench trial is presumed to have considered only competent evidence (People v. Shaw (1981), 98 Ill. App. 3d 682, 686-87), and in order to rebut this presumption, there must be an affirmative showing on the record that the court actually used the improper evidence. (People v. Perez (1983), 115 Ill. App. 3d 446, 451.) The State maintains that there was ample properly admitted evidence about the prints on which the trial judge properly relied.

In this case, it is clear that Harris was not qualified to testify about the identity of the footprint. However, it also clearly appears that the judge excluded only the testimony regarding the identity of the print, but not the fact of the print itself. Because defendant has not affirmatively shown that the court considered the testimony regarding the identity of the shoeprint, we must engage in the presumption that it did not.

Turning to the larger question of whether the evidence was sufficient to convict defendant, he asserts that in order to convict on the basis of circumstantial evidence, the proof must produce a reasonable and moral certainty that the accused and no one else committed the crime. (See People v. Butler (1963), 28 Ill. 2d 88; People v. Ware (1980), 82 Ill. App. 3d 297; People v. Donahue (1977), 50 Ill. App. 3d 392.) However, as the State points out, this is no longer the standard. Whether the evidence of the crime is direct or circumstantial, the standard of review is the same. (People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Acklin (1990), 208 Ill. App. 3d 616, 621, appeal denied (1991), 137 Ill. 2d 666.) The test for determining the sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, the court can conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Herrett (1990), 137 Ill. 2d 195, 203.) We further note that it is not the function of a reviewing court to retry defendant. People v. Eyler (1989), 133 Ill. 2d 173, 191, cert. denied (1990), 498 U.S. 993, 112 L. Ed. 2d 550, 111 S. Ct. 215.

Defendant claims that the trial court in this case gave little or no insight into its thinking; it found both sets of experts credible and said that it came to its own conclusions. In announcing its verdict the court stated:

“The Court has in great detail gone over the testimony and in great detail gone over each of the exhibits ***. The Court has gone over *** this evidence and these exhibits on Friday before leaving this building, as well as starting at 7:30 this morning. *** The Court wondered in its own mind how experts, and clearly they were all experts in the field, could come up with such different conclusions. The Court is now satisfied in its own mind as to why there could be such a difference.
The Court has conducted every possible observation with the evidence, *** and the Court has come to its own conclusions.
Based on the evidence *** the Court believes that the State has proven the defendant guilty beyond a reasonable doubt as to the charge of murder, the charge of sexual assault, as well as the charge of felony murder. The court in making its decision is perfectly aware of the conflicting expert testimony but I am also aware of the other evidence in this Court in this case and clearly this case does not fall or rise solely on the fact of whether these were bite marks or not bite marks. There are [sic] other evidence including finger print evidence and even a muddy foot print.
In addition to that, it is satisfied that experts can differ, especially when you are dealing with photographs when taken of a two dimensional object or of a three dimensional object of what the human body is and especially when you are dealing with various degrees of that.
This Court is satisfied that the teeth marks — and I do believe that they are teeth marks — were made by the defendant. The Court is also well [sic] that the teeth are also dimensional [sic]. ***
The Court has considered, and I am convinced beyond a reasonable doubt, that the defendant is the perpetrator and did commit these crimes.”

We are unaware of a requirement that the trial court must offer insight into its thinking, and even assuming that there was such a requirement, we find that the court gave sufficient reasons for its decision.

Defendant relies on the authority of Butler, in which the court reversed defendant’s conviction where the direct evidence was confused and conflicting on several vital questions of fact, and where the testimony, at best, established only that the defendant was present with three other persons all of whom had an equal opportunity to commit larceny. (Butler, 28 Ill. 2d at 92.) Although he acknowledges that the court also cited the shoeprint, and fingerprint evidence, defendant relies on the authority of People v. Donahue (1977), 50 Ill. App. 3d 392, in which the court reversed a conviction on the ground that the only evidence was a fingerprint of the defendant in the apartment where the murder was committed. According to the court, fingerprint evidence is sufficient evidence of defendant’s identity if the print could only have been made at the time of the crime. Donahue, 50 Ill. App. 3d at 393-94; see also People v. Ware (1980), 82 Ill. App. 3d 297.

In this case, the expert testimony regarding the alleged bite marks was sharply conflicting. With respect to the muddy shoeprint, our supreme court has recently reiterated that “ ‘evidence of shoe-prints has no legitimate or logical tendency to identify an accused as the perpetrator of a crime unless the circumstances support this triple inference: (1) That the shoeprints were found at or near the place of the crime; (2) that the shoeprints were made at the time of the crime; and (3) that the shoeprints correspond to shoes worn by the accused at the time of the crime.’ (Emphasis added.) [Citation.] These three circumstances *** test the weight to be given shoeprint evidence.” (People v. Campbell (1992), 146 Ill. 2d 363, 381.) According to the Campbell court, the number of similarities found between a test print and the defendant’s shoe goes to the weight of the evidence and therefore the question of whether there is a sufficient number to make a positive identification is for the trier of fact. (Campbell, 146 Ill. 2d at 384-85.) In the absence of expert testimony linking the muddy print to defendant, we find that it carries little weight. Similarly, we note that the evidence of blood on defendant’s clothing was of little moment because the serologist was able to conclude only that it was human blood. Nevertheless, even though our opinion as to the inferences to be drawn from the evidence in this case might differ from those made by the trial court, we conclude, in viewing the evidence in the light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore, we reject this contention of error.

Ill

Defendant also maintains that the State failed to prove beyond a reasonable doubt that he was guilty of criminal sexual assault. In support of this contention, defendant argues that the State presented evidence showing that the victim was found naked from the waist down and that semen but no sperm was found in her vagina. He notes further that there was no trauma or bruising to the victim’s vagina, uterus, fallopian tubes or ovaries, and that due to the victim’s blood-alcohol level it was questionable whether she would have been able to walk. Defendant asserts that no other evidence was presented on the issue of criminal sexual assault and therefore there was an insufficient amount of evidence to convict him. The State responds that taken as a whole the circumstantial evidence established defendant’s guilt of criminal sexual assault beyond a reasonable doubt.

As previously noted, the State is correct in its assertion that the reasonable hypothesis of innocence standard of review cited by defendant (People v. Widmayer (1948), 402 Ill. 143) is no longer available in Illinois. Instead, the test for determining the sufficiency of direct or circumstantial evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, the court can conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Herrett (1990) , 137 Ill. 2d 195, 203; People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Acklin (1990), 208 Ill. App. 3d 616, 621, appeal denied (1991) , 137 Ill. 2d 666.

Pursuant to section 12 — 13(a)(l) of the Criminal Code of 1961, an accused commits criminal sexual assault if he or she commits an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(l).) Further, section 12 — 12(f) provides that sexual penetration means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).

The State emphasizes that the evidence showed that the victim’s blouse was pulled up, that she was naked from the waist down, that there was mud on the left side of her abdomen and on her inner thigh, that there were bruises on her thighs and groin and that there was semen present in her vagina. According to the State, Illinois courts have repeatedly upheld convictions for sex offenses based on circumstantial evidence similar to that found here. See People v. Murdock (1971), 48 Ill. 2d 362, cert. denied Murdock v. Illinois (1971), 404 U.S. 957, 30 L. Ed. 2d 274, 92 S. Ct. 324; People v. Fletcher (1976), 40 Ill. App. 3d 537; People v. Mackins (1974), 17 Ill. App. 3d 24, cert. denied sub nom. Morrow v. Illinois (1975), 419 U.S. 1111, 42 L. Ed. 2d 808, 95 S. Ct. 786.

In Murdock, the victim was found on a bed with her pajama bottoms hanging on her lower right leg. Although there were no bruises or other indications of trauma to the victim’s thighs or vagina, and no traces of skin, hair or fibers were found under her finger nails, her left eye was blackened and there were numerous abrasions on her neck. The pathologist found that the victim had recently engaged in sexual intercourse and had consumed enough alcohol to be in a state of near intoxication. The cause of death was strangulation. (Murdock, 48 Ill. 2d at 364.) The court stated that the defendant’s testimony showed that he was on the premises and committed the crime of burglary, and it found that the evidence in the record was sufficient to support the judgments on the other crimes charged. Murdock, 48 Ill. 2d at 367-68.

Likewise, in Fletcher, the victim, who was bruised and whose skull was fractured, was found naked from the waist down and her brassiere was cut in front. The cause of death was strangulation. A vaginal swab revealed the presence of intact sperm. (Fletcher, 40 Ill. App. 3d at 538.) There were bloodstains on the bed in the trailer where the victim had been baby-sitting, pry marks on the outside of the rear door, and a classified ad for a 1962 Chevy II was found on the floor. Some of the bloodstains were the same type as the victim’s blood. (Fletcher, 40 Ill. App. 3d at 540.) It was the opinion of an expert that a screwdriver found in the defendant’s possession made the pry marks on the trailer door. In addition, the defendant admitted that he cut out the ad found in the trailer. (Fletcher, 40 Ill. App. 3d at 540.) The court held that the facts supported a finding that the murderer was the one who committed indecent liberties.

In this case, we note that the semen found in the victim’s vagina was never identified. Nonetheless, as in Murdock and Fletcher, defendant’s responsibility for the sexual assault is closely related to his responsibility for murder. After reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could find all the elements of criminal sexual assault beyond a reasonable doubt. Therefore, defendant’s third contention of error fails.

IV

Defendant’s final assignment of error is that the trial court abused its discretion in imposing a sentence of natural life in prison without the possibility of parole; he therefore requests that this court reduce his sentence on the murder conviction to a term of 20 years’ incarceration. Defendant claims that the weight of mitigating factors present in this case, such as his limited criminal offense background, his consistent employment record and his potential for rehabilitation, demonstrate that the sentence was excessive. He further argues, on the authority of People v. Goodman (1981), 98 Ill. App. 3d 743, that the trial judge failed to set forth the reasons for the sentence with specificity. In Goodman, the court held that the record failed to demonstrate that the trial judge considered the appropriate criteria in imposing sentence because it did not contain any mention of mitigating factors. (Goodman, 98 Ill. App. 3d at 750-51.) Moreover, defendant claims that although the trial court never discussed his proclamation of innocence, its failure to justify its sentence indicates that it improperly relied on it in sentencing him. According to defendant, a more serious sentence may not be imposed merely because a defendant claims he is innocent at the time of sentencing. People v. Speed (1984), 129 Ill. App. 3d 348; People v. Byrd (1986), 139 Ill. App. 3d 859.

The State maintains, in light of defendant’s criminal history and his conduct in this case, that the trial court properly exercised its discretion in sentencing him. In support of this contention, the State notes that defendant’s criminal history consists of a finding of juvenile delinquency based on rape and a robbery conviction. The State argues further that there is a strong presumption that a trial court’s sentence is predicated on proper legal reasoning including consideration of any mitigating factors (People v. Partin (1987), 156 Ill. App. 3d 365, 373, appeal denied (1987), 116 Ill. 2d 571); and although it denies defendant’s assertion that the court considered his proclamation of innocence, it argues that the court had a right to consider it in light of the other facts in the case. (People v. Ward (1986), 113 Ill. 2d 516, 530, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) According to the State, a natural life sentence was available in this case based on: (1) the trial court’s finding of brutal and heinous conduct, and (2) the fact that the murder was committed during the commission of the felony offense of criminal sexual assault. Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1.

Although Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) grants this court the authority to reduce sentences, because the trial court is in the best position to determine an appropriate sentence, its sentence is entitled to great weight and will not be overturned absent an abuse of discretion. (People v. Felella (1989), 131 Ill. 2d 525, 541; People v. Cabrera (1987), 116 Ill. 2d 474, 494, cert. denied (1987), 484 U.S. 929, 98 L. Ed. 2d 257, 108 S. Ct. 297.) Nevertheless, as defendant notes, that the sentence imposed is within the confines of the sentencing statute does not necessarily preclude a reduction. People v. Steffens (1985), 131 Ill. App. 3d 141, 151.

Contrary to defendant’s assertion, we do not believe the mitigating factors demonstrate that the sentence was excessive. Moreover, in Goodman the court found that although there was considerable evidence in the record relevant to the possibility of defendant’s rehabilitation, there was simply no indication that the trial court actually considered the evidence in sentencing the defendant. (Goodman, 98 Ill. App. 3d at 751.) However, in this case, it is clear that the court considered mitigating factors at the capital punishment phase because, although it found that defendant was eligible for the death penalty, it stated that it felt there were mitigating factors which precluded its imposition. Further, if the record reflects that the trial court considered mitigating factors and rehabilitative potential at the capital punishment phase of sentencing, then the reviewing court may assume, unless shown otherwise, that those same factors were considered in determining the final sentence. (Goodman, 98 Ill. App. 3d at 752; People v. Smith (1980), 91 Ill. App. 3d 438, 451-52, rev’d on other grounds (1982), 93 Ill. 2d 179, cert. denied (1983), 461 U.S. 937, 77 L. Ed. 2d 312, 103 S. Ct. 2107.) Besides, in imposing defendant’s sentence, the court stated:

“The Court has considered all the personal information dealing with Mr. Tyrone Holmes, including his prior felony conviction, the finding of delinquency by the Court, and for what particular act was alleged [sic].
The Court is also considering the personal history of the Defendant, his educational background, his employment history, both past and present, before he was arrested, his family situation, his marital status, physical, mental health, his alcohol and drug history.
The Court, taking all this into consideration and the likelihood for rehabilitation, finds that the acts committed here, that this murder was accompanied by extremely brutal and heinous behavior which is indicative to myself of wanton cruelty.”

In sum, it is clear to us that the trial court considered mitigating factors in imposing sentence and that it stated its reasons for defendant’s sentence with sufficient specificity. Furthermore, there is no indication in the record that the judge imposed a more severe sentence because of defendant’s proclamation of innocence. Accordingly, we cannot conclude that the trial court abused its discretion in sentencing defendant to natural life in prison without the possibility of parole.

For all of the above-stated reasons, the decision of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    HAMID TAEB, Plaintiff-Appellant, v. RITCHEY CONSTRUCTION COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—3230
    Opinion filed September 9, 1992.

      Karling & Fleisher, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Glenn F. Fencl and Joseph B. Carini III, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Hamid Taeb appeals the trial court’s dismissal of his cause of action against defendant, Ritchey Construction Company (Ritchey), for his failure to exercise due diligence in obtaining service of process upon defendant pursuant to Illinois Supreme Court Rule 103(b). 134 Ill. 2d R. 103(b).

The issues before this court are: (1) whether the trial court erred when it granted defendant’s motion to quash service of summons; (2) whether the trial court abused its discretion when it dismissed the action on the basis of plaintiff’s failure to exercise due diligence in serving defendant; and (3) whether the trial court abused its discretion when it denied plaintiff's motion to vacate and reconsider its order quashing service of summons. We reverse and remand.

On December 21, 1986, Taeb injured himself when he fell into a hole while participating in the construction of a residential development in Oakbrook, Illinois. On December 15, 1988, Taeb filed an action to recover damages for personal injuries sustained as a result of the fall.

On March 29, 1989, Taeb requested that the Cook County sheriff serve Robert Basaillon, Ritchey’s registered agent for service of process. On April 3, 1989, the summons was returned to Taeb indicating that Iggy Lorefize, another agent of Ritchey, was served.

On June 15, 1989, Ritchey filed a special and limited appearance on the grounds that Basaillon was never personally served with a copy of the complaint and summons. On June 16, 1989, Ritchey filed a motion to quash service, alleging that its registered agent was never personally served. The motion was supported by Basaillon’s affidavit. On July 7, 1989, the court quashed the summons in favor of Ritchey. On March 2, 1990, the trial court appointed a special process server to serve summons upon Ritchey. Basaillon was served on March 16, 1990.

On April 4, 1990, Ritchey filed a general appearance, a jury demand, and a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619.) Ritchey alleged that Taeb’s complaint should be dismissed pursuant to Illinois Supreme Court Rule 103(b) because Theb failed to exercise due diligence in serving the company. 134 Ill. 2d R. 103(b).

On June 21, 1990, Theb filed a motion to vacate and reconsider the order of July 7, 1989, quashing service of summons and a motion to obtain a rehearing on the merits. On October 24, 1990, the trial court denied Taeb’s motions and granted Ritchey’s motion to dismiss. This appeal followed.

We will now address the issue of whether the trial court erred when it granted defendant’s motion to quash service of summons. Plaintiff argues that the trial court erred in quashing his service of summons because his service of defendant was proper pursuant to section 2 — 204 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—204.) Defendant maintains that the trial court properly quashed plaintiff’s service of summons because plaintiff served him after the two-year statute of limitations had elapsed. Ill. Rev. Stat. 1989, ch. 110, par. 13—202.

We must first determine whether defendant was initially served within the applicable statute of limitations. In Hernon v. E. W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 192, the Illinois Supreme Court held that where a plaintiff files an action for damages for personal injuries sustained as the result of an accident on a construction site, the four-year statute of limitations for injuries sustained as a result of acts or omissions relating to construction applies (Ill. Rev. Stat. 1989, ch. 110, par. 13—214(a)), rather than the two-year personal injury statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13—202). On the basis of the supreme court’s ruling in Hernon, we find that the four-year construction statute of limitations governs the present case. Plaintiff, therefore, served defendant within the applicable statute of limitations.

The question remains as to whether plaintiff served defendant in the proper manner. Section 2—204 of the Code of Civil Procedure provides:

“§2 — 204. Service on private corporations. A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—204.)

In the present case, the Cook County sheriff served Lorefize, an agent of defendant, instead of defendant’s registered agent for service of process. The Code of Civil procedure clearly permits a party to serve any agent of a private corporation found in Illinois, as well as the corporation’s registered agent for service of process. (Ill. Rev. Stat. 1989, ch. 110, par. 2—204.) Plaintiff in this case complied with the Code of Civil Procedure by serving an agent of defendant within the applicable statute of limitations. Accordingly, we find that the trial court erred in granting defendant’s motion to quash service of summons.

Plaintiff next alleges that the trial court abused its discretion when it dismissed his cause of action on account of his failure to exercise due diligence in serving defendant.

Supreme Court Rule 103(b) provides:

“(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” 134 Ill. 2d R. 103(b).

See also Hozian v. Sweeney (1990), 202 Ill. App. 3d 444, 449, 559 N.E.2d 1054, 1057.

The present case is also governed by Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 192. The plaintiff in Hernon filed an action to recover damages for personal injuries sustained when he fell while working at a construction site. The trial court granted defendant’s motion to dismiss on the basis that plaintiff’s action was not filed within the two-year statute of limitations for personal injuries. (Ill. Rev. Stat. 1989, ch. 110, par. 13—202.) On appeal, the Illinois Supreme Court held that the trial court erred in dismissing plaintiff’s action because the four-year construction statute of limitations governed his case. Ill. Rev. Stat. 1989, ch. 110, par. 13—214(a).

On the basis of Hernon, plaintiff in the present case had until December of 1990, four years after his injury, to serve defendant. After plaintiff’s initial service was quashed, plaintiff again served defendant on March 16, 1990. The service on March 16, 1990, was well within the applicable four-year statute of limitations. There is no evidence that plaintiff failed to exercise due diligence in serving defendant. Accordingly, we find that the trial court abused its discretion in granting defendant’s motion to dismiss this cause pursuant to Rule 103(b). 134 Ill. 2d R. 103(b).

Finally, defendant maintains that the trial court, did not abuse its discretion when it denied plaintiff’s motion to vacate and reconsider the trial court’s order quashing service of summons. We disagree. As we noted above, the trial court’s ruling on plaintiff’s motion to reconsider was erroneous because the record shows that plaintiff’s initial service of summons was proper. Accordingly, the trial court abused its discretion in denying plaintiff’s motion to reconsider.

For the aforementioned reasons, we reverse the trial court’s order quashing service of summons, its dismissal of the case for lack of due diligence and its ruling on plaintiff’s motion to vacate and reconsider its order quashing service of summons, and we remand this cause to the trial court for further proceedings consistent therewith.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.


author: JUSTICE McNAMARA

text:
    ROGER PEREZ et al., Plaintiffs-Appellees, v. CINDY KUJAWA, Defendant-Appellee (Insurance Company of Illinois, Appellant).
    First District (6th Division)
    No. 1—91—4109
    Opinion filed September 11, 1992.

      James M. Dupree, of Chicago, for appellant.
    Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon, Michael P. Concannon, and Jeffrey M. Burkart, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

A lienholder, Insurance Company of Illinois (ICI), appeals from an order of the circuit court of Cook County which reduced its medical payments subrogation lien by one-third under the “fund doctrine.” This litigation arose out of a February 1987 car accident in which plaintiffs, Roger J. Perez and Peter P. Sannasardo, were allegedly injured by an automobile driven by defendant, Cindy Kujawa. Perez was a named insured under an automobile policy by ICI that provided medical payments coverage. Defendant was insured by State Farm Insurance Company.

Plaintiffs originally consulted with attorney Ron Strojny, and Id's initial contacts regarding plaintiffs’ claim were with Strojny. By certified letter dated March 10, 1987, ICI notified Strojny as follows:

“[ICI] will represent its own subrogation interests as to medical payments advanced or to be advanced to the insureds. This Company, therefore, neither solicits your services to represent it in this regard nor will it recognize any lien upon the subrogation amount claimed under the ‘Fund Doctrine’ for services gratuitously given.”

The receipt indicates that Strojny’s office received the letter on March 11,1987.

On the same date, ICI informed defendant’s carrier, State Farm, by certified mail of its subrogation claim, and its determination to collect, and that ICI represented itself and did not retain the services of an attorney representing its insured. The letter further stated:

“This Company expressly disavows any authority, apparent or otherwise, for such counsel to conduct negotiations on its behalf. Counsel representing the insured has similarly been advised of our position in this matter.”

ICI at the same time informed both plaintiffs by letter that ICI had a subrogation lien regarding the medical payments.

On April 23, 1987, attorney Raymond P. Concannon, on plaintiffs’ behalf, filed suit against Kujawa. By letter dated May 11, 1987, to ICI, Concannon requested payment of $2,353 on behalf of “our clients and your insureds” for benefits under the medical payments provision. The letter stated that Concannon “claim[ed] an attorneys’ lien on these funds.” On June 8, 1987, ICI sent Concannon a letter reiterating the position it had taken in its letter to Strojny. On July 25, 1987, Concannon filed plaintiffs’ answers to interrogatories. On July 23, 1987, Concannon filed several discovery requests and responded to defendant’s affirmative defense and production request.

In July 1987, plaintiffs received $2,353 ($1,303 to Perez and $1,050 to Sannasardo) pursuant to the medical payments provisions of the insurance policy. In January 1991, Perez and Sannasardo settled with Kujawa’s insurer for $6,500 and $4,500, respectively. Subsequently, according to plaintiffs, Concannon offered ICI $869 and $700, respectively, representing two-thirds of the insurer’s subrogation lien. ICI refused the offer, demanding 100% of the subrogation lien.

On October 29, 1990, plaintiffs, through Concannon, filed a petition to adjudicate ICI’s subrogation lien by reducing the amount thereof by one-third. The trial court granted Concannon’s petition and reduced ICI’s lien from $2,353 to $1,569, relying upon Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 361 N.E.2d 1100. ICI appeals from this order.

The sole issue on appeal is whether ICI, the medical payments subrogee, is entitled to 100% of its subrogation lien.

The trial court applied the “fund doctrine” and ruled in plaintiffs’ favor. The “fund doctrine” is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from the creation of the fund. (Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 361 N.E.2d 1100.) In order to obtain a judgment for attorney fees for a subrogee under this doctrine, plaintiff must show that (1) the fund was created as a result of legal services performed by an attorney employed by him; (2) the subrogee did not participate in the creation of the fund; and (3) the subrogee benefited from the fund. (Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 470 N.E.2d 6; Powell v. Inghram (1983), 117 Ill. App. 3d 895, 453 N.E.2d 1163.) A plaintiff, however, may not recover attorney fees under the doctrine while rendering services for an unwilling recipient. Tenney v. American Family, 128 Ill. App. 3d 121, 470 N.E.2d 6.

Upon review, we conclude under these facts and circumstances that the equitable fund doctrine did not justify an award of attorney fees to plaintiffs out of the subrogation lien.

We find Tenney instructive. Tenney arose out of an automobile accident in which Barbara Spencer’s vehicle struck Robin Moore’s vehicle. Moore’s insurer, American Family Mutual Insurance Company, advised her by letter dated October 29, 1981, of its subrogated lien to the extent of medical payments advanced, and its intention to deal directly with Spencer’s insured on the subrogation claim. The carrier similarly informed Spencer and her insurer of its intention to collect. On February 25, 1982, Moore’s insurer “expressly notified [Harold Tenney, Moore’s attorney] that he was not to collect the subrogation claim.” (Tenney, 128 Ill. App. 3d at 122, 470 N.E.2d at 7.) Nine months later, Tenney filed suit on Moore’s behalf against Spencer, and the parties settled the claim shortly thereafter. Tenney then filed suit against American Family for legal fees and expenses incurred in recovering on the subrogation claim, and the trial court entered judgment in his favor. On appeal, this court held that the fund doctrine did not apply “[u]nder the circumstances” of the case. (Tenney, 128 Ill. App. 3d at 125, 470 N.E.2d at 9.) The court relied upon the fact that Tenney knew soon after he began representing Moore that the carrier did not want him to collect the subrogation claim and would not pay him if he did so. This court accordingly reversed the judgment which had been entered in favor of Tenney.

As in Tenney, ICI promptly and unequivocally informed Strojny, the attorney then representing plaintiffs, of its subrogation lien and disclaimed any intention to employ the insured’s attorney for this purpose. Nevertheless, six weeks later, Concannon filed suit on plaintiffs’ behalf. In our view, Strojny’s referral of plaintiffs’ case to Concannon after being so notified does not distinguish this case from Tenney. ICI initially dealt only with Strojny regarding plaintiffs’ claim, and it did not learn about the referral until Concannon filed suit on April 23, 1987.

Plaintiffs urge that the fund doctrine controls this case because Concannon filed suit before ICI sent him a “Tenney letter” on June 8, 1987. We find this position to be without merit. ICI timely and sufficiently informed Strojny of its intention to represent its own subrogation claim, and we believe that such notice was chargeable to Concannon. (See Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 304 N.E.2d 733.) In our view, equity would not be served by allowing plaintiffs’ employment of substitute counsel to subject ICI to attorney fees after ICI sufficiently notified Strojny and Kujawa’s insurer of its intention to represent its own subrogation interests. Under Illinois law, ICI had the right to file suit on its own behalf for its subrogation claim (Ill. Rev. Stat. 1989, ch. 110, par. 2—403; Tenney v. American Family, 128 Ill. App. 3d 121, 470 N.E.2d 6), and we believe that ICI’s efforts to preserve this right were sufficient under these facts. As in Tenney, it would be inequitable to apply the fund doctrine here.

Nor does Powell v. Inghram, upon which plaintiffs rely, require a different conclusion. In Powell, plaintiff signed a subrogation agreement with defendant insurance company, requiring her to pay the insurer for any recovery received by judgment or settlement. Plaintiff’s attorney filed suit several months before any correspondence with the insurance company, seeking the total amount of damages arising from the tort. Ten months later, plaintiff submitted a claim to her insurance company for medical expenses. The insurer notified plaintiff’s attorney of its subrogation lien, and disclaimed any intention of employing him to collect the lien. The insurer, however, requested the attorney to “protect [its] interests” in the event of a settlement. (Powell, 117 Ill. App. 3d at 896, 453 N.E.2d at 1164.) This court held that the insurance company’s refusal to hire the plaintiff’s attorney while seeking to benefit from his services was a “situation most suitable for the application of the fund doctrine.” Powell, 117 Ill. App. 3d at 900, 453 N.E.2d at 1166.

Powell differs significantly from this case. Unlike Powell, where the insurer requested plaintiff’s attorney to “protect” its interests, ICI here unequivocally advised plaintiffs and their attorneys, first Strojny and later Concannon, of its intention to pursue its own subrogation lien. ICI disclaimed any intention of employing plaintiffs’ attorney and promptly advised Strojny and defendant’s insurer. Moreover, unlike Powell, where the insurer informed plaintiff’s attorney that he would not be retained as counsel 10 months after plaintiff filed suit, ICI promptly notified plaintiffs’ attorney of its intention to pursue its own subrogation claim. Powell thus differs and does not support plaintiffs’ position.

We do not interpret Tenney to preclude application of the fund doctrine whenever an insurer notifies its insured or an attorney representing its insured of its intention to pursue its own subrogation interests. Nor do we so hold. Rather, under the circumstances of this case, as in Tenney, it would be inequitable to apply the fund doctrine.

Accordingly, we vacate that portion of the order of the circuit court of Cook County reducing ICI’s subrogation lien from $2,353 to $1,569, and direct the circuit court to enter judgment in favor of ICI for $2,353.

Order vacated in part and cause remanded with directions.

EGAN, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE EGAN

text:
      In re ESTATE OF VERA MALCOLM, Deceased (James Bailey et al., Plaintiffs-Appellants, v. John E. Dvorak, Ex’r of the Estate of Vera Malcolm, Deceased, et al., Defendants-Appellees).
    First District (6th Division)
    No. 1—91—1824
    Opinion filed September 11, 1992.

      Thomas Búcaro, of Chicago, for appellants.
    Vincent J. Pascucci, of Pascucci & Associates, of Chicago, for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, James Bailey, Daniel Bailey and Michael Bailey, appeal from an order dismissing their petition to contest a will. The sole issue is whether they had standing to contest the will.

Vera Malcolm died on November 26, 1989. In the two years before her death, she allegedly executed three separate wills. The plaintiffs are not heirs of the decedent but were legatees under all three wills.

Under the terms of the first will, dated April 7, 1988, Michael Bailey received a general legacy of $7,500; James and Daniel Bailey were named partial residuary beneficiaries; they were each to receive 30% of a residuary estate of approximately $675,000 and were bequeathed all the decedent’s tangible personal property. Under the second will, dated October 25, 1988, each of the plaintiffs was bequeathed a general legacy of $10,000. Under the last will, dated June 8, 1989, the plaintiffs received the same bequests that they did under the will dated October 25, 1988. For the rest of this opinion we will identify each will as the first, second or last will rather than by date.

On February 7, 1990, the executor of the first will, Michael Kane, petitioned for the probate of the first will. On the same day, John Dvorak, the executor of the last will, cross-petitioned for the probate of the last will. The trial judge entered an order granting Dvorak’s petition, thus admitting the last will to probate, and denied Kane’s petition to admit the first will.

On August 1, 1990, Showmen’s League of America (Showmen’s), a charitable organization, petitioned to contest the last will, alleging that the decedent was subjected to undue influence by the residuary legatees of the last will, neither of whom had been named a beneficiary under the previous two wills. Attached to the petition was a copy of the second will. Under the first will, Showmen’s was a 20% residual legatee; under the second will it was a 50% residual legatee; and under the third will it was to receive $25,000.

On August 1, 1990, the plaintiffs also filed a petition to contest the last will, alleging that the decedent was under undue influence when she executed the will. In response, the executor and residuary legatees of the last will filed a motion to dismiss the plaintiffs’ petition under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), alleging that the plaintiffs’ complaint was insufficient in that it failed to show that the plaintiffs were interested persons under section 8—1 of the Illinois Probate Act (the Act) (Ill. Rev. Stat. 1989, ch. 110½, par. 8—1), which provides in part that “any interested person may file a petition *** to contest the validity of the will.” The trial judge dismissed the petition but granted leave to file an amended petition.

The plaintiffs filed an amended petition on March 7, 1991, alleging that they were interested persons because they were beneficiaries under the first will. The executor and residuary legatees of the last will filed another motion to dismiss, again contending that the plaintiffs were not interested parties under section 8 — 1 of the Act.

The trial judge dismissed the plaintiffs’ amended petition. He said that he did so reluctantly. He based his decision on the case of In re Estate of Keener (1988), 167 Ill. App. 3d 270, 521 N.E.2d 232, although he expressed doubts about the language and practical effects of Keener.

The sole question before us is whether the plaintiffs are “interested persons” under section 8 — 1. An “interested person” is defined in section 1 — 2.11 of the Act as “one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, *** and the representative.” Ill. Rev. Stat. 1989, ch. 110½, par. 1— 2.11.

Illinois case law has established that legatees under a previous will are interested parties if they have “a direct, pecuniary, existing interest which would have been detrimentally affected by the probate” of a subsequent will. (Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 413, 401 N.E.2d 247, 255.) It is generally recognized that any person who would receive the same or less from a previous will is not detrimentally affected by the last will and, therefore, lacks standing to contest the last will. (See Annot., 39 A.L.R.3d 321 (1971); 80 Am. Jur. 2d Wills §909 (1975).) The position of the executor of the last will is that the plaintiffs would not be detrimentally affected by the last will because they will receive the same amount, $10,000, under both the last will and the second will.

The plaintiffs’ attorney has informed us that they anticipate contesting the second will. Both sides agree that the plaintiffs may not contest the second will before the last will is invalidated. The executor agrees that, in the absence of the second will, at least two of the plaintiffs, James Bailey and Daniel Bailey, would be interested persons because they would receive substantially less under the last will than they would under the first will. (Michael Bailey received more under the last will than he did under the first will.)

The case relied on by the executor in the trial court and in this court is In re Estate of Keener (1988), 167 Ill. App. 3d 270, 521 N.E.2d 232. In that case, a last will dated February 20, 1985, left $100,000 to one grandson and the remainder of her $1,500,000 estate to another. The wife of the grandson who received $100,000 filed a petition to contest the will. She had been named a beneficiary in a will executed in September 1983. She was not, however, a beneficiary in the will she was contesting or in three other wills and a series of codicils that the testatrix had executed between March 27, 1983, and February 20, 1985. The trial judge dismissed her petition to contest the will on the ground that she was not an interested person under section 8 — 1 of the Act.

A majority of the appellate court affirmed the dismissal order saying this:

“To interpret the statute as conferring upon the petitioner the status of an ‘interested person’ would also require the petitioner plead and prove facts attacking the validity of the four wills and several codicils drafted subsequent to the particular will naming her as a beneficiary. To interpret the statute in this manner would conflict with the orderly administration of estates and controvert the policy of the Probate Act. In interpreting statutes, consequences which are mischievous and absurd should be avoided, if possible. [Citation.] Statutes should be given a reasonable construction. [Citation.]” Keener, 167 Ill. App. 3d at 272.

The dissenting judge quoted this language of the majority and made this observation:

“That the petitioner may have burdensome and lengthy litigation ahead is really beside the point. It is certainly unjust if the ‘orderly administration of estates’ should either operate to condone a fraud or to deny a legal remedy to interested persons who may have a genuine challenge to the will sought to be probated. Such is not, and has never been, the policy of the Probate Act.” 167 Ill. App. 3d at 274 (Heiple, J., dissenting).

Before making that observation the dissenting judge said this:

“Additionally, by limiting the definition of an ‘interested person’ only to those who were named in the will immediately preceding the one sought to be probated, the majority completely ignores the possibility that more than one will may be invalid. In so ruling, the majority’s opinion delineates a scheme for those who seek to defraud probate courts and beneficiaries named in a will. That is, if one is going to design a fraudulent will for probate, he should be sure to create two such documents, both of which are dated subsequent to the true will, and neither of which name the beneficiaries sought to be defrauded.” 167 Ill. App. 3d at 274 (Heiple, J., dissenting).

We cannot be certain that the majority in Keener would have reached the same conclusion if only one will intervened between the will in issue and the will upon which the petitioner based her claim. In any event, if the majority opinion can be distinguished from this case on its facts, we would do so without necessarily expressing agreement or disagreement with it. But if the majority opinion means that they would have arrived at the same conclusion on the facts before us, we respectfully decline to follow it. We believe the dissent expresses the more just and compelling public policy that fraud should never be insulated from the reach of the court because the court may have more work to do to detect and correct the fraud. We note parenthetically that the California Appellate Court upheld the right of heirs at law to object to a distribution order under a will despite the fact that the heirs might “be required to contest seven previous wills before they would be entitled to succeed to decedent’s estate.” (Emphasis added.) In re Estate of Molera (1972), 23 Cal. App. 3d 993, 999, 100 Cal. Rptr. 696, 700.

By these observations we do not mean to suggest that the record establishes that the beneficiaries of any of the wills involved or those who prepared them have been guilty of any wrongdoing. We hold simply that, under the particular facts of this case, the plaintiffs had a sufficient interest in the proceedings to be given the chance to show, if they can, undue influence.

Showmen’s is already alleging undue influence and in the normal course of events there will be a trial. Consequently, we see no great hardship imposed on the estate or the court by permitting the plaintiffs to participate in any proceedings to adjudicate the issue of undue influence in the last will. As the trial judge noted, will contests are often settled. There would be nothing shameful or sinister about Showmen’s settling with the estate for a share less than that given in the second will but greater than that given in the last will. A settlement in the absence of the plaintiffs, of course, would end the matter with an adjudication that the last will was valid, and the plaintiffs would never have their right to show that the second and third wills were obtained by undue influence. To us, that would be an unjust result.

We judge that James Bailey and Daniel Bailey were interested persons under section 8 — 1 of the Act. Michael Bailey concededly is not an interested person. For these reasons, that part of the judgment order dismissing the complaint as to Michael Bailey is affirmed. That part of the judgment order dismissing the complaint as to James Bailey and Daniel Bailey is reversed and the cause remanded for further proceedings consistent with the views expressed in this opinion.

Judgment affirmed in part and reversed in part and remanded.

McNAMARA and RAKOWSKI, JJ., concur.

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Thomas Rakowski was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


author: PRESIDING JUSTICE GREIMAN

text:
    MYRON CHAPMAN et al., Plaintiffs-Appellees, v. UNITED INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—2014
    Opinion filed September 16, 1992.

      Reuben L. Hedlund, of Latham & Watkins, of Chicago, for appellant.
    James H. Bowhay, of Neal, Gerber & Eisenberg, and Schiff, Hardin & Waite, both of Chicago, for appellees.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

United Insurance Company of America (United) has appealed a nonfinal order of the circuit court of Cook County which provided that the appellees, certain shareholders of United (shareholders), could proceed with an action for the appraisal of their United shares following a merger of that company with Teledyne, Incorporated.

Section 167(1) of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 779(1)) establishes the process for evaluation of the shares of dissenting shareholders in a merger or consolidation or plan of exchange of an insurance corporation.

In effecting the stock merger, United’s board of directors gave notice of a special meeting of the shareholders to vote on the proposed plan of merger, and fixed a record date to determine which shareholders were entitled to notice and to vote at the special meeting.

While shareholders here were the beneficial owners of their shares at the time of notice and at the record date, they were not the record owners; the shares apparently were being held in “street name.” However, prior to the meeting and vote on the merger, the shares were transferred to the name of the shareholders and they became the record owners.

In an effort to comply with the provisions of section 167(1) of the Insurance Code, the shareholders filed written objection to the plan of merger prior to or at the meeting of shareholders, did not vote in favor of the merger and made timely written demand for payment of the fair value of the shares. Defendant denied that plaintiffs were shareholders “entitled to vote” as of the record date, so refused them appraisal rights under section 167.

Unable to obtain satisfaction from United, the shareholders filed a timely petition in the circuit court to provide for appraisal of the value of the dissenting shares.

The trial court denied United’s section 2 — 615 motion to dismiss which alleged that shareholders could not maintain an appraisal action because they were not record owners of the shares on the record date fixed by the United board. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) It is this order that United appeals.

The threshold issue in every appeal to this court is whether the order appealed from is a final order or falls within one of the exceptions carved out by the Illinois Constitution, authorized acts of the General Assembly or supreme court rules so as to confer jurisdiction upon us.

Article VI, section 6 (Ill. Const. 1970, art. VI, §6), provides that appeals from final judgments of a circuit court to the appellate court are a matter of right. However, it further states that “the Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Courts.” Ill. Const. 1970, art. VI, §6; see People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, 429 N.E.2d 483; In re Marriage of Johnston (1990), 206 Ill. App. 3d 262, 562 N.E.2d 1004.

There is no appeal from a nonfinal order unless the appeal is specifically authorized by rule or statute. (People v. Young (1980), 82 Ill. 2d 234, 239, 412 N.E .2d 501; In re Marriage of Lentz (1980), 79 Ill. 2d 400, 406-07, 403 N.E.2d 1036; People v. Bradley (1984), 129 Ill. App. 3d 177, 182, 472 N.E .2d 480; In re Gomez (1981), 100 Ill. App. 3d 299, 301, 426 N.E.2d 1084.) The denial of a motion to dismiss is not, of itself, a final determination but rather is interlocutory. Catlett v. Novak (1987), 116 Ill. 2d 63, 68, 506 N.E.2d 586.

Supreme Court Rule 307 (134 Ill. 2d R. 307) sets out eight instances in which an interlocutory order may be appealed to the appellate court. Supreme Court Rule 308 provides for certain interlocutory appeals by permission where the trial court has made a finding that the order involves “a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 134 Ill. 2d R. 308(a); see Voss v. Lincoln Mall Management Co. (1988), 166 Ill. App. 3d 442, 519 N.E.2d 1056.

Such a finding must be in writing and specifically identify the question of law involved. No such finding has been made in the order which is the subject matter of this controversy.

United seeks to bring its appeal within the umbrella of Supreme Court Rule 307 by interweaving a delicate nexus between two statutes and a supreme court rule.

United observes that section 167(1) of the Insurance Code provides that “the practice, procedure and judgment in the circuit court upon such petition shall be the same, so far as practicable, as that under the eminent domain laws in this State” (Ill. Rev. Stat. 1989, ch. 73, par. 779(1)) and that section 7 — 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 104(b)) allows interlocutory appeals relating to the exercise of the right of eminent domain.

Defendant then cites Supreme Court Rule 307(a)(7) (134 Ill. 2d R. 307(a)(7)), which specifically provides that an appeal may be taken to the appellate court from an interlocutory order “determining issues raised in proceedings to exercise the right of eminent domain under section 7 — 104 of the Code of Civil Procedure.”

Therefore, United argues, the supreme court, in exercising powers granted it under section 6 of article VI of the Constitution in providing by rule for appeals to the appellate court, has incorporated by reference a portion of the Code of Civil Procedure enacted by the General Assembly which sets out rights of appeal from eminent domain proceedings and that such interlocutory orders in insurance stock appraisal litigation may be similarly appealed.

In analyzing this intricate pattern which United urges upon us, we must observe that the applicability of eminent domain laws is limited in section 167(a) (Ill. Rev. Stat. 1989, ch. 73, par. 779(a)) to “practiced and] procedure[s] *** in the circuit court” and does not touch upon the jurisdiction of the appellate court.

Moreover, the appeal provided in section 7 — 104 is approved by adoption of Supreme Court Rule 307(a)(7) by the Illinois Supreme Court. Without such adoption, section 7 — 104 might be of doubtful validity.

Nothing precluded the supreme court from expanding the narrow scope of its Rule 307(a)(7) to include actions under section 167 of the Insurance Code. This supreme court rule is clear and specific as to its applicability.

The current supreme court rules and State Constitution reflect the long-held intention to place responsibility for rules governing appeal in the supreme court and not in the General Assembly. See People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 65, 237 N.E.2d 495; Whitely Estates Corp. v. Cappelletti (1969), 112 Ill. App. 2d 157, 160, 251 N.E.2d 397.

The Committee Comments to Rule 307 specifically state that the supreme court rules were intended to cover all interlocutory appeals, pursuant to section 6 of article VI of the Constitution. (134 Ill. 2d R. 307(a), Committee Comments, at 261-62; see also Ill. Ann. Stat., ch. 110A, par. 307, Historical & Practice Notes, at 260 (Smith-Hurd 1985).) Further, where a rule of the supreme court on a matter within the court’s authority and a statute on the same subject conflict, the rule will prevail. O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322.

United makes a cogent argument that the interest of judicial economy may dictate that an interlocutory appeal be allowed here since (1) dismissal will only return the matter to the circuit court where the court will most likely make a “Rule 308” finding and the matter would then have to again begin its journey in the appellate court and (2) determining the substantive issue presented in this appeal would obviate costly appraisal proceedings in the event United would prevail.

Unfortunately, as compelling as those arguments may be, jurisdiction is not founded upon the exigency of the circumstances.

Accordingly, we hereby dismiss this appeal. However, because United’s appeal was in good faith on the belief that it fell within one of the exceptions in Supreme Court Rule 307(a), and in the event the trial court is willing to consider findings in accord with Supreme Court Rule 308, no prejudice should attach by reason of the lack of timeliness in United’s appeal of such subsequent order for which interlocutory appeals might be allowed.

Appeal dismissed.

RIZZI and CERDA, JJ., concur.