text:
    KATHY E. HOOKS, Plaintiff-Appellant, v. LAWRENCE T. BONNER et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2470
    Opinion filed August 28, 1989.

      Melvin Houston and Veleta Brooks-Burkett, both of Detroit, Michigan, for appellant.
    Earl L. Neal & Associates, of Chicago (George N. Leighton, of counsel), for appellee Earl L. Neal.
    McNeela & Griffin, Ltd., of Chicago (Edward P. McNeela and Marcia Maras, of counsel), for appellee Fidelity & Deposit Company of Maryland.
    No brief filed for other appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Kathy E. Hooks (plaintiff) appeals the circuit court’s dismissal with prejudice of her complaint filed against Lawrence T. Bonner and Earl L. Neal, coadministrators of the estate of Genoa S. Washington, and their surety, Fidelity & Deposit Company of Maryland (defendants), because plaintiff’s claim, alleging matters relating to Genoa Washington’s estate, was barred by section 24 — 2 of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110½, par. 24 — 2). On appeal plaintiff seeks reversal of the circuit court’s order, contending that her claim does not constitute a collateral attack to invoke res judicata principles and the provisions of section 24 — 2 of the Probate Act and, alternatively, that her collateral attack is not barred under section 24 — 2 because it sufficiently alleges fraud relating to the prior court’s jurisdiction.

Defendant Bonner has not filed an appellate brief in response to plaintiff’s appeal. We are not, however, permitted to reverse pro forma a trial court’s judgment for an appellee’s failure to file a brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

We affirm.

Genoa S. Washington died on October 14, 1972. On October 16, 1972, defendants Bonner and Neal were appointed personal representatives for his estate. Defendant Fidelity, as surety, executed two administrator’s bonds on behalf of defendants Bonner and Neal.

On April 14, 1981, plaintiff received $15,000 from defendants. Defendants also issued plaintiff a check on July 20, 1981, for $19,684.59, which she negotiated on July 29, 1981.

On July 30, 1981, Richard Clayter; the estate’s attorney, mailed to plaintiff a notice stating that he would present the final account of defendants Bonner and Neal at a court hearing to be held on August 6, 1981. On August 3, 1981, plaintiffs attorney, G. Anderson Montgomery, acknowledged receipt of the notice and requested that the hearing be continued to a later date. The hearing was subsequently continued to August 14, 1981, and a copy of this order, along with the estate’s Federal estate tax return and the proposed final account, were sent to Montgomery. In a mailgram dated August 13, 1989, Montgomery acknowledged receipt of the above, but stated “still awaiting complete set of income tax returns *** for estate.”

Neither plaintiff nor her attorney appeared at the August 14, 1981, hearing. A hearing on the final account was held on that date, and the hearing was continued by order of court to August 24 and September 15 for presentation of vouchers and receipts. On September 15, 1981, a final order of discharge was entered by the probate court, closing the estate of Genoa Washington.

Plaintiff’s initial complaint filed on August 8, 1983, and four subsequent amended complaints filed through January 1988 were dismissed for failure to state a cause of action. On February 14, 1988, plaintiff filed a sixth-amended complaint in which she alleged several counts, including fraud or negligence in the administration, valuation and distribution of the estate by defendants Bonner and Neal.

On May 27, 1989, Judge Thomas Quinn denied defendants Bonner and Neal’s motion to strike and dismiss and granted plaintiff leave to file a seventh-amended complaint adding Fidelity as a defendant. On July 14, 1988, Judge Quinn granted defendants Bonner’s and Neal’s motions to reconsider the May 27 order and dismissed plaintiff’s complaint with prejudice. It found that plaintiff’s action was barred by section 24 — 2 of the Probate Act as an impermissible collateral attack on a prior judgment.

Section 24 — 2 of the Probate Act codifies in probate actions general principles of res judicata and collateral attack. Under the doctrine of res judicata, a final judgment on the merits bars subsequent litigation between the same parties on issues found to be part of the same cause of action before a court of competent jurisdiction. (Hilti, Inc. v. Griffith (1978), 68 Ill. App. 3d 528, 532, 386 N.E.2d 63, 65.) This bar extends not only to matters actually determined, but also to those matters which could have been raised in the prior adjudication. Drabik v. Lawn Manor Savings & Loan Association (1978), 65 Ill. App. 3d 272, 277, 382 N.E.2d 333, 336.

The rule against collateral attack stems from the above principles. After 30 days from its entry, a judgment may not be collaterally attacked except where the court lacked jurisdiction or its jurisdiction was based upon fraud, accident or mistake. (In re Estate of Luer (1952), 348 Ill. App. 324, 108 N.E.2d 792; Barnard v. Michael (1945), 392 Ill. 130, 63 N.E.2d 858.) To constitute fraud as to the court's jurisdiction, the party asserting such fraud must have been deprived of an opportunity to present a right or defense he had in the former proceedings by improper conduct of the party securing the judgment. In re Estate of Stith (1969), 105 Ill. App. 2d 429, 437, 244 N.E.2d 834.

Courts have interpreted section 24 — 2 of the Probate Act as applying to orders approving final reports in probate the same requirements developed in regard to collateral attacks on other final judgments. (In re Estate of Moore (1988), 175 Ill. App. 3d 926, 530 N.E.2d 635; In re Estate of Luer (1952), 348 Ill. App. 324, 108 N.E.2d 792 (interpreting section 24 — 2’s predecessor, section 290 of the Probate Act of 1939 (Ill. Rev. Stat. 1951, ch. 3, par. 444)).) Section 24 — 2 provides:

“Notice of the hearing on any account of a representative of a decedent’s estate shall be given as the court directs to unpaid creditors and to every person entitled to a share of the estate who has not received that share in full. If the account is approved by the court upon the hearing, in the absence of fraud, accident or mistake, the account as approved is binding upon all persons to whom the notice was given. No notice need be given to any person from whom a receipt in full is exhibited to the court or who waives notice.” Ill. Rev. Stat. 1985, ch. 110½, par. 24-2.

The threshold question presented on this appeal is whether plaintiff’s claim represents a collateral attack upon the probate court’s final accounting to invoke section 24 — 2’s provisions. Plaintiff argues that because her complaint outlines certain property not included in the final accounting, her claim does not represent a collateral attack on that decision. This argument lacks merit.

To support her position, plaintiff cites In re Estate of Winston (1981), 99 Ill. App. 3d 278, 425 N.E.2d 973, where the court found that petitioner’s claim against his mother’s estate, seeking the imposition of a constructive trust on grounds that his mother had converted certain assets while acting as a trustee under his father’s will, did not constitute a collateral attack upon the final account of his father’s estate. The court reasoned that the final account only adjudicated rights to certain assets under the will and did not adjudicate the issue involved in the case before it, the capacity in which the mother received the property under the will. (Estate of Winston, 99 Ill. App. 3d at 286-87, 425 N.E.2d at 980.) Unlike Winston, the issues here clearly involve the same issues adjudicated by the probate court’s final accounting — the rights of interested persons in the personalty of Genoa Washington’s estate.

Finding that plaintiff’s action represents a collateral attack on the final accounting, we next consider whether plaintiff’s collateral attack is barred under section 24 — 2 of the Probate Act. Based upon the language of section 24 — 2 and the established cases previously cited, plaintiff's action could be sustained only if her complaint claimed fraud relating to the probate court’s jurisdiction. A review of plaintiff’s complaint here discloses that plaintiff does not allege fraud relating to the court’s jurisdiction, but alleges merely fraud in the valuation and distribution of Genoa Washington’s estate.

We reject plaintiff’s contention that her complaint sufficiently alleges facts to withstand the motion to dismiss. Plaintiff asserts that her allegation of fraud in the “distribution” of the estate was intended to include the final accounting, as well as efforts to obtain the order of discharge. She further argues that because, in a motion to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), all reasonable inferences should be viewed in a light most favorable to the party opposing the motion (Evans v. Control Products Corp. (1979), 73 Ill. App. 3d 681, 392 N.E.2d 239), the circuit court erred in granting the motion. Plaintiff’s complaint, however, fails to allege facts from which a court could reasonably infer that the jurisdiction of the court was invoked by conduct which deprived plaintiff of an opportunity to assert her rights in the accounting. Moreover, plaintiff has waived this argument by failing to assert it in the circuit court. In her response to defendants’ motion to dismiss, plaintiff argued only that defendants’ failure to include certain property in the accounting constituted fraud relating to the court’s jurisdiction.

In addition to the above, newly asserted argument, plaintiff also, for the first time on appeal, makes unsupported representations as to defendants’ failure to give plaintiff proper notice in obtaining the prior judgment. No allegations to this effect appear in plaintiff’s complaint. Our limited function on review is to determine whether the circuit court erred in granting the section 2 — 619 motion to dismiss. In view of plaintiff’s allegations in her complaint, the circuit court correctly held that section 24 — 2 barred her action.

Finally, the court’s dismissal with prejudice is also proper here. Plaintiff was afforded six opportunities to properly allege fraud as to the court’s jurisdiction and failed to do so. A party does not have a right to unlimited amendments. Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    PHILLIP AKERS, Plaintiff-Appellant, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—2316
    Opinion filed August 25, 1989.

      David L. Buffen, of Rittenberg & Buffen, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellant.
    Santa Fe Southern Pacific Corporation and Lord, Bissell & Brook, both of Chicago (Weston W. Marsh and Kenneth A. Peterson, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Phillip Akers, appeals from a jury verdict finding defendant, The Atchison, Topeka and Santa Fe Railway Co., not liable for plaintiff’s personal injuries. Plaintiff raises the following three issues on appeal: (1) whether an expert witness who was originally hired by plaintiff should have been barred from testifying for defendant at trial; (2) whether plaintiff was prejudiced when the jury learned that the expert was originally hired by plaintiff; and (3) whether defendant should have been required to pay plaintiff the fee plaintiff paid to the expert. For the following reasons, we affirm.

Plaintiff filed a third-amended complaint against defendant for negligence and strict liability. He alleged that on October 23, 1980, he was employed as a warehouseman by Meehan Seaway Service and was loading materials in a railroad car owned by defendant. As he was loading materials, the load divider of the car unhinged and struck plaintiff. Plaintiff suffered personal injuries.

After answering the complaint, defendant sent interrogatories to plaintiff which included a request for plaintiff to identify each expert witness he planned to call at trial. On November 25, 1981, plaintiff responded that he had not retained an expert at that time.

Subsequently, plaintiff identified Edward McLean as his engineering expert, although the date of the disclosure is not apparent from the record. Plaintiff admits in his appellate brief that McLean was his testifying expert at trial rather than his consulting expert.

When defendant deposed McLean, he testified, in part:

“Q. I think we discussed in the earlier deposition that when you read the deposition transcript of [plaintiff’s] deposition, that he had stated he had got down and looked and saw the pins all the way into the tracks.
A. That’s right.
Q. I think you also indicated that you’ve got no reason to disagree with that statement?
A. That’s right.
* * *
Q. With all those facts in mind that you’ve discussed already, based on [plaintiff's] testimony, do you have an opinion as to how the door could have popped out of its track if the pins were all the way in place?
A. *** It’s hard for me to visualize just exactly what happened. If the pins were in place as he indicated and the pressure was as he indicated, it’s awfully hard to determine to what extent the pins were engaged. He says they were engaged, so in taking his statement, I can’t reason that the occurrence should have occurred.”

On September 15, 1986, defendant sent plaintiff a letter stating it tentatively planned to call McLean as its expert but could not confirm until plaintiff answered interrogatories identifying his testifying expert witnesses.

Two weeks later, on September 30, 1986, in response to an interrogatory asking plaintiff to identify each of his testifying expert witnesses, plaintiff identified John Stilson as his engineering expert. Plaintiff did not identify McLean as one of his testifying expert witnesses.

On October 14, 1986, an order was entered which in part stated, “It is furthered [sic] ordered that plaintiff will not object to the disclosure of James Bennett and Ed McClean [sic] as experts.”

On March 6, 1987, several weeks before trial, plaintiff again responded to interrogatories by identifying Stilson as his engineering expert at trial and not identifying McLean.

The jury trial began on March 25, 1987, with opening statements. In his opening statement, without objection from plaintiff, defense counsel stated:

“Ladies and gentlemen, in addition to Mr. Brown, and as one of our last pieces of the puzzle, we are going to call Ed McLean. Mr. McLean is our expert. ***
Mr. McLean is going to tell you that he made tow inspections of an Evans Dual Air-Pak load divider door. He’s also going to tell you that when he made those inspections he had been retained by and was being paid by the plaintiff in this case.”

The next day, the parties’ attorneys and the judge had a conference in chambers. Plaintiff admitted he telephoned McLean the evening before and McLean agreed to meet with plaintiff that morning prior to going to court. Plaintiff was upset because rather than meeting with plaintiff, McLean met with defendant. Plaintiff argued that when he retained McLean, he gave McLean his “theory of the case *** [and] opened up [his] file to him” and claimed that defendant persuaded McLean to tell him what McLean learned. Plaintiff asked that McLean be barred from testifying but the judge denied the request because plaintiff had known defendant was planning to call McLean as a witness for a substantial period of time prior to trial. The judge, however, allowed plaintiff to meet with McLean before he testified.

On April 1, 1987, the day McLean testified, plaintiff again moved to bar him from testifying but his motion was denied.

When McLean testified for defendant on direct examination, the following occurred:

“Q. Were you paid for your time when you gave your depositions?
A. Yes, Sir.
* * *
Q. Was [that] the opinion you rendered when you were testifying on behalf of the plaintiff?
[Plaintiff’s attorney]: Objection. He never testified before.
THE COURT: Sustained. That question will be disregarded by the jury.
BY [defendant’s attorney]:
Q. I believe last time you mentioned that you gave some deposition in this case, is that right?
A. I did.
Q. At the time you gave those depositions, were you asked for your opinions?
A. I was.
Q. At the time you gave those opinions, by whom were you employed?
A. By [attorney John Sands.
Q. Who was Mr. Sands representing?
A. He was representing [plaintiff].
Q. How much were you paid by Mr. Sands?
A. $2578.26.”

On cross-examination from plaintiff, McLean testified:

“Q. You were brought into this case by Mr. Sands, [plaintiffs] original lawyer?
A. Yes, sir.
* * *
Q. And Mr. Sands on behalf of the — [defendant’s attorney] also paid you a sum of money to testify here today, your usual hourly rate or whatever is agreed to?
A. He has agreed to. He hasn’t paid me at all yet.
Q. And since October of last year, you have spoken to [defendant’s attorney] on the phone?
A. I believe once or twice.
Q. And you have met with him in his office?
A. I have.”

On redirect examination, McLean testified:

“Q. *** Now, on cross-examination, Mr. McLean, I believe you said you had no reason to disbelieve the plaintiff that the pins appeared fully engaged?
A. No. What I said was that I didn’t know how the accident happened if the pins were fully engaged as the plaintiff stated.
Q. In other words, just so I understand, if the pins were fully engaged, this accident could not happen?
A. That’s right, in my opinion.”

The record on appeal does not contain a complete transcript of proceedings of the parties’ closing argument. A few pages of defendant’s closing argument were attached to defendant’s response to plaintiff’s post-trial motion. In defendant’s closing argument, he stated:

“Now, ladies and gentlemen, Mr. McLean’s testimony should tell you something about [plaintiff's case. He told you he gave the same opinions when he was working for the plaintiff as he did here at trial. How did the plaintiff react to that? They spent time indirectly trying to attack Mr. McLean’s ethics. That, ladies and gentlemen—
[Plaintiff’s attorney]: Objection, your Honor. I wasn’t attacking Mr. McLean’s ethics. I was attacking his ethics.
* * *
THE COURT: Well, the jury has heard the evidence. This is argument. Ladies and gentlemen, whatever the jury said — the lawyers say is not evidence. If anything the lawyers say is not consistent with what you heard from the witness stand, disregard it.”

The jury returned a verdict finding defendant not guilty and plaintiff’s motion for new trial was denied. Plaintiff now appeals.

Opinion

Initially, we must address the parties’ failure to comply with certain procedural rules of our supreme court. First, Supreme Court Rule 341(e)(6) provides that the statement of facts section of a brief must contain facts “stated accurately and fairly without argument or comment.” (107 Ill. 2d R. 341(e)(6).) Each party argues that the other’s statement of facts was not based on the record. Plaintiff’s brief is replete with assertions of fact which are supported by no more than statements made in his post-trial motion and arguments made at the trial court level. Defendant, to a lesser degree, also violated the rule. The parties’ failure to follow the rule has made resolution of this appeal unduly burdensome and this practice should not be continued in the future. We have reviewed the record on appeal and have considered only facts supported by the record in rendering this decision.

Second, Supreme Court-Rule 323(a) provides a procedure for the appellee to include additional portions of the proceedings in the record on appeal. (107 Ill. 2d R. 323(a).) Rather than follow this procedure, defendant attached an incomplete transcript of proceedings to his brief which was not included in the record. This transcript is not properly part of the record on appeal and was not considered by this court.

Third, Supreme Court Rule 323(c) provides that when a verbatim transcript of proceedings is not available, appellant may serve a proposed report of proceedings within 14 days from filing the notice of appeal. (107 Ill. 2d R. 323(c).) Instead, plaintiff’s attorney signed two affidavits and attached them to his reply brief in an attempt to explain the court proceedings that occurred on a day when a verbatim report of proceedings was not available. “[A]n attorney’s affidavit cannot be used to supplement the record in lieu of a transcript or a bystanders report.” (Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 497, 531 N.E.2d 51, 61.) Accordingly, plaintiff’s affidavits were not considered on appeal.

I

Illinois courts have previously determined that an expert witness who was originally retained by one party can properly testify at trial for that party’s opponent. In People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208, rev’d in part on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279, defendant hired a fingerprint expert to assist him in evaluating the evidence and to render an opinion. At trial, the prosecution called the expert to testify in its behalf. On appeal, defendant argued the expert should not have been allowed to testify on behalf of the prosecution based on the attorney-client privilege. Our supreme court rejected that argument, stating:

“A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party.” Speck, 41 Ill. 2d at 200, 242 N.E.2d at 221.

In Department of Business & Economic Development v. Schoppe (1971), 1 Ill. App. 3d 313, 272 N.E.2d 696, the petitioner subpoenaed an expert witness in a condemnation proceeding who was originally hired by defendants to appraise their property. Before trial, defendants dismissed the expert. The expert testified at trial for petitioner. On appeal, the court found that allowing the expert to testify was proper, relying on the above-quoted language in Speck.

In the present case, plaintiff identified McLean as his expert and he was deposed by defendant. Subsequently, however, plaintiff identified another engineering expert to testify at trial rather than McLean. Also, an order was entered stating that plaintiff would not object to defendant’s disclosure of McLean. It was apparent that plaintiff no longer intended to use McLean as his testifying expert witness. Plaintiff argues he never discharged McLean from his contractual obligations; however, this is a matter between plaintiff and McLean. Following Speck, the mere fact that plaintiff originally hired McLean did not render him incompetent to testify at trial for defendant.

Plaintiff further argues that defendant should have been barred from communicating with McLean without plaintiff’s consent. We note that the record only established that defendant communicated with McLean since October of 1986, which was after plaintiff filed his answers to interrogatories identifying another testifying expert rather than McLean.

Plaintiff urges the application of Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, where a defense attorney in a medical malpractice action was found in contempt of court for refusing to obey a court order which barred him from engaging in ex parte conversations with one of plaintiff’s treating physicians. The appellate court affirmed, relying in part on the physician-patient privilege (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 802), which prohibits a physician from disclosing information he acquired in treating a patient. The court found the privilege that attaches to a physician-patient relationship justified barring ex parte communications between the physician and defense counsel.

Plaintiff in this case acknowledges that the holding of Petrillo was based on the physician-patient, privilege but argues that the same deference should be given in the present case based on the work product exemption from discovery. Plaintiff claims he disclosed work product material to McLean and that McLean used this information when he testified for defendant.

Supreme Court Rule 201(b)(2) provides, in part:

“Privilege and Work Product. *** Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (107 Ill. 2d R. 201(b)(2).)

Such materials protected from discovery are generally referred to as work product. We note that “the advice of an expert to an attorney concerning technical matters or technical interpretations of facts [are] not protected work product and [are] subject to discovery.” Ill. Ann. Stat., ch. 110A, par. 201, Historical and Practice Notes, at 232 (Smith-Hurd 1985), citing Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.

Here, plaintiff argues that he disclosed work product material to McLean which was then disclosed to defendant. Supreme Court Rule 201(c)(1) provides that a party may move for a protective order “denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” (107 Ill. 2d R. 201(c)(1).) A party’s mere assertion that certain material is exempt from discovery is not sufficient. See Monier v. Chamberlain (1966), 66 Ill. App. 2d 472, 213 N.E.2d 425, affd (1966), 35 Ill. 2d 351, 221 N.E.2d 410.

In this case, plaintiff has failed to adequately establish that any work product material was even involved. At no stage in the proceedings has plaintiff identified any work product material that he disclosed to McLean. Plaintiff learned by letter dated September 15, 1986, that defendant tentatively planned to call McLean as its expert witness. Subsequently, plaintiff identified another expert witness rather than McLean. On October 14, 1986, an order was entered which stated that plaintiff would not object to the disclosure of McLean. It should have been clear to plaintiff at this point that defendant planned to use McLean as its expert witness. If there was a danger that certain protected work product which plaintiff allegedly-disclosed to McLean would be disclosed to defendant, plaintiff should have sought a protective order or other appropriate relief.

Plaintiff claims he did not realize that defendant had communicated with McLean until the second day of trial. On that day, plaintiff finally moved to bar McLean’s testimony on the claim that he “opened up” his file to McLean. However, plaintiff did not identify any material that he disclosed to McLean which was protected from discovery based on work product.

Plaintiff urges that the mere fact defendant communicated with McLean presumes a disclosure of work product relying on Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519. Yates, however, involved the physician-patient privilege and is, therefore, inapplicable to the case at bar.

Under these circumstances, the trial court properly allowed McLean to testify.

II

Plaintiff also argues he was prejudiced when defendant informed the jury that McLean was originally hired by plaintiff.

Plaintiff relies on Department of Public Works & Buildings v. Guerine (1974), 19 Ill. App. 3d 509, 311 N.E.2d 722, for his claim that he was prejudiced. Guerine involved a condemnation proceeding where the petitioner called an expert appraiser as a witness who had previously been hired by defendants to appraise the property. The trial judge granted defendants’ motion in limine prohibiting petitioner from revealing to the jury that the expert was first hired by defendant. In affirming the ruling, the court stated, in part, that revealing this information would have prejudiced the jury.

The key distinction between Guerine and the present case is that in Guerine, defendants filed a motion in limine to prohibit testimony of the expert’s prior employment with defendant. Here, plaintiff did not seek such protection. In fact, plaintiff did not even raise the issue of prejudice in his objections at trial.

To preserve an issue for appellate review, a party must make the appropriate objection at the trial court level or the issue will be waived. (Brown v. Timpte, Inc. (1985), 137 Ill. App. 3d 1053, 485 N.E.2d 488.) When an objection is made, specific grounds must be stated and other grounds not stated are waived on appeal. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 444 N.E.2d 220.

When the first reference to McLean’s prior employment with plaintiff was made in defendant’s opening argument, plaintiff did not raise any objection. When subsequent references were made, plaintiff objected to some of the references but not on the issue of prejudice. Plaintiff claims he did not want to “draw too much attention” to the fact that McLean was originally employed by the plaintiff. If this was plaintiff’s concern, plaintiff should have requested a side bar at the time or made a motion in chambers to prohibit such testimony.

Despite his failure to object to some references or raise the issue of prejudice when he did object, plaintiff argues that the issue was preserved by raising it in his post-trial motion. In his post-trial motion, however, plaintiff argued he was prejudiced when:

“Defendant’s counsel related to the jury that Mr. McClean [sic] *** was discharged by [pjlaintiff because Mr. McClean’s [sic] views were not favorable to [p]laintiff, when [defendant had no reason to believe that [plaintiff’s decision not to call Mr. McClean [sic] as an expert was based on that reason.”

From this argument it is clear that plaintiff was not objecting to the disclosure of McLean’s prior employment with plaintiff but, rather, plaintiff was only objecting to defendant’s speculation as to the reason plaintiff did not call McLean as a witness. Accordingly, plaintiff failed to raise the issue that he was prejudiced when the jury learned McLean was originally hired by the plaintiff at the trial court level. An objection to evidence on the grounds of prejudice or relevance cannot be raised for the first time on appeal (Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 458 N.E.2d 1331), and therefore, we find plaintiff has waived consideration of this issue on appeal. We note parenthetically that the record does not contain any reference made by defendant to the jury as to the reason plaintiff failed to call McLean.

III

Lastly, plaintiff argues that defendant should have been required to reimburse him for the fee he paid to McLean. McLean testified plaintiff paid him $2,578.26.

Supreme Court Rule 220(c)(6) provides:

“Unless manifest injustice would result, each party shall bear the expense of all fees charged by his expert witness or witnesses.” (107 Ill. 2d R. 220(c)(6).)

The Committee Comments note that a party’s expert fee will be reallocated to the opposing party in an “exceptional case” to avoid “manifest injustice.” (107 Ill. 2d R. 220, Committee Comments.) The Historical and Practice Notes state that the subsection is

“a sanction, and responds to continuing concerns about fairness in the conduct of discovery from expert witnesses, although the rule makes it clear that in the view of the Supreme Court such discovery will rarely be unfair.” Ill. Ann. Stat., ch. 110A, par. 220, Historical and Practice Notes, at 442 (Smith-Hurd 1985).

The term “fees” as used in the rule has been interpreted as the nonstatutory fees charged by an expert witness that a party agrees to pay for litigation assistance. (Lee v. Hyster Co. (1987), 156 Ill. App. 3d 214, 509 N.E.2d 586.) When a party produces his expert witness for deposition at the request of his opponent, the party must pay the fee charged by his expert. (Lee, 156 Ill. App. 3d 214, 509 N.E.2d 586.) In the present case, plaintiff initially identified McLean as his testifying expert witness and, as a result, defendant sought to depose him. It was plaintiff’s obligation under Rule 220(c)(6) to pay all fees charged by McLean.

Plaintiff argues that because McLean subsequently testified for defendant at trial, manifest injustice would result if defendant did not reimburse plaintiff for the fee he paid to McLean. We do not agree. At the time McLean was deposed and his fee was paid, he was plaintiff’s expert. In that deposition, it became apparent that McLean could not explain how the accident occurred if the circumstances were as plaintiff described. Plaintiff subsequently identified another expert rather than McLean. Also, an order was entered stating that plaintiff would not object to the disclosure of McLean. Because McLean’s deposition testimony favored defendant, defendant retained McLean. Unfortunately for plaintiff, he identified an expert witness to testify at trial whose opinion was favorable to defendant. Under these circumstances, we cannot say that defendant should be required to pay the fee plaintiff paid to McLean.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE McNAMARA

text:
    JOLANTA HORZELY KUNYIK, Plaintiff-Appellant, v. LOUIS Z. GRANT et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—87—2196
    Opinion filed August 25, 1989.
    E. Paul Lanphier, Ltd., of Elmhurst, for appellant.
    Burton F. Grant, of Chicago, for appellee Louis Z. Grant.
    Irving Goodman, of Chicago, appellee pro se.

   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Jolanta Horzely Kunyik, appeals from a trial court order dismissing, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619), her complaint seeking reimbursement of attorney fees she paid to defendants Louis Z. Grant and Irving Goodman, for legal services defendants rendered to plaintiff in a prior dissolution of marriage case. (At oral argument, this court was

_i advised that appellee Goodman is now deceased.)

In 1973, plaintiff filed a complaint for divorce. The divorce was granted in 1975. Plaintiff’s complaint here, filed May 7, 1984, alleges that plaintiff retained defendants to represent her in the dissolution action. Five years earlier, on May 7, 1979, Judge Plusdrak in the dissolution of marriage case had entered an order awarding defendants fees of $17,500 in full payment for 700 hours of work. Plaintiff had already paid defendants a total of $7,600. The judgment of dissolution of marriage entered by Judge Plusdrak stated:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
* * *
(F) That each of the parties will pay their respective costs and attorney’s fees.
* * *
(K) That the attorney’s fees of Louis Z. Grant and Irving Goodman, attorneys for the Petitioner [plaintiff here], are fixed at the sum of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500), representing 700 hours of professional services in this Court, in the Appellate Court of Illinois, First Judicial District, and in the Supreme Court of Illinois; and the Respondent [plaintiff’s husband] is directed to deduct the sum of $17,500 from the $92,500 awarded to Petitioner, and to pay the said sum of $17,500 to Louis Z. Grant and Irving Goodman, in full payment of all services rendered by them in the above causes to the date hereof.”

Thereafter, plaintiff's husband deducted the $17,500 from stocks awarded to plaintiff and paid it to defendants. Defendants did not deduct the $7,600 which plaintiff had already paid to them. Plaintiff now seeks the $7,600 with interest, plus costs of the present suit.

Both defendants subsequently filed motions to strike and dismiss the complaint, pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 615, 2 — 619.) Defendants alleged that the action was barred by a prior judgment and that the complaint, if predicated on an oral agreement, was barred under the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.). Defendants also claimed that the complaint was factually insufficient; that the dissolution judgment did not require reimbursement of previously paid fees, and required each spouse to be responsible for his or her own fees except for the $17,500 mentioned in the judgment; and that only the procedures under the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) could be used to alter the award of attorney fees.

On December 8, 1986, the court granted both defendants’ motions to dismiss after construing paragraphs F and K of the judgment of dissolution of marriage to mean that the $17,500 was in addition to the amount already paid and did not require any reimbursement. The court stated:

“I think that paragraph f and paragraph k of the Judgment of Dissolution of Marriage have to be construed together. Paragraph f requires the parties will pay their respective costs and attorney fees. Paragraph k then now are [sic] to fix attorney fees at a certain amount, but the context of that, I think, is with respect to the responsibility of the respondent to pay. I think the court awarded $17,500 attorney fees in favor of the petitioner and against the respondent, and anything else that was paid, I think — well, it was to have been paid. I can’t imagine any judge in this county requiring lawyers to work 700 hours in anything at a rate of $25 per hour, when there is at least $92,500 in the marital — in one portion of the marital estate. For that reason, the motion to dismiss the complaint will be sustained, and the cause will be dismissed with prejudice at this time, so that if any further relief can be sought.”

At a June 15, 1987, hearing on plaintiff’s amended motion to vacate the dismissal, in which plaintiff stated that the court erred in its interpretation of Judge Plusdrak’s order, the trial court denied the motion. The court observed that plaintiff’s collateral attack on the judgment of dissolution should have been brought at the latest within two years of the date of the judgment.

Plaintiff argues that the present action is not a petition to modify fees, nor an indirect attempt to modify the dissolution judgment. Instead, she states she is presenting her right to be reimbursed under “a theory of unjust enrichment.” Plaintiff describes the suit as an “action in assumpsit” which is predicated upon the equitable theory of “Money Had and Received” (citing National Malleable Castings Co. v. Iroquois Steel & Iron Co. (1929), 333 Ill. 588, 165 N.E. 199), which is “maintained either under the theory of implied contract or under the theory of quasi-contractual obligation.” We find, however, that the complaint here required the trial court merely to determine the meaning of Judge Plusdrak’s order as to fees. And, it appears from pleadings filed and comments of counsel, both sides recognized that was what the trial court was required to do.

We also hold that the trial court correctly determined the effect of the earlier order. That judgment recites that plaintiff’s hus-

band was to pay defendants $17,500 after deducting that sum from the $92,000 he was to pay as her share of the marital assets. With the exception of that particular method of payment, the judgment required the parties to pay their own attorney fees without specifying a method of payment.

The domestic relations case involved 700 hours of work by defendants. This court reviewed the fees question and other issues twice, and leave to appeal was denied by our supreme court. (Horzely v. Horzely (1977), 47 Ill. App. 3d 793, 365 N.E.2d 412, appeal after new trial on remand (1979), 71 Ill. App. 3d 542, 390 N.E.2d 28.) As the trial noted, plaintiff’s contention that the $17,500 alone constitutes payment for 700 hours would result in defendants being paid at the rate of $25 per hour. Even adding the $7,600 which plaintiff already paid would raise the fees only to $36 per hour. Moreover, defendants advanced costs for the two trials and appeals. We note that this court has upheld, for service in divorce matters in 1975 to 1977, fees of $75 per hour in Donnelly v. Donnelly (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56, and for $125 per hour in In re Marriage of Zannis (1983), 114 Ill. App. 3d 1034, 449 N.E.2d 892.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s complaint is affirmed.

Judgment affirmed.

EGAN, P.J., and QUINLAN, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AUGUSTUS BALTHAZAR, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—1607
    Opinion filed August 29, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Douglas Uhlinger and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Brian Grossman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant was convicted in a bench trial of possession of a stolen motor vehicle. He appeals, arguing that the State failed to prove ownership of the vehicle, an essential element of the offense, and that section 4 — 103(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(b)), defining the offense of possession of a stolen motor vehicle, is unconstitutional.

Chicago police officer Donald Wolverton testified at trial that on June 25, 1985, he was on patrol in a marked squad car in the vicinity of 345 South Albany Avenue in Chicago when he observed four men sitting in a parked car with no license plates. As he approached the car, the four men exited the auto and began running in different directions. The officer chased defendant and Zeke Myles, but was able to catch only Myles. According to Wolverton, Myles claimed that defendant had stolen the car. The officer further testified that he recognized defendant as one of the men in the car when he turned and looked back at Wolverton as he fled. Wolverton testified that he had known defendant for five or six years, had arrested him in the past, and had seen him a few months prior to June 1985. The officer named defendant in his case report as “a wanted offender,” and a warrant for his arrest was obtained.

After arresting Myles, Wolverton returned to the car, a 1978 Chevrolet Monte Carlo, and observed that the left-hand side of the steering column was peeled, the car radio was missing and the trunk lock had been pried away. Wolverton learned the identity of the owner of the car by running a computer check using the car’s vehicle identification number; he then went to see him at approximately 6 a.m.

Ambrus Horton, the owner, testified that he had locked his car doors when he parked it in front of his house at approximately 9:30 p.m. on June 24, 1985. He had not realized his car was missing until notified by the police. Horton stated that Wolverton came to his home at approximately 5 a.m. on June 25, 1985, and that he accompanied the officer to the police station, where he saw his car. He testified that his car was “almost demolished,” the steering column had been peeled, the dashboard was torn out, the car radio was missing, the window and lock had been knocked out and the personal property he had left in the car was missing.

Myles, a friend of defendant, testified that he was merely approaching the car and not actually in it when the police began chasing him; however, he admitted that he had pleaded guilty to “being inside the car.” Myles claimed that defendant was not with him on the morning of June 25, 1985, and that he never told Wolverton that defendant had stolen the car.

Defendant denied any involvement in the incident, claiming that he was at home in bed on the morning of June 25, 1985, and that he was not with Myles nor chased by Wolverton.

Defendant was acquitted of the charge of burglary, but found guilty of possession of a stolen motor vehicle. Based upon this conviction, his probation for a prior burglary was revoked and he received concurrent six-year prison terms for both offenses. This appeal followed.

Defendant was convicted under the following statute:

“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 part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote.” Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(a)(1).

Defendant contends that the State failed to prove that the car from which he had allegedly run was stolen or that the car belonged to Ambrus Horton. He maintains that ownership of the vehicle is an essential element of the offense of possession of a stolen motor vehicle and must be proved by the State beyond a reasonable doubt. He emphasizes that Wolverton testified that he learned the identity of the owner of the car by checking the vehicle identification number, but he did not testify to the owner’s identity at that time. During his rebuttal testimony, Wolverton stated that “the victim of the auto theft, Mr. Horton,” was present when Myles made the statement that defendant stole the car. Additionally, defendant cites Horton’s testimony that the police notified him of the theft at 5 a.m., which contradicts Wolverton’s testimony that he observed defendant in the car at 5:40 a.m. and notified the owner at 6 a.m. Thus, according to defendant, he could not have been in Horton’s car. Horton testified that he recovered his car at the police station, but he did not testify as to the vehicle identification number; therefore, defendant argues, Horton did not testify that he recovered the car from which defendant allegedly fled.

Defendant relies on People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795, in support of his argument that the State had to prove that he had possession of Horton’s, as opposed to any stolen vehicle. In that case, the appellate court reversed Hope’s conviction for theft and possession of a stolen motor vehicle, stating:

“We believe, after a careful review of the record before us, that the State failed to conclusively establish beyond a reasonable doubt that the automobile driven by defendant at the time of his arrest was owned by Nortown. The evidence established that a 1976 white Oldsmobile 98 was reported stolen by Nor-town sometime between May 20, 1976, and July 8, 1976, and that defendant was arrested on July 8, 1976, while driving a 1976 white Oldsmobile 98 which had apparently been reported stolen by an unidentified owner. However, the vital link necessary to establish that the Oldsmobile driven by defendant and the one missing from Nortown were the same automobile is clearly lacking. The State did not introduce a certificate of title for the automobile driven by defendant to establish Nortown’s ownership. Nor did the State prove the Oldsmobile driven by defendant and the one missing from Nortown bore the same vehicle identification numbers, although both numbers were available to the State. Furthermore, no chain of custody testimony was presented to indicate that the Oldsmobile in which defendant was arrested was later returned to, and accepted by, Nortown. Although *** [the] assistant general manager of Nor-town[ ] testified that Nortown’s missing Oldsmobile was returned by two other Nortown employees, the record does not indicate where or how these employees had obtained the automobile. There is certainly no evidence establishing that these employees obtained possession of the Oldsmobile from the police. The record does not reflect the date on which Nortown's automobile was returned and does not even preclude the possibility that Nortown had recovered its Oldsmobile prior to July 8, 1976[,] the date of defendant’s arrest. A judgment of conviction cannot be allowed to stand where, as here, the evidence fails to convincingly establish the ownership of the automobile allegedly stolen by defendant.” (69 Ill. App. 3d at 380.)

The court also noted that there was no evidence “to indicate that Nortown recovered the missing Oldsmobile from the police station shortly after defendant’s arrest.” (69 Ill. App. 3d at 381.) It appears that the court was discussing Hope’s conviction for theft, referring to “the automobile allegedly stolen by defendant”; however, the court reversed both Hope’s conviction for theft and his conviction for possession of a stolen motor vehicle. Because of this reference to “the automobile allegedly stolen by defendant,” it is not clear whether the Hope court required proof of ownership as to the charge of possession of a stolen motor vehicle. 69 Ill. App. 3d at 380.

The State contends that the statute under which defendant was charged “does not require proof of ownership but instead presents the issue as to whether or not the defendant had a right to possession of the motor vehicle.” (People v. Putney (1971), 132 Ill. App. 2d 967, 974, 271 N.E.2d 685.) It correctly contends that the instant case is distinguishable from Hope, because although the State did not show that the car in which defendant was sitting and Horton’s missing car “bore the same vehicle identification numbers,” there was “chain of custody testimony” that the Monte Carlo from which defendant fled was the Monte Carlo returned to Horton. Both Wolverton and Horton gave similar descriptions of the damage done to the car, and Horton recovered his auto from the police station shortly after defendant was seen fleeing from it. The evidence clearly supports the judge’s conclusion that defendant had possession of Horton’s stolen auto.

Defendant also argues that the statute relating to the possession of a stolen motor vehicle is unconstitutional, because it provides for a greater penalty than the general theft statute, of which it is a lesser included offense. The supreme court has recently rejected this argument and upheld the statute (People v. Bryant (1989), 128 Ill. 2d 448), stating:

“Under previous statutory schemes, possession of a stolen motor vehicle may have been considered a lesser included offense of theft. [Citations.] However, any previous lesser included offense rule is not applicable to the current statutory scheme for possession of a stolen motor vehicle. The steady increase in the penalty provision for possession of a stolen motor vehicle is indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense then theft, rather than a lesser included offense of theft. [Citations.]
We believe that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4 — 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4 — 103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” (128 Ill. 2d at 457-58.)

Accordingly, we reject defendant’s argument regarding the constitutionality of the statute under which he was convicted.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE DiVITO

text:
      In re T.O., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.O., a Minor, Respondent-Appellant).
    First District (2nd Division)
    No. 1—87—0285
    Opinion filed August 29, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, LaCoulton Walls, and Martin A. Dolan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

In this appeal, the minor-respondent, T.O., challenges the jurisdiction of the circuit court because of the failure to formally serve him with a summons and the petition. He also contends that the court erred in finding him delinquent.

Respondent, then age 15, was the subject of a petition for adjudication of wardship for theft, attempted murder, two counts of aggravated battery, and unlawful use of a weapon. When arraigned on November 24, 1986, respondent, his mother, and his stepfather were present. At the arraignment, the court appointed the public defender as respondent’s attorney and noted the presence of his mother in court. The public defender accepted the appointment and stipulated to the court’s jurisdiction over respondent.

The record does not indicate that respondent was served with a copy of the petition. However, on the date of the arraignment, respondent’s mother signed a circuit court form which waived service of the petition and summons, waived any defects in service of process, and consented to the jurisdiction of the juvenile court “on behalf of the above named minor, [T.O.], and myself, [Aquinta 0.]”

On December 23, 1986, both of respondent’s parents were in court and both were given copies of the petition. On that day, the court heard and denied respondent’s motion to quash arrest and to suppress evidence. The court then began a hearing on respondent’s motion to suppress statements. On December 26, with respondent and his mother in court, that motion was denied and the adjudicatory hearing began.

The evidence showed that on November 22, 1986, Anthony Robles, while off duty as a Chicago police officer, was working as a security guard at McCrory’s department store. After 6 p.m., respondent and Steve Jackson entered McCrory’s and went to the rear of the store. Robles observed respondent, who wore a red, hooded windbreaker, put sweaters into a yellow bag.

After Jackson walked out the door, respondent started to leave McCrory’s with a bag of clothing without paying. Robles approached him in the vestibule, between the inner and outer doors of the store, identified himself as a police officer and asked respondent what was in the bag. Respondent dropped the bag and ran out the door. Robles ran after him and grabbed him by the hood of his jacket. The jacket ripped and respondent again fled. Robles again stopped him in Mc-Crory’s parking lot. This time respondent turned and faced Robles and swung at him, but missed. According to Robles, respondent then reached behind his back, whereupon Robles, believing that respondent was reaching for a weapon, instinctively pulled out his police revolver. Robles struck respondent on the left side of the head -with his revolver. Respondent swung again. Robles then grabbed respondent and tried to hold him.

At that point, Robles was tackled from behind by Jackson and there was a two-on-one struggle witnessed by Martha Rodriguez, a cashier at McCrory’s. During the struggle, respondent struck and grabbed Robles’ face. Respondent then struck Robles’ forearm and attempted to wrestle the gun free from his grip. As Robles tried to hold onto his gun, respondent struck his head, allowing Jackson to pull the gun free. Robles was unable to recover the" gun, as his arm was held by respondent. As he tried to recover the gun with his other arm, Jackson pulled the trigger. The bullet hit Robles’ -wrist and he fell to the ground.

As Robles tried to get up, Jackson approached him from his front side and pointed the gun at his face. Respondent stood nearby and watched. Robles stated, “Don’t shoot, I’m a Chicago police officer.” Robles testified that he did not recall whether respondent did or said anything at this point. Robles and respondent testified that Jackson moved closer and stated, “I’ll shoot you punk.”

Respondent, who stated that he had not wrestled with Robles, testified that he told his friend not to shoot. Martha Rodriguez testified she was unable to say whether respondent said anything but that he stood next to the other two. All testified that Jackson then fired the gun. The bullet hit Robles’ shoulder and lodged in his neck. Unable to break his fall, Robles fell to the ground, hitting his face. Both Robles and Rodriguez testified that the two young men ran from the scene. Respondent testified that his friend yelled as they ran, “at least we got a pistol out of this.”

That same evening, at about 11 p.m., Officer John Scalise entered Jackson’s home, where a party was in progress. As he entered, he saw respondent in the front room carrying the same type of red jacket he had been told one of the offenders was wearing at the time of the shooting. When respondent noticed Scalise, he ran through the apartment. Scalise pursued him into the back bathroom, where he observed respondent sticking his jacket underneath a pile of clothes. Scalise pulled respondent out of the bathroom, advised him of his constitutional rights, and placed him under arrest.

The hearing was concluded on December 29, 1986. Respondent was found delinquent of theft, attempted murder, two counts of aggravated battery, and unlawful use of a weapon. On January 21, 1987, at the dispositional hearing, respondent was committed to the custody of the Elinois Department of Corrections.

I

Neither the common-law record nor the transcript of proceedings indicates that respondent was served with a summons or a copy of the petition as required by section 2 — 15 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 15). Respondent argues that since he was not served, the circuit court was without jurisdiction to proceed on the delinquency petition. The State maintains that respondent was afforded sufficient notice and, moreover, waived the present jurisdiction challenge by appearing and then stipulating to the court’s jurisdiction.

In this case, the basic requirements of due process and fairness, as enunciated by the United States Supreme Court in In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, were satisfied by the circuit court. Section 2 — 15 of the Juvenile Court Act, in its provisions relating to service upon minors, custodians, and legal guardians, provides a method for implementing the due process requirement of appropriate notice in juvenile proceedings. However, where a juvenile appears before the court and participates in proceedings, he waives the formality of service of process and voluntarily submits to the jurisdiction of the court. (People v. D.J. (1988), 175 Ill. App. 3d 491, 529 N.E.2d 1048; People v. Land (1988), 169 Ill. App. 3d 342, 523 N.E.2d 711.) The same waiver rule applies to parents. In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501; In re T.A. (1989), 181 Ill. App. 3d 1034, 537 N.E.2d 1118.

In the case at bar, respondent appeared in response to a juvenile petition alleging delinquent acts; he was represented by counsel; he made no objection to the court’s jurisdiction; his parents had actual notice and attended many of the proceedings; and he participated fully in the proceedings. He has thus waived any challenge to the court’s jurisdiction. People v. D.J., 175 Ill. App. 3d 491, 529 N.E.2d 1048; People v. Land, 169 Ill. App. 3d 342, 523 N.E.2d 711.

II

Respondent argues that though the evidence may show that he was guilty of theft, the evidence does not support a finding of delinquency for attempted murder, aggravated battery, and unlawful use of a weapon. He contends “there was no evidence to show respondent possessed the requisite specific intent to promote or facilitate the commission of the attempted murder, aggravated battery and unlawful use of weapons offenses.”

A person’s guilt may be established under the theory of accountability when it is shown that:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).)

A person is not accountable if it is shown that:

“(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.” Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c)(3).

Although accountability may be proven by circumstantial evidence (People v. Manley (1971), 1 Ill. App. 3d 693, 274 N.E.2d 373), mere presence or negative acquiescence alone is not enough to render a defendant accountable for a crime. (People v. Shaw (1981), 98 Ill. App. 3d 632, 424 N.E.2d 834.) However, when evidence, as here, shows that a defendant was present at the scene of the crime without opposing it, the trier of fact may competently consider this conduct with other circumstances in determining whether a defendant should be held accountable. People v. Shaw (1981), 98 Ill. App. 3d 682, 686, 424 N.E.2d 834.

Furthermore, when a person is shown to have been present at the crime without disapproving or opposing it, the trier of fact may consider this conduct and all the other circumstances and conclude that he assented to the commission of the crime and, therefore, aided and abetted the crime. (In re Gonzalez (1981), 95 Ill. App. 3d 750, 420 N.E.2d 720.) A person is accountable even though he did not participate in the overt act; if he shares the same intent to accomplish an unlawful purpose, the requisite intent exists. People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29; People v. Cole (1964), 30 Ill. 2d 375, 196 N.E.2d 691.

The cases cited by respondent, in support of his assertion that he was merely “there” but not accountable, are inapplicable to this case. The evidence in People v. Tillman (1971), 130 Ill. App. 2d 743, 265 N.E.2d 904, showed that the defendants were not present at the time and place of the acts of others which constituted robbery, attempted murder, and murder. (People v. Tillman (1971), 130 Ill. App. 2d 743, 749, 265 N.E.2d 904.) In fact, the evidence showed they were unwilling to participate or assist the others in the commission of those offenses. (People v. Tillman (1971), 130 Ill. App. 2d 743, 750, 265 N.E.2d 904.) Likewise, in People v. Barnes (1924), 311 Ill. 559, 143 N.E. 445, the evidence showed that the defendant was not present at the commission of the crime, but near the area. The evidence failed to show he participated in the crime. People v. Barnes (1924), 311 Ill. 559,563, 143 N.E. 445.

Respondent’s reliance on People v. Ramirez (1968), 93 Ill. App. 2d 404, 236 N.E.2d 284, is likewise misplaced. In that murder case, the defendant merely stayed temporarily in an apartment in which a body was tied and bound and which made no sounds. (People v. Ramirez (1968), 93 Ill. App. 2d 404, 410, 236 N.E.2d 284.) Ramirez’s alleged conduct was not shown to have occurred either before or during the commission of the murder; his mere presence was not enough to establish accountable guilt. People v. Ramirez (1968), 93 Ill. App. 2d 404, 410, 236 N.E.2d 284.

This court has construed section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c)) as incorporating the long-established “common-design rule,” which provides that “where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.” People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, citing People v. Kessler (1974), 57 Ill. 2d 493, 496-97, 315 N.E.2d 29.

In People v. Dotson (1986), 143 Ill. App. 3d 135, 492 N.E.2d 903, for example, the defendant stood near a victim, shot by his partner, who had announced a stickup. Afterwards the two men fled together. The defendant was found guilty of aggravated battery and of armed robbery, a specific intent crime, under the theory of accountability. The court held that accountability could be established “through a person’s knowledge and participation *** in the criminal act.” People v. Dotson (1986), 143 Ill. App. 3d 135, 142, 492 N.E.2d 903.

In this case, the evidence shows that respondent engaged in a scheme to steal clothing; engaged in a violent struggle with Robles after committing a theft in McCrory’s department store; restrained Robles’ arm while his companion discharged a bullet which hit him; and stood idly by when his companion shot Robles in the neck, causing severe nerve impairment. Though he did not personally pull the trigger of the gun, he is responsible for all acts committed in furtherance of the common design. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Finally, the evidence does not show that respondent did any affirmative act to terminate the commission of the theft or to stop the scuffle and shooting during the escape attempt. Even if his own testimony is fully credited, he used mere words in his failed attempt to stop Jackson from shooting Robles the second time.

The judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN YOUNG, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2215
    Opinion filed August 29, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Marie

      Quinlivan Czech, and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Nathan Young was indicted on two counts of murder and one count of armed violence in connection with the fatal shooting of Theodore Grimes on July 12, 1986. Following a bench trial, defendant was found guilty of murder and armed violence and sentenced to imprisonment for concurrent terms of 32 years for murder and 30 years for armed violence.

On this appeal, defendant claims that (1) the trial court erroneously permitted a State’s witness to testify in violation of the court’s order excluding -witnesses from the courtroom during the trial; (2) the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense; (3) the evidence at most supports a conviction for voluntary manslaughter; (4) the evidence does not support separate convictions for both murder and armed violence; and (5) the trial court erroneously considered victim impact statements at sentencing.

At approximately 11:30 p.m. on July 12, 1986, defendant shot and killed Theodore Grimes. Just moments before the killing, an altercation involving defendant’s brother, William Young, occurred on the comer of 113th and May Street in Chicago. Cornelius Lyons and Andrew McKinney both testified that at approximately 11:30 p.m. on July 12, 1986, they met Grimes and a third person named Fred on the corner of 113th and Morgan Street. The four of them walked down 113th Street on their way to a party at 116th and Hale Street. When they reached 113th and May Street, they encountered William Young and two other men named Hank and Jerry standing on the corner.

McKinney and Hank engaged in an oral altercation, after which William Young told McKinney that McKinney “ain’t tough.” McKinney replied “I know I’m not tough,” and William Young then pulled out a gun and started shooting. McKinney then told William Young that he would “kick his ass” because William Young was firing blanks. At that point, William Young, using either another gun or the same gun with bullets in it, pointed the gun at McKinney’s head. McKinney said “[g]o ahead, make my day” and William Young then shot McKinney in the shoulder.

The group, including Lyons, McKinney and Grimes, then walked six blocks to a bench in Ada Park. There, McKinney told Robert Wright that he was hurt and Wright asked if he wanted to be taken to the hospital. McKinney said yes but then asked Lyons to get Lyons’ father to take him to the hospital.

As Lyons was walking away to get his father, defendant “came up running” and shot Grimes in the face. Grimes had been sitting on top of the bench, fell off the bench after he was shot, and then crawled on the ground. After shooting Grimes in the face, defendant fired shots at Lyons and McKinney, walked “right up over” Grimes, shot Grimes in the head, and then ran away. McKinney testified that he grabbed a bottle and threw it at defendant as defendant was running away.

After the police arrived, Lyons took them to defendant’s house on Aberdeen Street and identified defendant as the person who shot Grimes.

Robert Wright testified that he was “shooting craps by a bench in Ada Park” at the time of the Grimes shooting. Wright saw defendant pull out a gun and shoot Grimes, and then saw Grimes “stumbleQ” over the bench he had been sitting on. Wright ran away after Grimes was shot and heard “several” more shots as he was running. On cross-examination, Wright testified that he had spoken with a man named Carl Thomas in the lockup on May 20, 1987 and told Thomas that defendant had killed one of “his partners.” Wright denied that he had told Thomas that defendant had killed one of his “folks.”

Michael Draine testified that he was “shooting dice” in Ada Park on the night of the Grimes shooting, at a distance of approximately 30 feet from the bench where Grimes had been sitting. Draine saw Lyons, McKinney, Grimes and “another guy named Fred” near the bench. Draine also saw McKinney bleeding from the shoulder and talking with Robert Wright. Draine heard some shots, saw defendant standing behind Wright and Grimes, and then saw Grimes fall after he “jumpfed]” over a bench. According to Draine, defendant stood over Grimes, shot Grimes again in the head, and only then started “firing shots at everybody.” Draine did not see anyone throw a bottle at defendant.

Chicago police officer Thomas Reid testified that on July 12, 1986, he responded to a call of shots fired in Ada Park and saw Grimes lying on the ground. Lyons and Draine took Reid and his partner to defendant’s house, where Lyons identified defendant as the man who shot Grimes. Reid prepared a police report approximately IV2 hours after defendant was arrested and also after he had interviewed Lyons and Draine. Reid’s report states that defendant shot McKinney rather than Grimes.

Gail Turnstall testified for the defense. Turnstall was in the lockup with Robert Wright on May 20, 1987. Turnstall testified that Wright told him that defendant had killed “one of his [Wright’s] folks” and that they would “get Nathan Young either here or when he get [sic] to the penitentiary.” At the time of his conversation with Wright, Turnstall was familiar with defendant’s case and had been defendant’s cell mate in jail. Turnstall had been sentenced to the penitentiary for violation of probation for robbery.

Chicago police officer Daniel McWeeny also testified for the defense. McWeeny had interviewed Lyons, McKinney and Draine regarding the Grimes shooting. According to McWeeny, Lyons said that defendant had shot McKinney in the arm and jumped over a park bench and shot Grimes; McKinney said that gang threats were exchanged on the night of the Grimes shooting and that defendant told Grimes “I got you now” and then started shooting; and Draine said that he saw Grimes run and trip over a park bench before he was shot. McWeeny also testified that he spoke over the telephone to Glenn Gibson, an investigator from the coroner’s office, and told Gibson that defendant had stated that Grims “threw a bottle at him, so he shot him.” According to McWeeny, defendant was the only person who said anything about a bottle.

Defendant then testified that at approximately 11:30 or 11:45 p.m. on July 12, 1986, he was walking alone through Ada Park. He passed six people standing in a group and, from a distance of 15 or 20 feet, heard one of them say “[tjhere’s his brother” and heard another say “[l]et’s get him.” Defendant was then hit in the back of the leg with a bottle. As the group approached him, defendant got scared and pulled out a gun, displaying it at chest level as a warning.

Defendant testified that the group “continued to approach” him and that, after he “realized they wasn’t [sic] going to stop[,]” he fired “towards the closest one.” He fired two shots and then saw “one guy go down as if he had tripped or something” about one or two feet in front of him. Defendant fired again “towards the ground” because he could not tell if the person who fell had been hurt or if he had a weapon and also because he had been told previously that it is not painful to be shot with a .22 caliber gun. Finally, defendant claimed that after he fired the shot towards the ground, he fired a few shots at the rest of the group and then ran home. On cross-examination, defendant admitted that he denied any involvement in the shooting when he initially spoke with the police.

The final witness for the defense was Glen Gibson, the investigator from the coroner’s office who had spoken with Officer McWeeny on the telephone. Gibson testified that McWeeny told him defendant had stated that he shot Grimes because Grimes threw a bottle at him.

After closing arguments, the trial court found defendant guilty as charged. On July 2, 1987, the trial court denied defendant’s motion for a new trial and proceeded to hear arguments in aggravation and mitigation. Over defendant’s objection, the trial court allowed the State to present two victim impact statements, one by Grimes’ stepfather and the other by Grimes’ mother. The trial court sentenced defendant to concurrent terms of 32 years for murder and 30 years for armed violence. However, the written sentencing order indicates that the two terms are to run consecutively.

I

Defendant maintains that the trial court erroneously permitted Andrew McKinney to testify because McKinney was in the courtroom during a portion of Cornelius Lyons’ testimony, despite the trial court’s order excluding witnesses from the courtroom during the trial. Defendant claims that McKinney had been in the courtroom for approximately 10 minutes listening to Lyons’ testimony and had overheard Lyons’ testimony regarding the locations of the shooting incidents. Defendant argues that the trial court abused its discretion in allowing McKinney to testify because McKinney had the opportunity to conform his testimony to that of Lyons.

Where the trial court has ordered witnesses excluded from the courtroom during the trial, it is within the discretion of the court to allow the testimony of a witness who has violated that exclusion order. (People v. Gibson (1969), 42 Ill. 2d 519, 525, 248 N.E.2d 108.) The trial court’s decision to allow the witness to testify will not be disturbed on appeal absent an abuse of that discretion. (People v. Wiatr (1983), 119 Ill. App. 3d 468, 473, 456 N.E.2d 686.) The burden of proof is on the party alleging error to show prejudice resulting from the trial court’s decision to allow the witness to testify. People v. Wiatr, 119 Ill. App. 3d at 474; People v. Johnson (1977), 47 Ill. App. 3d 362, 369, 362 N.E.2d 701.

In this case, McKinney had been down the hall testifying in another courtroom before entering the courtroom where defendant was on trial. McKinney’s presence in the courtroom was discovered shortly after defense counsel began cross-examining Lyons. The prosecution promptly notified the trial court of McKinney’s presence. McKinney was immediately removed from the courtroom and Lyons then concluded his testimony. The State called McKinney as its next witness and defense counsel objected to him testifying. The trial court asked McKinney how long he had been in the courtroom and what he had heard. McKinney stated that he had been in the courtroom for 10 minutes and heard Lyons testify only to where Lyons met McKinney, where Lyons was when McKinney was shot, and where Lyons went afterwards. After noting that Lyons’ entire testimony lasted approximately one hour, the trial court asked McKinney if he understood that he was to testify only as to his own observations based on his own recollection. McKinney replied in the affirmative and was then permitted to testify.

Defendant plainly was not prejudiced by McKinney’s testimony. A review of the record indicates that the only testimony McKinney overheard was testimony elicited on cross-examination that Lyons met McKinney on the corner of 113th and Morgan, intending to go to a party at 116th and Hale. When McKinney testified on direct examination, he also stated that he met Lyons on the corner of 113th and Morgan, intending to go to a party at 116th and Hale. However, McKinney testified further that the party was being given by one of his ex-girlfriends, a statement not elicited from Lyons on cross-examination. This suggests that McKinney gave his own account of his intention to go to a party that night and did not conform his testimony to that of Lyons. Even if McKinney had conformed his testimony to that of Lyons, defendant was not prejudiced by McKinney’s testimony, because McKinney plainly gave his own account of the shooting incidents and the events that occurred in Ada Park.

II

Defendant maintains next that the State failed to prove beyond a reasonable doubt that he did not shoot Grimes in self-defense. Defendant claims that the State’s proof was unsatisfactory because of inconsistencies (1) between Lyons’ and McKinney’s testimony regarding what McKinney said during the altercation on the corner of 113th and May; (2) between Lyons’ and McKinney’s testimony regarding whether any gang threats were exchanged; (3) in Lyons’ testimony regarding who shot McKinney; (4) between Lyons’ and Draine’s testimony regarding when they saw defendant in Ada Park; (5) between the testimony of Lyons and McKinney on the one hand, and Draine on the other hand, regarding whether Grimes fell off or jumped over the bench after he was shot; (6) between McKinney’s and Wright’s testimony regarding whether McKinney was sitting or standing when defendant appeared; (7) regarding whether defendant fired at the group before or after shooting Grimes the second time; (8) in the evidence regarding whether defendant turned Grimes over before shooting him again; (9) in the evidence regarding the distance from which Grimes was shot; and, finally, (10) between Officer Reid’s report and the testimony of the other witnesses regarding whether defendant shot McKinney, rather than Grimes.

Defendant maintains that, contrary to the testimony of the State’s witnesses, his own account of the shooting incident was clear, convincing, and corroborated. Defendant notes in particular that Glenn Gibson, the investigator in the coroner’s office, testified that Detective McWeeny told him, consistent with defendant’s self-defense theory, that defendant had stated he shot Grimes after Grimes threw a bottle at him. Defendant maintains further that the State’s version of the events is “nonsensical” and “contrary to human experience” because the fact that William Young, defendant’s brother, was not injured by McKinney and his group meant that defendant did not have any motive to retaliate, and because one person would not “go out after a group of gang members who are hanging out in a park at that hour of the night.” Defendant argues that it is easier to believe McKinney’s group would retaliate against defendant for the attack by William Young.

Self-defense is an affirmative defense (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 14), and once it has been raised by the defendant, the State has the burden of disproving it beyond a reasonable doubt. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) Whether an otherwise criminal act is justified under the law of self-defense depends on all the surrounding facts and circumstances of the case and is to be determined by the trier of fact. People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.

In a bench trial, it is the function of the court to determine the credibility of the witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649.) The trier of fact is not required to believe the defendant’s version of the events. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358; People v. Liddell (1975), 32 Ill. App. 3d 828, 830, 336 N.E.2d 815.) Rather, in weighing the defendant’s version of the incident, the trier of fact should consider the probability or improbability of the defendant’s account, the circumstances surrounding the crime and the relevant testimony of other witnesses. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358; People v. Walden (1976), 43 Ill. App. 3d 744, 749, 357 N.E.2d 232.) The court’s determination will not be disturbed on appeal unless it is palpably erroneous. People v. Lester (1981), 102 Ill. App. 3d 761, 767, 430 N.E.2d 358.

In this case, defendant was the only witness who testified that a bottle was thrown before the shooting or that anyone said “[tjhere’s his brother” and “[ljet’s get him.” On the other hand, the State’s witnesses testified that they saw defendant shoot Grimes in the face. Lyons, McKinney, and Draine testified that they saw defendant shoot Grimes a second time in the head after Grimes had fallen off the bench and was crawling on the ground. Only Draine testified that defendant fired at the crowd after the second shot to Grimes’ head. The other witnesses testified that defendant fired into the crowd between the first shot to Grimes’ face and the second shot to Grimes’ head. Finally, defendant’s account of the shooting incident is unconvincing because it is improbable that defendant happened to be strolling through the park; that his initial shots, fired to scare off his assailants, both happened to strike Grimes in the head; and that he shot Grimes again because he did not think a .22 caliber gun could have hurt Grimes.

The trial court heard the testimony and did not believe defendant’s account of the shooting incident. The trial court also considered the discrepancies in the testimony of the State’s witnesses in weighing that testimony. The trial court concluded that there was sufficient evidence presented at trial to disprove beyond a reasonable doubt that defendant shot Grimes in self-defense. Given the evidence presented that defendant walked over to where Grimes was crawling on the ground and shot him in the head, the trial court’s finding is not palpably erroneous and will not be disturbed on appeal.

III

Defendant maintains that the evidence at most supports a conviction for voluntary manslaughter. Defendant argues that the only credible account of the Grimes shooting was his own testimony at trial that he acted in self-defense. Defendant maintains that, even if the State proved beyond a reasonable doubt that he did not act in self-defense, the trial court should have found that he acted unreasonably in defending himself.

Voluntary manslaughter is the intentional or knowing killing of another committed under an unreasonable belief that deadly force is necessary. (Ill; Rev. Stat. 1985, ch. 38, par. 9 — 2(b).) Thus, voluntary manslaughter is similar to the defense of self-defense in that both involve defendant’s subjective belief at the time of the killing that deadly force was justified. The difference is the reasonableness of that belief. If the trier of fact finds that the defendant did not act in self-defense, but nevertheless finds that the defendant acted under a belief, albeit unreasonable, that force was justified, then the crime will be reduced from murder to voluntary manslaughter. (People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.) However,

the reviewing court will not reduce a conviction for murder to voluntary manslaughter where the trier of fact has reasonably concluded that the defendant had no basis whatsoever for his belief that deadly force was necessary to protect his own life. People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.

In People v. Eshaya (1986), 144 Ill. App. 3d 757, 494 N.E.2d 772, for example, the court rejected the defendant’s argument that his conviction for murder following a jury trial should be reduced to voluntary manslaughter on the ground that he unreasonably believed that deadly force was justified. In that case, the State’s witnesses testified that the victim and his fellow gang members were unarmed when the defendant shot the victim from a distance of 20 feet. The defendant claimed that the victim and his fellow gang members were armed with baseball bats, knives, and pool cues. The jury found the defendant guilty of murder. On appeal, the court refused to reduce defendant’s conviction to voluntary manslaughter, because the jury could have reasonably concluded that there was no justification whatsoever for defendant’s use of deadly force.

In this case, the State’s witnesses testified that defendant approached Grimes, shot him in the face, fired several shots at other people nearby, and, finally, walked over to where Grimes was crawling on the ground and shot him again in the head. Defendant testified that he was “scared” and, like the defendant in Eshaya, believed that Grimes and others were armed. However, it is plain that the trial court did not credit defendant’s testimony. Rather, in finding defendant guilty of murder, the trial court concluded that there was no basis whatsoever for defendant’s alleged belief, reasonable or unreasonable, that deadly force was necessary to protect his own life. That conclusion is not palpably erroneous, because it is consistent with the evidence presented at trial and contrary only to defendant’s own testimony. Accordingly, as in Eshaya, defendant’s conviction for murder will not be reduced to voluntary manslaughter.

IV

Defendant maintains that his armed violence conviction must be vacated because his convictions for murder and armed violence were based on the same acts. Defendant argues that only one conviction was permissible because “there was only one murder victim and only one act of murder.” Defendant also maintains that the sentencing order incorrectly indicates that he was sentenced to consecutive terms of imprisonment. Defendant argues that because his armed violence conviction must be vacated, and because the sentencing order is incorrect, his case should be remanded for resentencing.

In People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, the Illinois Supreme Court held that the defendant’s conduct consisted of separate physical acts and supported convictions for attempted murder and armed violence. In that case, the evidence at trial established that the defendant first cut the victim’s neck with a machete, then cut another person’s fingernail, and finally moved the machete back to the victim’s neck and severed the victim’s windpipe with a “pretty hefty yank.”

In this case, the two offenses were likewise based on separate acts. Three State’s witnesses testified that defendant first shot Grimes in the face, then fired at a crowd in a different direction, and, finally, walked over to where Grimes was crawling on the ground and shot him in the head. The initial shot to Grimes’ face and the second shot to Grimes’ head 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 Lyons and McKinney. It follows that the evidence supports convictions and concurrent sentences for murder and armed violence. However, as both parties agree, the written sentencing order should be clarified to indicate that defendant received concurrent terms of imprisonment.

V

Finally, defendant maintains that the trial court erred in considering victim impact statements at his sentencing hearing. Specifically, defendant notes that in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the Supreme Court held that victim impact statements may not constitutionally be considered in aggravation at capital sentencing hearings. Defendant asserts that this court extended Booth to noncapital sentencing hearings in People v. Fellela (1st Dist. 1987), No. 85 — 3515 (unpublished order under Supreme Court Rule 23).

However, the victim impact statements were properly considered at sentencing under the Illinois Bill of Rights for Victims and Witnesses of Violent Crimes Act (Ill. Rev. Stat. 1985, ch. 38, par. 1401 et seq.). In Booth, the United States Supreme Court held that victim impact statements may not constitutionally be introduced at sentencing in capital cases. However, the court expressly stated that its holding did not preclude the use of victim impact statements in noncapital cases. Indeed, the Illinois Supreme Court recently decided in People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, that victim impact statements may constitutionally be considered as factors in aggravation at non-capital sentencing hearings. Even before Turner was decided, this court declined to extend Booth to noncapital sentencing hearings in People v. Scott (1989), 180 Ill. App. 3d 418. Finally, defendant’s reliance on Fellela, a Rule 23 order, is entirely misplaced.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. We remand to the trial court for the limited purpose of correcting the written sentencing order to indicate that defendant received concurrent terms of imprisonment.

Affirmed and remanded.

HARTMAN and SCARIANO, JJ., concur.