author: PRESIDING JUSTICE INGLIS JUSTICE McLAREN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY C. CHATMON, Defendant-Appellant.
    Second District
    No. 2—90—1426
    Opinion filed November 17, 1992.
    Rehearing denied December 18, 1992.

      McLAREN, J., dissenting.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A jury found defendant, Timothy Chatmon, guilty of first-degree murder pursuant to section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). He was sentenced to 35 years’ imprisonment. He raises the following issues on appeal: (1) whether his motion to suppress evidence obtained during a traffic stop was improperly denied; (2) whether the State’s key witness’ testimony was so fraught with inconsistencies that it raises a reasonable doubt of defendant’s guilt; (3) whether the State improperly called a witness solely to impeach her; (4) whether the trial court erred in excluding portions of a doctor’s evidence deposition that impeached the credibility of the State’s key witness; (5) whether the trial court erred in refusing to rule on or grant his motion for a new trial; and (6) whether his sentence is excessive. We affirm.

On September 8, 1989, a body, later identified as Billy Joe Simmons (the victim), was discovered in a cornfield outside of Rockford, Illinois. Defendant, Frederick (Ricky) Lambert and Clementhis Lambert were charged with first-degree murder. Defendant’s trial was severed from the trials of his codefendants and commenced on January 24, 1990.

The State’s key witness was Lori Mullins, a prostitute whose pimp was Clementhis Lambert. Mullins testified after receiving immunity from prosecution. Mullins identified defendant and stated that on August 6, 1989, at approximately 11:30 p.m., she, Clementhis and defendant drove to the Champion Park apartments on Chestnut Court, where the victim’s girlfriend lived. Ricky Lambert also arrived in a separate vehicle. They drove there so Clementhis could talk with the victim. Ricky walked toward the apartment while Clementhis and defendant stood between two apartment buildings. The victim came out of the home and spoke with Ricky. Ricky told the victim that he wanted to talk to him between the buildings.

Mullins further stated that an argument ensued. Clementhis pulled out a gun and shot the victim, who fell to the ground. Ricky also fired a shot that hit the victim. Defendant leaned over the victim and shot him once. At the time of the shooting on Chestnut Court, Mullins recalled seeing Louis Leavy and Odell Simmons. She did not remember seeing them after the shots were fired.

Clementhis, Ricky and defendant placed the victim’s body in the front passenger seat of Ricky’s car. Defendant sat in the backseat. Mullins and Clementhis led the way in Clementhis’ car. Mullins stated that the victim was taken to the outskirts of Rockford on Cook Road. Mullins was familiar with this road because she had taken her clients there for seclusion. Earlier that day, Mullins had mentioned to Clementhis that Cook Road was isolated, and the two of them drove out to view the area.

When the group arrived, Clementhis walked toward Ricky’s car. Clementhis opened the passenger side door, pulled out a gun and fired a shot at the victim. Clementhis then sat in the backseat behind the driver, Ricky, and fired another shot at the victim. Defendant was still seated in the backseat directly behind the victim.

The victim’s body was then placed in the cornfield adjacent to the roadway. Mullins recalled seeing Clementhis and Ricky “fumbling around” the victim’s neck and fingers. Clementhis returned to the car with chains in his hands.

Ricky and defendant left the scene in Ricky’s car. Mullins and Clementhis drove to Ricky’s girlfriend’s home. Ricky arrived without defendant and gave his girlfriend a chain with a ring around it. Mullins, Clementhis and Ricky drove to a car wash to clean Ricky’s car. They then drove to Springfield; Mullins and Clementhis were in Clementhis’ car, and Ricky drove his own vehicle. Mullins further testified that she used the name Susan Smith in Springfield. She then identified her Springfield motel registration of August 7, 1989. She testified that they registered at approximately 4 a.m.

On cross-examination, Mullins was impeached with the two prior statements given to the police and her grand jury testimony. In Mullins’ first statement to the police, Mullins claimed that, before the shooting on Chestnut Court, Clementhis and the victim had an argument in which guns were drawn. She claimed that Clementhis killed the victim and dumped the body in a field while she was at Clementhis’ sister’s house. Clementhis then admitted killing the victim while he and Mullins were driving to Springfield.

In Mullins’ second statement to the police, she described a shootout between Clementhis and the victim at “The Taste of Honey,” a bar in Rockford. She claimed that the shoot-out occurred because the victim owed Clementhis money for drugs. The shoot-out occurred at approximately 3 p.m., but, on cross-examination, Mullins stated that it occurred at 11 a.m. Defendant was also involved in the shoot-out. Mullins stated that no one was hurt and the victim left the area. However, at trial, Mullins claimed that Clementhis gave the victim a ride to his mother’s home after the shoot-out.

Also, in Mullins’ second statement to the police, she stated that, after the victim was shot at the Champion Park apartments, the victim’s body was left there while Mullins, Clementhis and Ricky Lambert, and defendant drove away. They all drove to Ricky’s girlfriend’s home. The time was approximately 8 or 9 p.m. Mullins told the police that they all returned to Chestnut Court, wrapped the victim’s body in a blanket, and put the victim in Ricky’s trunk. When they arrived at the cornfield, the victim was not shot again, but his body was carried into a field. While returning to Rockford, Ricky pulled off the road and threw out the blanket in which the victim’s body was wrapped. She claimed that they returned to Ricky’s girlfriend’s home at 3 or 4 a.m. At trial, Mullins viewed a drapery found near the crime scene and stated that the police had never shown her the drapery before. She also acknowledged that the police stated she could be charged as an accessory to murder if she did not cooperate with them.

When Mullins testified before the grand jury, she also stated that Clementhis gave the victim a ride to his mother’s home after their shoot-out at “The Taste of Honey.” However, she described the disposal of the victim’s body differently. She claimed that, when the group arrived at the cornfield on Cook Road, Clementhis shot at the victim from the passenger side door. She did not state that Clementhis fired a second shot while sitting behind the driver’s seat. On cross-examination, Mullins acknowledged that, before her grand jury testimony, the State’s Attorney told her that no blood was found in Ricky’s trunk so her previous statement to the police could not be true.

Mullins also testified on cross-examination that she spoke with a private investigator, William Morrison, about the incident. She told him that Ricky and Clementhis did the shooting on Chestnut Court. She did not tell him that defendant also shot the victim, but stated that he was present.

The State’s other main witness was Louis Leavy, the victim’s cousin. He testified that he grew up with defendant, the victim and the Lambert brothers. On August 6, 1989, at midnight, defendant, Clementhis and Ricky were outside the apartment complex. Everyone was talking and getting high on drugs. Leavy denied hearing anything unusual at that time. Leavy acknowledged signing the statement in which he stated that, around midnight on August 6, 1989, he heard Clementhis, Ricky, defendant and the victim talking on Chestnut Court. He claimed that Clementhis, Ricky and defendant had their guns drawn. He heard shots and hid behind a garbage stall. When the shooting stopped, Leavy saw Clementhis and Mullins leave in Clementhis’ car. Defendant and Ricky left in another car. Leavy then heard someone say that the victim had been shot. On cross-examination, Leavy claimed that he got his days mixed up in his previous statement because he was high and drunk.

The victim’s mother testified that her son wore rings on each finger and a diamond engagement ring on a chain around his neck. She then identified the engagement ring as the one taken from Ricky’s girlfriend.

Roshell Woods was at his girlfriend’s apartment on Chestnut Court on the night of August 6, 1989. Around midnight, Woods heard three or four people cursing at one another. This was followed by three or four gunshots. A few minutes after the gunshots, Woods looked out the window and saw what he believed was one light-colored and one dark-colored Cadillac leave the area. On cross-examination, Woods acknowledged that he may have heard the shots between 1 and 2 a.m.

Stacy Lovings, a resident of the Champion Park apartments, testified that she had previously spoken with a police officer about the victim’s murder. She did not recall telling Officer Mark Fritz that she saw Clementhis, Ricky, defendant and the victim arguing on August 6, that she heard gunshots and saw Clementhis, Ricky and defendant drive away in two Cadillacs, and that she saw blood leading from the spot of the argument to the parking lot. Officer Fritz then testified about his interview with Lovings. He stated that, at the time of the interview, Lovings knew defendant.

The victim’s girlfriend, Patti Tennial, identified the ring at trial as the one the victim gave her as the engagement ring that she returned to him. However, this identification conflicted with a previous statement she gave to a private investigator in which she said the diamond ring had a white gold setting. The victim’s girlfriend further testified that she saw the ring after the victim’s death on Ricky Lambert’s girlfriend’s finger. She also identified the gun found during a traffic stop involving defendant as the victim’s gun. She stated that the gun was in the victim’s possession two days before he disappeared.

The victim’s girlfriend further testified that defendant and the victim were good friends. Defendant would stay over at her home with the victim. She did not see defendant and the victim argue before the victim’s death. On August 6, 1989, she last saw the victim between 9:30 and 10 p.m. She did not hear any shooting that night. She also testified that Ricky Lambert did not come to her door to get the victim on that evening. However, she testified that she went to sleep between 9:30 and 10 p.m. and slept until morning. The victim’s girlfriend stated that defendant came to her home looking for the victim two days after the murder allegedly took place.

Officer David Jocson, who made a traffic stop involving defendant on August 14, 1989, identified the gun at trial as the one he seized during his search of the vehicle. Jocson testified that, when he asked defendant about the gun, defendant denied ever seeing it before.

Officer Fritz, a special agent with the Illinois State Police, testified that he interviewed Ricky Lambert’s girlfriend and recovered from her a gold-banded, diamond ring. He later interviewed Louis Leavy. Fritz testified that Leavy was able to communicate with Fritz. Fritz did not detect any unusual odor emanating from Leavy. Fritz then identified Leavy’s statement, Leavy’s signature and his own signature. Fritz also testified that Leavy told him, after Leavy had given his statement claiming that he did not see the victim’s shooting, that he did see the shooting. Fritz did not take another statement, but put that information in his report.

Richard Cass, a crime technician with the Illinois State Police, testified that he examined the scene where the victim’s body was found and collected some bluish-tinted glass. Cass also recovered glass from the floor and molding in the right front passenger door of Ricky’s silver Cadillac, as well as carpet samples, molding and an armrest. Cass testified that Ricky’s Cadillac had no broken windows. Cass found no bullet holes in the vehicle. Cass found no evidence that the interior of the vehicle had been cleaned recently. However, Cass found what he believed were bone-like fragments inside the right rear floorboard. Cass testified that none of the glass had bloodstains on it.

Cynthia Barrera, a forensic scientist, testified that she tested stains taken from Ricky’s vehicle. She tested the molding, armrest, carpet and metal from Ricky’s vehicle and found that some items had human bloodstains on them. Barrera further testified that she had no way to determine whose blood was on the items. Barrera stated that the stains did not look like they had been wiped, although some of the stains were small specks. One stain on a piece of metal trim was 41/2 inches long and one-quarter inch wide. A sweatshirt found near the victim’s body also had bloodstains on it. The sweatshirt had many holes, but Barrera could not say that they were bullet holes.

Dr. Larry Blum, a forensic pathologist, testified that the victim’s body had an entrance bullet wound in the back left side of his head and an exit bullet wound in the right front side of his head. Powder particles around the wound demonstrate that the victim was shot at close range. Because the body was significantly decomposed, Dr. Blum could not determine whether there were bullet wounds in the body. If the victim was shot in the chest, there was a 50% chance that the bullet would hit bones in the chest area. Dr. Blum found no bone damage in the chest area. However, 40 small pellets were discovered in the lower extremities.

James Erceli, a forensic scientist, compared glass recovered from the cornfield and glass recovered from Ricky’s car. Although both samples of glass had similar characteristics and were probably of common origin, Erceli could not conclude that they originated from the same place. Each was tempered glass that could come from an automobile window, the doors or windows of a business, or possibly a shower door.

Officer Michael Easton testified that an automobile trip from Rockford to Springfield would take two hours and 45 minutes, travel-ling 5 to 10 miles an hour over the speed limit. Also, one can travel from the Champion Park apartments to Cook Road and Wygert Road in 14 minutes.

After defendant’s motion for a directed verdict was denied, he presented his case. Derek Cross, the manager of the car wash where Ricky’s car was allegedly taken to be cleaned, testified that the car wash closed at 10 p.m. However, the sprayers and vacuums could be used. The lights in the stalls were turned off automatically at 10 p.m. The floodlights in the lot remained lit.

Gerald Stewart, the night auditor at Red Roof Inn in Springfield, testified that he registered a Susan Smith at 3:46 a.m. on August 7, 1989. The registration slip reflected a check in time of 4 a.m.

Moneek Simmons, the victim’s sister, testified that she saw the victim, Clementhis, Ricky, Mullins and defendant outside her apartment on Chestnut Court at midnight the night of August 6, 1989. They talked for 20 or 30 minutes before she left. She stated that the victim and defendant were good friends. She also stated that she never saw the victim again after that night.

Walter Simmons, the victim’s cousin, testified that he was with defendant and Clementhis drinking beer and listening to music on Chestnut Court from 11 p.m. until 4 a.m. Walter also recalled seeing the deceased during that time walking to Patti Tennial’s apartment. Walter recalled no gunshots that night. Walter last saw defendant at 11:30 p.m. that evening.

Maxine Russell, the victim’s sister, testified that a week after the shooting, Clementhis and Mullins were having an argument at her home. Maxine heard Mullins say that, if Mullins could not have Clementhis, nobody could have him. Maxine discovered that Clementhis was leaving Mullins.

Dr. Frederick McNelly, a clinical psychologist, testified that Mullins told him that she had taken cocaine in the past but not the previous two years.

William Morrison, a private investigator, testified that he interviewed Lori Mullins from a Billings, Montana, jail in December 1989. Mullins told him that, in exchange for her testimony in this case, she was promised help with pending criminal charges in Winnebago and Effingham Counties.

Officer Fritz was again called to testify and stated that he interviewed Roshell Woods about the murder. Woods could not recall whether he heard the argument outside his girlfriend’s apartment on a weekday or weekend. Woods stated that it was between 1 and 2 a.m. Woods could not describe the type of cars he saw driving away. Fritz also testified that, when he interviewed Mullins on September 19, 1989, she told Fritz that she arrived in Springfield at 7 a.m. on August 7,1989.

William Burrell, the owner of “The Taste of Honey,” testified that, on August 6, 1989, at approximately 11 p.m., bullets were fired into the bar. Burrell recognized the victim as one of the people doing the shooting. Burrell did not allow the victim in his bar because of an incident that occurred at another bar owned by Burrell.

Faye Cole, defendant’s girlfriend, testified that, on August 6, 1989, around 10 p.m., she, defendant and the victim were at “The Taste of Honey.” Cole stated that a shooting occurred involving the victim. After the shooting, defendant gave the victim a ride to Chestnut Court. While there, Cole saw the victim give defendant a gun. They remained on Chestnut Court drinking beer until 2:30 a.m. Clementhis and Mullins had already left. The victim was still there. Defendant slept on Cole’s couch that evening. Cole identified the gun seized by the police as the gun the victim gave defendant that night.

Officer Easton testified that, after Mullins gave her second statement to police, they used a helicopter to attempt to locate the bloody blanket. Drapes were found that were not analyzed. Easton acknowledged that Mullins changed her story about the victim’s body being placed in the trunk after she was told that no blood was found in the trunk. Mullins was not told that bloodstains were found inside the car.

Jessie Leach testified that he knew the victim but they were not friends. Leach acknowledged that he had a confrontation with the victim in July or August 1989. Leach was not allowed to testify concerning the confrontation.

Defendant took the stand and testified that, on August 6, 1989, at approximately 10 p.m., he was at “The Taste of Honey.” The victim asked defendant for the gun the victim had given him about a month earlier. The victim fired shots at the bar. Defendant gave the victim a ride and put the gun in his trunk. They drove to the Champion Park apartments after getting some bootlegged beer. Clementhis and Mullins followed in another car. He, the victim, Clementhis, Leavy, and others “hung out” on Chestnut Court. Clementhis and Mullins left after 15 minutes to go to Springfield. When defendant and Cole left the area about 2 a.m., the victim was still there. Defendant took the gun from the trunk and brought it into Cole’s home. Defendant slept through the evening. At noon the next day, defendant went to the Champion Park apartments for a scheduled meeting with the victim. The victim never arrived.

Defendant further testified that, on August 14, 1989, he was stopped by the Illinois State Police while driving to Springfield. Defendant identified the gun seized during the traffic stop as the gun given to him by the victim. Defendant acknowledged lying to Officer Jocson when defendant said it was not his gun. Defendant denied ownership of the gun because it was illegal. Defendant denied shooting the victim. On cross-examination, defendant admitted that he did not tell the police that the victim was wearing a sweatshirt that night.

In rebuttal, Officer Fritz testified that defendant told Fritz he drove a 1976 Granada. Fritz also stated that defendant told him the victim was wearing a T-shirt, not a sweatshirt, that evening. Ron White, assistant State’s Attorney for Winnebago County, testified that he made no promises to Lori Mullins concerning her pending cases in Winnebago and Effingham Counties.

The jury found defendant guilty of first-degree murder. Defendant filed pro se motions for the arrest of judgment and a new trial. After counsel was appointed, another motion for a new trial was filed. The affidavit of Latanya Latin was attached to the motion. She claimed that Jessie Leach threatened to kill the victim. After the victim’s disappearance, Leach told Latin that he did not have to worry about the victim anymore. Defendant’s motion was denied. Defendant was sentenced to 35 years’ imprisonment.

Thereafter, defendant filed a motion to reconsider the denial of his motion for a new trial based on newly discovered evidence. Defendant argued that, during Clementhis Lambert’s trial, Lori Mullins testified that she did not see or hear defendant shoot the victim. Defendant’s motion to reconsider was denied. He then filed a timely appeal.

MOTION TO SUPPRESS

At issue is whether the trial court erred in denying defendant’s motion to suppress the gun recovered during the August 14, 1989, traffic stop.

Before trial, defendant moved to suppress evidence the police discovered during a traffic stop. At the suppression hearing, Officer Jocson testified that, on August 14, 1989, at approximately 10 p.m., he was working on Route 1-55 in McLean County when he made a stop. Two vehicles had pulled onto the shoulder, a white Escort and a blue Nova. Both occupants of the Escort exited the car, and the driver urinated on the shoulder of the highway. Jocson activated his spotlight and emergency lights and approached the vehicle. Jocson believed they were violating section 11 — 1303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 1303.

Jocson called in the Escort registration. The vehicle was registered to Clementhis Lambert. Jocson walked up to the passenger side of the vehicle and saw two black males sitting in the car. Jocson asked to see each of their driver’s licenses. The passenger was defendant, and the driver, who did not produce a driver’s license, identified himself as Jessie Allen.

While speaking to the men, Jocson observed in plain view a partially burned cannabis cigarette. Jocson also smelled the odor of cannabis. Jocson ordered the men out of the car, searched the interior of the car, and found two plastic packets, one containing cannabis and another containing cocaine. Defendant and Allen were arrested. Another search revealed a .38 caliber handgun.

Clementhis Lambert was one of the two people in the blue Nova. Clementhis was subsequently arrested by another officer at the scene for an outstanding warrant. After all the evidence was presented at the hearing, the trial judge ruled as follows:

“I think that the statute forbids stopping or standing on such a highway, and if such stopping or standing occurs then I think the burden is on the person who stops to establish that the stop is a valid emergency stop which should not be punished by being considered to be a violation of the law.
I think the officer had a right to approach this vehicle to determine why the stop occurred.”

Thus, the trial court denied defendant’s motion to suppress.

Defendant contends that the officer had no basis to make an investigatory traffic stop. He argues that the vehicle was legally parked on the shoulder of Route 1-55, a controlled-access highway. Defendant claims that the definition of “roadway” in the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 179) excludes the shoulder. Thus, defendant contends that he was not stopped on the highway because he was off the highway, on the shoulder. Defendant alternatively contends that, even if stopping is allowed on a controlled-access highway only for emergencies, the driver’s need to urinate was an emergency.

The State contends that the officer did not make an investigatory stop, but approached the stopped vehicle because a violation of the Illinois Vehicle Code was being committed: parking where prohibited. The State argues that the shoulder is considered part of the highway, citing Amster Corp. v. Aurora Fast Freight (1986), 141 Ill. App. 3d 705, so the “shoulder” of a controlled-access highway is not a shoulder on which vehicles may lawfully stop. The State also argues that the driver’s need to urinate was not an emergency. The State alternatively contends that, even if the trial court erred in admitting the evidence from an illegal stop, the error was harmless because the gun was not crucial evidence in the case.

A trial court’s decision on a motion to suppress will not be overturned on review unless that decision was clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162; People v. Simmons (1991), 210 Ill. App. 3d 692, 696.) The defendant has the burden to make a prima facie showing that the police illegally obtained the evidence. (Simmons, 210 Ill. App. 3d at 696.) Once this burden is satisfied, the burden of proof shifts to the State to show that the search was legal. Simmons, 210 Ill. App. 3d at 696.

Although both parties wish to debate whether defendant violated section 11 — 1303(a)(1)(j) of the Illinois Vehicle Code, such a determination need not be made for purposes of determining whether the gun seized from defendant must be suppressed. The key question is whether Officer Jocson had a reasonable, articulable suspicion of criminal activity such that he could approach the vehicle. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Murray (1990), 137 Ill. 2d 382, 387.) Here, Officer Jocson testified that he approached the vehicle because he believed the driver was violating section 11 — 1303 of the Illinois Vehicle Code. Generally, section 11 — 1303(a)(1)(j) prohibits stopping, standing or parking on any controlled-access highway except under certain circumstances. We believe the officer was within constitutional bounds when he approached the vehicle to determine the reason why the vehicle was parked. Then, as suggested by the trial judge, the occupants of the vehicle have the burden to establish that the stop was permissible under the exceptions to section 11 — 1303.

Officer Joscon’s actions after approaching the vehicle were also within constitutional bounds. As Jocson was speaking to the occupants, he observed in plain view a partially burned cannabis cigarette. The officer’s detection of marijuana then gave him probable cause to search the vehicle. (See People v. Graves (1990), 196 Ill. App. 3d 273, 279.) A second search after defendant’s lawful arrest revealed the handgun in question. We hold that the officer had a reasonable, articulable suspicion to approach the vehicle. Thus, his subsequent discovery of the handgun was lawful, and the handgun need not be suppressed.

Defendant’s reliance on People v. Reusch (1991), 209 Ill. App. 3d 991, is misplaced. Although this court found that the investigatory traffic stop was improper where the driver pulled off the road to urinate (209 Ill. App. 3d at 993), the case is inapplicable because the stop occurred on a rural road. (Reusch, 209 Ill. App. 3d at 992.) Here, the stop occurred on a controlled-access highway, where stopping is prohibited under section 11 — 1303(a)(1)(j) of the Illinois Vehicle Code.

REASONABLE DOUBT

Defendant contends that he was not found guilty beyond a reasonable doubt because the testimony of the State’s main witness, Lori Mullins, contained major contradictions that raise serious doubts about her credibility. Mullins stated that a shoot-out took place between defendant, the victim and Clementhis before the murder on Chestnut Court, but she gave different accounts about when and where this took place. Mullins also gave contradictory versions of how the victim was transported to the cornfield where his body was found. Defendant argues that these inconsistencies, coupled with weak corroborating evidence, create a reasonable doubt of his guilt.

The State contends that defendant was proved guilty beyond a reasonable doubt. The State argues that the jury heard Mullins’ inconsistencies and still found her to be a credible witness. The State also argues that Mullins’ testimony was corroborated by the statements of Louis Leavy and Stacy Lovings as well as the glass found in Ricky Lambert’s car and found near the victim’s body. Finally, the State argues that Mullins was steadfast in her testimony regarding the murder and defendant’s participation in it.

On review, a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (People v. Burrows (1992), 148 Ill. 2d 196, 224.) It is not this court’s function to retry a defendant when considering a challenge to the sufficiency of the evidence. (People v. Steidl (1991), 142 Ill. 2d 204, 226.) The jury weighs the credibility of witnesses and resolves the conflicts or inconsistencies in their testimony. (People v. Frieberg (1992), 147 Ill. 2d 326, 360.) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Frieberg, 147 Ill. 2d at 360, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

With the principles above in mind, we find that defendant was found guilty beyond a reasonable doubt. This is not to say that Mullins’ testimony and prior statements to police did not contain inconsistencies. However, these inconsistencies were resolved by the jury as fact finder, a task solely within its province. The jury was also aware that Mullins had received immunity from prosecution. Mullins’ motive to lie was squarely before the jury, and it chose to believe her testimony.

Mullins’ second statement to the police, her grand jury testimony, and her trial testimony consistently described a shoot-out between defendant, Clementhis and the victim prior to the murder. Mullins acknowledged at trial that her first statement to the police was a lie because she feared Clementhis. Mullins was unclear about what time of day the shoot-out occurred, stating at various times that it occurred at 11 a.m., 3 p.m., 8 p.m. and 11 p.m. Mullins explained that she was “mixed-up” about time periods. Although Mullins was confused about the time of day, she was consistent in testifying about the shoot-out and the people present.

Defendant also claims that Mullins gave inconsistent accounts about where and how many shots entered the victim’s body. Mullins stated each time, excluding her first statement to the police, that the victim was shot in the body one time each by defendant, Ricky and Clementhis. At the grand jury hearing, Mullins testified that Clementhis shot the victim in the head while the victim was seated in Ricky’s car on Cook Road. At trial, Mullins expounded on this testimony by claiming that Clementhis shot the victim twice in the head in Ricky’s car. We will not include yet another version of the shooting Mullins testified to at Clementhis’ subsequent trial, because the jury did not hear it and it would not affect the reasonable doubt analysis. That testimony will be discussed later under the issue of a new trial.

Mullins’ different versions of the number of shots fired and where the bullets entered do not create a reasonable doubt concerning defendant’s participation in the murder. Defendant claims that Dr. Blum, the pathologist who conducted the autopsy, found no evidence that the victim was shot in the body. However, Dr. Blum also testified that the body was so decomposed that bullet holes were undiscoverable. Mullins consistently placed defendant at the scene of the murder with his gun drawn and aimed at the victim. Even if defendant had not fired the gun, his participation in the crime allowed the jury to find him guilty of first-degree murder as it was instructed on the accountability or accomplice theory.

Further, Mullins’ conflicting versions of how the victim’s body was disposed do not create a reasonable doubt concerning the method and participants in the crime. First, Mullins stated that the victim’s body was wrapped in a blanket and driven to Cook Road in Ricky’s trunk. Mullins later testified that the victim was placed in the passenger seat of Ricky’s car and driven out to Cook Road. In both versions, defendant participated, and the victim’s body was left in a cornfield on Cook Road. The record does not reflect that the police informed Mullins where the victim’s body was discovered prior to her statements. Her knowledge of the area where the victim’s body was found and the accuracy of her directions to the area demonstrate Mullins’ grasp of the facts surrounding the victim’s murder.

Defendant also argues that the corroborating evidence in the case was weak. We would agree that, without Mullins’ testimony, the case against defendant would not be solid. However, the corroborating evidence does help to bolster Mullins’ testimony, creating a stronger case against defendant.

The jury heard Louis Leavy’s statement to the police in which he stated that he saw an argument between the victim, Clementhis, Ricky and defendant; he heard gunshots and heard someone say that the victim had been shot. Leavy’s statement was admissible as substantive evidence pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 because the following criteria were met: (1) the prior statement was inconsistent with Leavy’s trial testimony; (2) Leavy was subject to cross-examination; (3) the statement described an event of which Leavy had personal knowledge; and (4) Leavy acknowledged under oath that he had made the statement. Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1; People v. Posedel (1991), 214 Ill. App. 3d 170, 176.

Similarly, Stacy Lovings gave a statement to the police in which she stated that she saw Clementhis, Ricky and defendant arguing with the victim; she heard shots, saw them drive away, and the next day saw blood in the parking lot. However, as we will discuss later, Lovings was improperly impeached with the above statement by the State. Thus, we will ignore her testimony in assessing whether reasonable doubt exists.

In addition to Mullins, Roshell Woods testified that he heard three or four people arguing outside the Champion Park apartments that evening, followed by gunshots. He saw two cars he believed were Cadillacs leave the area. Human blood was found in Ricky’s car. Also, glass was found in Ricky’s car that had the same characteristics as glass found near the victim’s body. Taking all this evidence together and viewing it in the light most favorable to the prosecution, we hold that defendant was found guilty of first-degree murder beyond a reasonable doubt.

Defendant’s reliance on People v. Pellegrino (1964), 30 Ill. 2d 331, is misplaced. There, as the State points out, one eyewitness was stunned from a beating and had changed her testimony, and the other eyewitness was suffering from the effects of an extended period of drunkenness. (Pellegrino, 30 Ill. 2d at 334-35.) Here, although Mullins testified inconsistently concerning portions of the evening, she did not have a physical impairment which would have affected her abilities to observe.

IMPEACHMENT

At issue is whether Stacy Lovings was improperly impeached under Supreme Court Rule 238 (134 Ill. 2d R. 238), thus depriving defendant of a fair trial. Defendant contends that Lovings was called to the witness stand solely so she could be impeached with her prior statement to the police. Defendant claims that the State’s case was not damaged by Lovings’ initial trial testimony, so the State could not proceed to impeach her. Defendant also claims that the error was compounded when Lovings’ out-of-court statement was admitted as substantive evidence.

The State contends that Supreme Court Rule 238 (134 Ill. 2d R. 238) applies to witnesses who are hostile, uncooperative or unwilling. The State claims that Lovings was both uncooperative and unwilling, so she could be examined as if under cross-examination. The State also contends that the prior statement was not admitted as substantive evidence. Finally, the State argues that defendant failed to preserve this issue for review.

We will first address the issue of waiver. To preserve an issue for review, the defendant must object at trial and include the objection in a post-trial motion. (Burrows, 148 Ill. 2d at 229.) However, under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), an issue may be reviewed as plain error if the evidence in the case is closely balanced or the error is so fundamental and of such magnitude that it denied the accused a fair trial. People v. Herrett (1990), 137 Ill. 2d 195, 209-10.

We find that defendant failed to preserve this issue for review. Defendant did not object to the impeachment of Lovings at trial, although he did include this issue in his post-trial motion. However, we will overlook the waiver and analyze the issue under plain error because we find the evidence in the case to be closely balanced.

Supreme Court Rule 238(a) states that parties may attack the credibility of their own witnesses. (134 Ill. 2d R. 238(a).) However, a witness cannot be impeached by a prior inconsistent statement unless her testimony has damaged, rather than failed to support, the impeaching party’s position. People v. Weaver (1982), 92 Ill. 2d 545, 563; People v. Spence (1989), 188 Ill. App. 3d 761, 765.

We agree with defendant that Lovings was improperly impeached. Lovings’ testimony did not damage the State’s case because Lovings provided no in-court testimony to impeach. At trial, Lovings was asked whether she knew defendant, Clementhis or Ricky, and whether she recalled when Simmons disappeared. Then the following colloquy took place:

“Q. Do you remember talking to Agent Mark Fritz of the Department of Criminal Investigation on September 28th, 1989?
A. I am not sure.
* * *
Q. Mark Fritz, blond-haired fellow, Department of Criminal Investigation, a police officer, do you remember talking to him about Billy Joe the victim?
A. I am not sure. I talk to a lot of officers.
Q. Okay. Do you remember talking to an officer about the disappearance of Billy Joe Simmons?
A. Yes, somebody came out to my house and I was questioned.
* * *
Q. That was around September 28th, 1989?
A. I am not sure.
Q. Okay. Do you remember telling Agent Mark Fritz that you were with a fellow by the name of McDory the night Billy Joe Simmons was last seen?
A. No.
Q. Do you remember telling Agent Fritz that you saw Clementhis Lambert, Ricky Lambert, Timothy Chatmon and Billie Simmons arguing that night?
A. No.
Q. Do you remember telling Agent Fritz that you heard gunshots coming from those individuals and observed Clementhis Lambert, Ricky Lambert and Timothy Chatmon depart in Clementhis Lambert [sic] Cadillac Seville and Ricky’s Cadillac Sedan Deville?
A. No.
Q. Do you remember telling him the next morning you noticed a trail of blood spots leading from a location where those individuals were arguing to the parking lot in Chestnut Court?
A. No.”

Lovings was never asked to testify about what happened the evening of August 6, 1989, but was only asked if she recalled making a statement to the police. As such, Lovings could not be impeached. Although we believe that an inconsistent statement in the literal sense is not required before a witness may be impeached (see People v. Amato (1984), 128 Ill. App. 3d 985, 987), the witness must testify concerning his or her knowledge, or lack of it, about the incident in question before impeachment is allowed.

Having determined that an error occurred, we must decide whether reversal is required. An error is harmless where there is sufficient competent evidence establishing defendant’s guilt beyond a reasonable doubt, and defendant cannot show that the error was the basis for the jury’s verdict. (Spence, 188 Ill. App. 3d at 766.) The defendant has the burden to demonstrate prejudice and to establish the reasonable probability that the error was a material factor in the conviction. Spence, 188 Ill. App. 3d at 766.

In this case, there was sufficient independent evidence of the argument and shooting among defendant, Clementhis, Ricky and the victim at the Champion Park apartments. Mullins testified in detail about the incident. Louis Leavy’s statement to the police also provided corroborating evidence of the argument and shooting. Also, Roshell Woods testified that he heard the argument and the gunfire and saw two Cadillacs drive away from the area. Thus, Lovings’ prior inconsistent statement was cumulative and, therefore, harmless.

Further, we disagree with defendant’s contention that the State relied substantively on Lovings’ prior statement. Lovings’ prior statement was not admitted into evidence pursuant to section 115 — 10.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 115— 10.1). The State’s reference to Lovings’ testimony and prior statement during closing argument compounded the impeachment error committed by the State, but was not an attempt to argue the substance of her prior inconsistent statement. Thus, defendant’s reliance on People v. Yarbrough (1988), 166 Ill. App. 3d 825, is misplaced because there the prosecutor moved to admit a witness’ prior statement and grand jury testimony as substantive evidence.

EVIDENCE DEPOSITION

At issue is whether the trial court erred in excluding portions of Dr. MacLean’s evidence deposition taken during Mullins’ competency hearing. At the competency hearing, Dr. Donald MacLean testified that, in 1986, he had treated Lori Mullins, also known as Lori Haley, Susan Johnson, Susan Smith, Susan Anderson, Susan Greer and Kathy Green. At that time, Mullins was recovering from a gunshot wound to her head. MacLean stated that her injury affected her insight, judgment and intellectual functions. MacLean recalled reading a report where Mullins’ mother thought Mullins was a pathological liar. MacLean believed that Mullins’ injury made her suggestible.

On cross-examination, MacLean stated that he found Mullins’ intelligence quotient (IQ) to be 69, which placed her in the mildly retarded range. MacLean believed that her condition was stable, and he expected no significant improvement.

MacLean also found that Mullins had a personality disorder which manifested itself in psychopathic-like traits. MacLean found evidence that Mullins heavily used drugs. Mullins was more likely than the average person to misinterpret facts. However, MacLean stated that Mullins was able to communicate and appreciate the difference between the truth and a lie. MacLean acknowledged that he had not examined Mullins since September 1986.

Following the hearing, Mullins was found competent to testify. MacLean stated at the competency hearing that he would be unable to testify at defendant’s trial. The court ordered that, pursuant to Supreme Court Rule 414 (134 Ill. 2d R. 414), MacLean’s testimony would be treated as an evidence deposition.

Among the motions in limine presented before trial was the State’s motion to exclude the evidence deposition of MacLean. The trial court made the following ruling:

“Defendant has a right to have the testimony of Dr. McLean [sic] heard by the trier of fact regarding the mental capacity of the witness and the condition of her comprehension at the time that he examined her in 1986. The doctor, however, in his deposition may not express any or quote from any statement by any other person purporting to have diagnosed the witness as a pathological liar or to the fact that the Defendant contradicted her use of controlled substances or any opinions by that doctor as to the present condition of the witness.”

However, defendant did not present any portion of MacLean’s evidence deposition at trial.

Defendant contends that the edited version of Dr. MacLean’s testimony left Mullins’ psychological condition incomplete and “critically handicapped” the jury in exercising its duty to weigh Mullins’ credibility. Defendant argues that he was denied effective examination of a witness’ mental history and condition.

The State contends that defendant has waived this issue for failing to present any of Dr. MacLean’s testimony at trial and failing to include this issue in his post-trial motion. Absent waiver, the State argues that the portion edited from Dr. MacLean’s testimony was speculative analysis that was not testified to based on a reasonable degree of medical certainty.

While defendant included this issue in his post-trial motion by arguing that the trial court erred in granting the motion in limine pertaining to MacLean’s testimony, we find that defendant waived the issue by failing to use Dr. MacLean’s testimony during the trial. The situation is analogous to a defendant failing to testify after his motion in limine to exclude a prior conviction for impeachment purposes is denied. Courts reason that the possible harm flowing from the ruling on the motion in limine is “wholly speculative.” (See Luce v. United States (1984), 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460; People v. Helton (1990), 195 Ill. App. 3d 410, 419; People v. Rush-Bey (1987), 152 Ill. App. 3d 17, 21-22.) Similarly, we would be speculating about the harm flowing from the exclusion of portions of Dr. MacLean’s testimony where none of his testimony was presented at trial. Thus, we deem this issue waived.

Absent waiver, we find that defendant was not harmed by the trial court’s exclusion of parts of Dr. MacLean’s testimony. Motions in limine are encouraged in criminal cases to exclude extraneous matters. (People v. Watkins (1991), 220 Ill. App. 3d 201, 211.) A motion in limine is used in an attempt to protect the moving party from the prejudicial impact of inadmissible evidence being asked and objected to in the presence of the jury. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549; Cunningham v. Millers General Insurance Co. (1992), 227 Ill. App. 3d 201, 205.) A reviewing court will not reverse the trial court’s ruling on a motion in limine absent an abuse of discretion. People v. Poole (1991), 222 Ill. App. 3d 689, 701.

Before trial, the judge ruled that Dr. MacLean’s testimony would be allowed. However, he excluded “any statement by any other person purporting to have diagnosed [Mullins] as a pathological liar,” references that Mullins denied using drugs, and any opinion by Dr. Mac-Lean concerning Mullins’ present condition. We agree with the State that the reference to Mullins being a pathological liar was not the opinion of Dr. MacLean, but of others. Also, Dr. MacLean had not seen Mullins since 1986, so his opinion about her present condition would be speculative.

Moreover, the remainder of Dr. MacLean’s testimony would have demonstrated Mullins’ limited mental capacity. MacLean testified that she had intellectual dysfunction resulting from a gunshot wound to the head; she had a personality disorder; she had an IQ of 69, putting her in the mildly retarded range; and she was more likely than the average person to misinterpret facts. Given the remaining viability of Dr. MacLean’s testimony, we hold that the trial court did not abuse its discretion in excluding portions of Dr. MacLean’s testimony.

NEW TRIAL

Defendant’s fifth contention is that the trial court erred when it refused to rule on his motion for a new trial and, alternatively, failed to grant the motion. Defendant argues that Mullins’ testimony in Clementhis’ trial that defendant did not shoot the victim was newly discovered evidence that was so significant that it would probably change the result on retrial. Defendant also argues that the affidavit of Latanya Latin is evidence that her boyfriend, Jessie Leach, killed the victim.

The State contends that Mullins’ testimony at Clementhis’ trial does not negate the fact that defendant was an accomplice in the victim’s murder. The State argues that Mullins remained steadfast that defendant was at the scene assisting the Lambert brothers and had pulled out a gun and reached over the victim with the weapon. The State concludes that Mullins’ subsequent testimony does not require that defendant receive a new trial.

A defendant is entitled to a new trial based on newly discovered evidence if: (1) the evidence is of such a conclusive character that it will probably change the result upon retrial; (2) the evidence is material and not cumulative; and (3) the evidence was discovered after the trial and was not discoverable before trial through the exercise of due diligence. (People v. Molstad (1984), 101 Ill. 2d 128, 134; People v. DeCesare (1989), 190 Ill. App. 3d 934, 943.) A motion for a new trial is not favored and will be subject to the closest scrutiny. (DeCesare, 190 Ill. App. 3d at 943.) The trial court’s decision to deny a motion for new trial will not be disturbed absent an abuse of discretion. People v. Miller (1980), 79 Ill. 2d 454, 464.

Initially, we disagree with defendant’s contention that the trial court failed to rule on his motion. In denying the motion, Judge Robert Coplan, who heard the motion after Judge John Sype’s retirement, stated in part:

“I have read everything that has been presented. I believe I have read all of the record, which is pertinent to what I believe counsel for both sides would agree is the central issue in the Motion to Reconsider, and that’s the testimony of Lori Mullins and her competennce [sic] as a witness or lack thereof.
* * *
The Motion for a New Trial was directed to the trial judge, who presided over the trial and entered judgment on the verdict, and that judge participated in all of the trial proceedings and pretrial proceedings and had the opportunity to observe the demeanor of the witness as did the jury, and I don’t have the advantage of having done any of that. So I have to determine in my judgment, based upon only the written record whether or not there is a basis to overturn Judge Sype’s motion, which denied a new trial.
In my opinion that would require me to function as an Appellate Court in this matter. I think that is not appropriate.
Based on the entire record in the case, I at this time have to deny the Motion to Reconsider and I do so.”

Judge Coplan clearly ruled on the motion. His acknowledgement that he was at a disadvantage because he did not hear the case was not a failure to rule on the motion.

We also hold that the trial court did not abuse its discretion in denying the motion. Mullins’ testimony at Clementhis’ trial was consistent in that defendant was at the scene of the murder and had his gun drawn. She testified that she did not hear or see a shot fired:

“Q. What happened to Billy Joe the victim after the second shot was fired?
A. He dropped to the ground.
Q. Tell us what happened?
A. Timothy Chatmon pulled from under his shirt a gun and Billy Joe Simmons was lying down and Timothy Chatmon reached over him with his gun but I didn’t hear or see a shot fired then.
* * *
Q. You lied to these people 15 minutes ago when you said you didn’t see Timothy Chatmon with a gun.
A. No.
Q. Well, you saw it or you didn’t see it?
A. He did have a gun.
Q. But you didn’t see him shoot it; is that right?
A. No, I didn’t.”

Further, Mullins’ testimony at Clementhis’ trial was not conclusive that she did not see defendant fire a shot. After the above testimony, she testified as follows:

“Q. Were you lying to the Grand Jury again?
A. I seen [sic] him pull out a gun and fire a shot in the direction but no.”

Viewing Mullins’ testimony at Clementhis’ trial as a whole, we find that it is not of such a conclusive character that it would probably change the result on retrial. Moreover, even if Mullins did not see defendant fire a shot at the victim, defendant’s participation in the victim’s murder was equivalent to that of an accomplice. As such, defendant could be found guilty of first-degree murder without firing a shot. See Ill. Rev. Stat. 1989, ch. 38, pars. 5 — 2(a), 5 — 3.

The case primarily relied upon by defendant, Molstad (101 Ill. 2d 128), is distinguishable. There, the newly discovered evidence consisted of affidavits from the five codefendants, which stated that the defendant was not present at the time of the crime. (Molstad, 101 Ill. 2d at 132.) Here, the newly discovered evidence is not as significant. As we previously stated, even if Mullins’ testimony at Clementhis’ trial is considered, defendant would still be found guilty of murder under an accountability theory.

Finally, the affidavit of Latanya Latin also does not rise to the level of conclusive evidence. Although her affidavit hints at Jessie Leach’s apparent intent to kill the victim and his belief that the victim was dead, there is no testimony placing Leach at the scene of the murder or demonstrating his participation in the murder. Without more, the affidavit does not mandate that we order a new trial.

EXCESSIVE SENTENCE

The final issue on review is whether defendant’s sentence of 35 years’ imprisonment is excessive. Defendant argues that his sentence is disparate to that of Ricky, who received a 40-year term. Defendant claims that Ricky had a more extensive criminal record, Ricky’s participation in the victim’s murder was greater, and Ricky had less rehabilitative potential.

The imposition of a sentence is a matter within the trial court’s discretion, and its decision will not be reversed absent an abuse of discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 250.) The trial court’s decision regarding sentencing is given great deference and weight. (People v. James (1987), 118 Ill. 2d 214, 228.) The trial court has abused its discretion in imposing a sentence when the judgment is manifestly unjust or palpably erroneous. People v. Anderson (1986), 112 Ill. 2d 39, 46.

We hold that defendant’s 35-year sentence was neither disparate nor excessive and the trial court did not abuse its discretion in imposing the sentence. Defendant received a shorter sentence than Ricky, in part, because of his less serious criminal record. However, based on past criminal convictions alone, defendant did not deserve a significantly shorter sentence because he had been convicted previously of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2), unlawful use of weapons (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1), and a violation of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 701 et seq.).

Further, defendant’s rehabilitative potential was acknowledged by the trial court. The trial court discussed the violent nature of the offense and the fact that defendant’s violent conduct dated back to his 1976 arrest for armed robbery. The trial court stated that the defendant was not “devoid of rehabilitation.” We believe the sentence reflected a thoughtful consideration of his potential to rehabilitate. Moreover, rehabilitative potential is not entitled to greater weight than the seriousness of the offense. See People v. Smith (1991), 214 Ill. App. 3d 327, 341.

Finally, defendant’s argument that Ricky’s participation in the victim’s murder was greater is unpersuasive. Although the evidence hints that Ricky may have had a stronger motive to kill the victim, defendant was at the scene of the crime, fired a shot at the victim, and helped in disposing of the victim’s body. Defendant’s participation in the actual killing of the victim was nearly identical to Ricky’s participation.

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

Affirmed.

DUNN, J., concurs.

JUSTICE McLAREN,

dissenting:

I must respectfully dissent. I authored People v. Lambert (2d Dist. May 19, 1992), No. 2—90—0363 (unpublished order under Supreme Court Rule 23), which was a Supreme Court Rule 23 dispositional order which reversed the judgment and remanded the cause on other grounds. Frederick Lambert was one of three defendants charged with Mr. Simmons’ homicide. Mr. Chatmon, defendant herein, and Clementhis Lambert were the two other defendants charged. I do not cite to the Lambert disposition as precedent but rather to show that I remain consistent in my judgment as to the weight attributed to Lori Mullins’ testimony. I wrote therein:

“It would be unjust to convict defendant based upon Mullins’ statements alone. However, other evidence was provided by the State which would, if believed, be sufficient to both corroborate certain aspects of Mullins’ testimony and support a conviction. Most notably, we refer to the statements Louis Leavy gave to the police. Leavy’s statements tend to incriminate defendant.” Lambert, slip R. 23, at 6.

In the above-cited Lambert case, Stacy Lovings’ testimony was presented to the jury, and the jury was properly instructed to use the prior statements made by Lovings only for purposes of impeachment. In the present case, her prior inconsistent statements were improperly submitted as substantive evidence.

I must disagree with the majority that the defendant has not shown reversible error. I reasonably believe the jury could have found Mr. Chatmon not guilty if Stacy Lovings’ testimony had been properly presented to the jury. I, therefore, would determine that reversible error was committed and remand the cause for a new trial.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. GREGORY DEAN LIEDTKE, Defendant-Appellee (George H. Ryan, Secretary of State, Appellant).
    Third District
    No. 3—91—0906
    Opinion filed October 19, 1992.
    Roland W. Burris, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

On October 30, 1991, the circuit court of Rock Island County issued an order directing the Secretary of State (Secretary) to issue the defendant, Gregory Dean Liedtke, a judicial driving permit (JDP). The Secretary now appeals, alleging that this order was erroneously entered.

No appellee’s brief has been filed in response. However, since the record is simple and the issue is clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On August 4, 1991, the defendant was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11— 501). He took a breathalyzer test, and the results showed a blood-alcohol concentration of 0.13. Accordingly, he received a statutory summary suspension effective from September 19, 1991, until December 19, 1991. (See Ill. Rev. Stat. 1991, ch. 951/2, pars. 11 — 501.1, 6— 208.1.) On September 6, 1991, the defendant filed a petition seeking a JDR That same day, the trial court granted the petition for the period from September 19, 1991, to December 19, 1991, and entered an order directing the Secretary to issue the JDP to the defendant.

The defendant’s driving abstract was filed with the trial court. It shows that the defendant had been arrested on September 21, 1990, and April 17, 1991, for speeding. He had also been arrested on August 17, 1990, for improper lane usage. As a result of committing these three moving violations within a 12-month period, the Secretary exercised its discretionary authority and suspended the defendant’s driver’s license from September 7, 1991, until December 19, 1991. See Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 206(a)(2).

The Secretary subsequently returned the JDP order to the trial court -with a letter explaining that the defendant was not eligible for a JDP because he also had a discretionary suspension pursuant to section 6 — 206(a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 206(a)(2)). The Secretary informed the trial court that the defendant would have to apply to the Secretary for a restricted driving permit rather than a JDP. The Secretary requested that the trial court reassess the issuance of the JDP order in light of this information. However, the Secretary also stated that if the trial court wished to again order the issuance of a JDP, the Secretary would issue it and make the “appropriate entries to our official records.”

Pursuant to the Secretary’s request, the trial court reconsidered the matter and reaffirmed its earlier order. The Secretary now appeals.

Initially, we note that this case may appear moot. However, this issue has arisen before this court in several recent cases. We held the issue to be moot in People v. Bogaert (3d Dist. 1992), No. 3—91—0765 (unpublished order under Supreme Court Rule 23), People v. Burton (3d Dist. 1992), No. 3—92—0110 (unpublished order under Supreme Court Rule 23), and People v. Krueger (3d Dist. 1992), No. 3—92—0064 (unpublished order under Supreme Court Rule 23). Therefore, to avoid further confusion and because this issue has recurred several times, we will consider this case as an exception to the mootness doctrine. See People v. Meece (1987), 162 Ill. App. 3d 658, 515 N.E.2d 1321.

A JDP is only effective in situations involving statutory summary suspensions. Therefore, if a driver’s underlying privileges are lost for another reason, the trial court cannot issue a judicial driving permit. People v. Boyd (1991), 211 Ill. App. 3d 99, 570 N.E.2d 8; People v. Dobrinick (1991), 215 Ill. App. 3d 144, 574 N.E.2d 842; see also Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 206.1(a)(4)(iii).

Here, from September 19, 1991, to December 19, 1991, the defendant was subject to both a statutory summary suspension under section 11 — 501.1 and a discretionary suspension under section 6— 206(a)(2) of the Code. It is therefore clear that because of the additional discretionary suspension, the trial court did not have the authority to order the Secretary to issue a JDP to the defendant while both suspensions were in effect.

However, we note that much of the confusion in this case stems from the letter the Secretary sent to the trial court. In the letter, the Secretary indicated why it believed the order issuing the JDP was improper. However, it then concluded with a paragraph asking the trial court to reconsider its order and stated that if the court again officially ordered the issuance of the JDP, the Secretary would issue the permit. The Secretary’s letter suggested to the trial court that it could still order the issuance of the JDP. It should be clear from this opinion that this portion of the Secretary’s letter was in error. We find under these facts that the trial court was without authority to issue the defendant a JDP while the discretionary suspension was in effect.

Accordingly, we reverse the order of the circuit court of Rock Island County awarding the defendant a JDP from September 19, 1991, to December 19,1991.

Reversed.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF SANDRA KAY BALLEGEER, n/k/a Sandra Kay Dey, Petitioner-Appellant, and DAVID G. BALLEGEER, Respondent-Appellee.
    Third District
    No. 3-92-0002
    Opinion filed October 21, 1992.

      Stephen A. Berger, of Wehr, Berger, Lane & Stevens, of Davenport, Iowa, for appellant.
    John R. Lewarne, of Rock Island, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Sandra Kay Dey appeals from an order of the circuit court of Henry County denying her petition to remove her minor son, Joshua, from Iowa to Colorado. The circuit court denied the petition for removal, finding that the best interests of the child would be better served if he lived in an area closer to his father, David G. Ballegeer, and his extended family. We reverse the circuit court’s decision.

The record shows that the parties’ marriage was dissolved on July 8, 1986. Joshua was two years old at that time, and the parties agreed that Sandra would have sole custody and control of him. David was granted visitation on every Wednesday night, on alternating weekends and holidays, and for two weeks in the summer.

On February 17, 1987, Sandra filed a petition seeking permission to move with Joshua to Davenport, Iowa. The trial court, noting that the parties agreed that she could move, granted her petition. It also noted that jurisdiction would remain with the courts of Illinois.

On August 30, 1991, Sandra filed a petition seeking to remove Joshua to Colorado. David objected and filed a petition seeking modification of custody. The court then held a consolidated hearing on both petitions.

The evidence from the hearing showed that prior to her petition, Sandra was employed as the warehouse manager for Aspen Distributing in Bettendorf, Iowa. She lived with her new husband, Steven Dey, his 15-year-old son, and their 3-year-old - daughter. Early in 1991, Sandra learned that Aspen Distributing was shutting down its Iowa operations. At that time she searched the area for other comparable employment; however, she was unable to find any. Following the plant’s closing on July 15, 1991, Sandra was offered a position with the company’s corporate headquarters in Denver, Colorado.

After careful consideration of the factors involved, Sandra decided to accept the offer because it involved moving to a larger metropolitan area which would provide greater cultural opportunities. In addition, it provided her with a substantial salary increase and improved her chances for advancement within the company. She conceded that she would be living a great distance from other family members. However, she was willing to allow David liberal visitation rights.

Because of the short time given for accepting the position and the need to enroll Joshua in a school, Sandra moved to Colorado prior to the completion of the proceedings on the motion to remove Joshua from the State. Sandra testified that Joshua had received good grades in his new school and had adjusted well to the move. The new neighborhood had a number of children Joshua’s age, and he had made several friends.

David testified that he wanted Joshua to remain in Illinois and live with him. He stated that he lived on a farm and operated a trucking and excavating business. He noted that he had also remarried and his wife, Robin, was very attached to Joshua. He also stated that since his divorce he has never missed a weekend visit with Joshua and has missed only two Wednesday visitations. When Joshua visited, the two of them would do the farm chores together, go to sales, and go boating.

David also testified that his parents, as well as Sandra’s parents, live near him. He stated that Joshua is close to both sets of his grandparents and would be able to visit them frequently if Joshua was allowed to live with him. He also noted that Joshua has aunts, uncles, and cousins his own age who also live in the area. Finally, he pointed out that both sides of the families get together for birthday and holiday celebrations which Joshua would miss out on if he lived in Colorado.

Other evidence showed that seven-year-old Joshua was interviewed by the trial judge in chambers. The judge found him to be an intelligent and sharp child who expressed a preference to live with his father so he could play on the farm and help his dad do chores. Finally, the record shows that the guardian ad litem recommended that Joshua be allowed to live "with David because Joshua would lose contact with extended family members if he was allowed to move to Colorado.

Based on this evidence, the trial judge found that both parties were decent and proper parents. He also found that Sandra’s move was appropriate and not designed to frustrate David’s visitation rights. In fact, he noted that he would have made the same decision Sandra had. However, the judge found that it was in Joshua’s best interest to remain in Illinois because of his connection to his extended family. As such, he denied Sandra’s petition and granted David’s petition for change of custody.

On appeal, we initially find that the trial court improperly addressed the two petitions. We note that the petitions involved are governed by different sections of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.) and involve different standards of proof and evidence.

Here, Sandra filed a petition to remove, which is governed by section 609 of the Act. Under that section, the burden is on the petitioner to show that removal of the child is in the child’s best interest. The factors used to determine the best interest of the child are set forth in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

In Eckert, the court stated that a trial court should consider the proposed move in terms of the likelihood the move will enhance the general quality of life for the child and the custodial parent. In addition, it should consider the custodial parent’s motives in seeking removal and the motives of the noncustodial parent in resisting the move. Furthermore, since it is in a child’s best interest to have a healthy and close relationship with both parents as well as other family members, the court should consider whether a reasonable visitation schedule could be reached if the move were allowed. In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

In response, David filed a petition for change of custody. Such a petition is governed by section 610(b) of the Act, which provides in relevant part:

“The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment *** that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child. *** The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).)

David’s petition was predicated upon Sandra’s move to Colorado.

The court allowed both petitions to be consolidated into one hearing. Problems in such consolidated hearings have arisen in the past. (See, e.g., In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325.) A judge is required to hear two different types of evidence and must be careful not to allow evidence proper for one petition to impact upon the decision as to the other petition.

In the instant case, the trial court issued one order discussing its findings of fact and its decision denying Sandra’s petition to remove and allowing David’s petition for change in physical custody. We believe that the trial court was in error. The trial court should have ruled on Sandra’s petition first. Had the court denied Sandra’s petition, the basis for David’s petition would have been eliminated. If the petition had been granted, however, David would then have been required to prove, by clear and convincing evidence, that some change other than the move to Colorado had occurred which required Joshua to be removed from Sandra’s physical custody.

As the record shows, the sole basis for the change in physical custody was Sandra’s move to Colorado. For the reasons set forth above, we find this to be error and, as such, reverse the trial court’s decision awarding David physical custody of Joshua.

We now turn to Sandra’s contention that the trial court’s decision denying her petition was against the manifest weight of the evidence. We agree.

Applying the factors set forth in Eckert, we note that the first factor to consider is the likelihood that the proposed move will enhance the general quality of life for the child and the parent having physical custody. As far as Joshua is concerned, we cannot say that the general quality of his life was directly enhanced by the move to Colorado.

However, the move to Colorado significantly enhanced the general quality of life for Sandra, and, therefore, indirectly benefited Joshua’s quality of life. The move provided Sandra with a significant salary increase and gave her an opportunity to advance in her career field and within the company she has been employed with for over five years. In addition, the move was to a larger city, thereby providing her with better cultural and recreational opportunities.

As to the second and third Eckert factors, there were no allegations that the motives of either Sandra or David in seeking or resisting removal were improper. Accordingly, these factors do not weigh against either party. See In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780.

The fourth factor concerns the visitation rights of the parent lacking physical custody. The fifth factor requires inquiry into whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

The record showed that there have not been any problems in the past regarding visitation. Joshua has enjoyed a close and loving relationship with David, David’s new wife, and David’s extended family. It is also apparent that Joshua has enjoyed a good and loving relationship with Sandra, his primary caregiver since birth, and with Sandra’s new husband and their extended family.

Sandra is willing to allow liberal visitation, including extended summer and Christmas visitations. In addition, further opportunities for visitation would exist at times when Sandra returns to Henry County to visit with her family. We are of the opinion that, as in In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325, the type of visitation proposed, absent any significant problems in the past with visitation, militates in favor of removal.

Applying the facts of the instant case to the factors outlined in Eckert, it is apparent that the trial court’s decision denying Sandra’s petition was against the manifest weight of the evidence. Accordingly, we reverse the trial court’s decision denying Sandra’s petition to remove. We also note that our decision renders moot Sandra’s remaining argument concerning her visitation rights.

Accordingly, the decision of the circuit court of Henry County is reversed and the cause remanded for consideration of visitation and transportation arrangements between David and Sandra.

Reversed and remanded.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE HAASE

text:
    LARA HOSSELTON, Guardian of the Estate of Edward Niggeman, a Disabled Person, Plaintiff-Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND et al., Defendants (Ken Wiser Insurance Agency, Inc., Defendant-Appellee).
    Third District
    No. 3—91—0946
    Opinion filed October 27, 1992.
    Rehearing denied December 4, 1992.

      Edward G. Vogt, of Kankakee, for appellant.
    Douglas C. Crone and Michael R. Stiff, both of Tribler & Orpett, P.C., of Chicago, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Lara Hosselton, acting as guardian of the estate of Edward Niggeman, brought a negligence action against the defendant, Ken Wiser Insurance Agency, Inc. In count II of the complaint, the plaintiff claimed the defendant was negligent in failing to ascertain the value of the estate before issuing a surety bond. The court granted the defendant’s motion to dismiss this count. The plaintiff appeals.

The record shows that Lois Hebert was the original guardian of the estate. As required in the Probate Act of 1975, she presented the defendant with an application for a surety bond. (Ill. Rev. Stat. 1991, ch. 1101/2, par. 12 — 2.) In the application, the size of the estate was never made known to the defendant. The guardian requested only a $10,000 bond. Acting in accordance with her wishes, the defendant executed a bond in the amount of $10,000.

Thereafter, based on an inventory showing the estate to be worth $305,000, the probate court entered an order requiring the guardian and her attorney to post a bond in the amount of $610,000. Hebert never complied with the order. According to the complaint, Hebert subsequently stole $259,097.01, which she claims is now spent.

The plaintiff argues that the defendant insurance agency has a duty to ascertain the value of an estate before issuing a surety bond. We disagree.

An appellate court reviewing a trial court’s order granting a motion to dismiss must determine whether the allegations of the complaint, when interpreted in the light most favorable to the nonmoving party, were sufficient to set forth a cause of action upon which relief could be granted. Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 405 N.E.2d 411.

Contrary to the plaintiff’s assertions, it is not the duty of an insurance producer to set the amount of a surety bond. The amount of a bond is determined by the probate court pursuant to the Probate Act of 1975. Ill. Rev. Stat. 1991, ch. 1101/2, par. 12 — 5.

Further, as the plaintiff acknowledges, there is no case law supporting the allegation that a producer is required to ascertain the adequacy of the amount of insurance. The producer does have a duty to use reasonable care to faithfully negotiate and procure an insurance policy according to the wishes and requirements of his clients. (Shults v. Griffin-Rahn Insurance Agency, Inc. (1990), 193 Ill. App. 3d 453, 550 N.E.2d 232.) By the plaintiff’s allegations, this is exactly what the defendant did: it procured a policy in the amount requested by the original guardian.

Based on the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN RAUE, Defendant-Appellant.
    Third District
    No. 3—91—0461
    Opinion filed October 15, 1992.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, John Raue, was charged with the offenses of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) and concealment of homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.1). The defendant pleaded guilty to the charge of concealment of homicidal death and received an extended-term sentence of 10 years’ imprisonment. The cause went to a jury trial on the murder charge, following which the defendant was found guilty of first degree murder and sentenced to a prison term of 60 years. The sentences were to run consecutively. The defendant appeals, raising the following issues: (1) whether the trial court erred by failing to respond adequately to the jury’s question concerning whether the defendant could be found guilty of first degree murder if some of the jurors believed he was guilty of second degree murder; (2) whether the trial court properly sentenced the defendant to 60 years’ imprisonment for first degree murder; and (3) whether the cause should be remanded because the trial court failed to admonish the defendant pursuant to Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)).

For the reasons that follow, we affirm the defendant’s conviction and sentence for first degree murder, but remand with directions to allow the defendant to be properly admonished pursuant to Rule 605(b) and to file a post-plea motion.

The evidence adduced at trial establishes that on the morning of July 2, 1990, the body of the defendant’s wife, Sonya Rene Raue, was found in the garbage in front of the defendant’s house in Lockport, Illinois. Two garbagemen, Rick Gates and Doug Taxis, removed four black garbage bags from in front of defendant’s house on the morning in question. After throwing the bags into the truck, Taxis turned on the blade in the back of the truck. When the blade came down on the garbage, a leg came out of one of the bags and fell into the hopper. Upon determining that it was a human leg, the two men called their boss and asked him to contact the police.

The police searched the truck at the Lockport city maintenance garage and found the rest of the victim’s body parts in separate garbage bags. Inside one bag was a torso that was wrapped in a sheet and secured with white freezer tape. Inside another bag was a human head wrapped in clear plastic. The two arms and the right leg were in another bag; the limbs had been folded at the joints and tightly taped. The defendant’s fingerprints were found on the bags.

Dr. Larry Blum testified that he performed an autopsy on the body of Sonya Raue on July 3, 1990. Dr. Blum’s opinion was that the victim died of asphyxia due to ligature strangulation. Blum found two contusions on the back of the victim’s head and ligature abrasions around her neck.

The defendant testified that he had been experiencing marital problems with his wife for the past couple of years. During this period, the victim began drinking heavily and seeing other men. The couple had decided to get a divorce in May of 1990, but then changed their minds and agreed to try a reconciliation.

On the evening of June 30, 1990, the defendant and his wife were watching television in the living room. Sonya decided to go out, and this caused an argument between them. Sonya went out, and the defendant fell asleep with their son, Jeremy, when he put him to bed. The defendant woke up when he heard Sonya return. When the defendant asked where she had been, she replied that it was none of his business. The defendant then noticed Sonya’s panties inside her purse. He yanked the purse off her shoulder, breaking the strap, and accused her of cheating on him again. At this point, Sonya slapped the defendant across the face. The defendant responded by shoving her against the wall. Sonya then kicked the defendant in the groin. Furious, the defendant jumped on top of Sonya and threw her to the ground. All the defendant remembered after this was being on top of Sonya and her being dead. He at first considered tying the body up in a blanket and disposing of it in a field. He then changed his mind and decided to dismember her and dispose of her body in the garbage.

During the defendant’s trial on the murder charges, the jury sent a question to the judge which read as follows:

“If we have all agreed to first degree murder and some of us feel there is a preponderance of evidence that a mitigating factor is present so that he is guilty of a lesser offense of second degree murder instead of first degree murder, the question is: If we cannot unanimously agree that there is a preponderance of evidence that a mitigating factor is present, is the final verdict first degree?”

After consulting with both attorneys, the judge sent back a response which read:

“It is the burden of the defendant to prove the existence of mitigating factors by a preponderance of the evidence, and if that burden has not been met, the verdict is one of first degree murder. If that burden has been met, the verdict is one of second degree murder. Whatever verdict you reach must be unanimous.”

The defendant now claims that this response by the trial judge was in error. We initially note that the defendant has waived this argument. If a party fails to object at trial and to raise the issue in its post-trial motion, the party effectively waives the issue for appellate review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The defendant failed to object to the response when it was offered and also failed to list it as error in his post-trial motion. A defendant who agrees with the judge’s answer to a jury’s question cannot later complain that the judge abused his discretion. (People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174.) The defendant claims that the issue was not waived because he presented his claim of error to the trial judge when he initially stated that the answer to the jury’s question should be “no.” This argument ignores the fact that the attorneys and the judge discussed at length how to answer the question and came up with the above response. When the judge finally proposed the above response, he asked both attorneys if it was satisfactory; they both agreed that it was. It was at this time that defense counsel should have objected if he thought the response was improper.

.The defendant also wants us to address this issue as plain error pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). We do not consider the judge’s response to the jury’s question to be plain error. A circuit court has a duty to instruct the jury where clarification is requested, the instructions are incomplete, or when the jury is manifestly confused. (People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313.) There are certain circumstances when a circuit court has a duty to answer a jury’s questions even if the jury received proper instructions. People v. Flynn (1988), 172 Ill. App. 3d 318, 526 N.E.2d 579.

However, under appropriate circumstances a circuit court may exercise its discretion to refrain from answering a jury’s inquiries. (Gathings, 99 Ill. App. 3d 1135, 425 N.E.2d 1313.) A circuit court may decline to answer a jury’s question if the jury instructions are readily understandable and sufficient to explain the applicable law or if further instructions would serve no useful purpose. (Reid, 136 Ill. 2d 27, 554 N.E.2d 174.) In the instant case, the trial judge found that the instructions were explicit and he did not know how to make the matter any clearer in the jurors’ minds. He chose not to answer the matter with a “yes” or “no” because he believed that would have the effect of directing a verdict. Because the judge found that further instructions would not be helpful, his answer was proper. The jurors returned a unanimous verdict of guilty of first degree murder and, when polled individually, each juror stated that was his or her verdict. We do not believe that plain error occurred.

The defendant next argues that his sentence of 60 years’ imprisonment for first degree murder was an abuse of discretion because -the judge failed to properly consider the evidence in mitigation. Sixty years is the maximum term of the basic sentence for first degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(a).) Sentencing is a matter of judicial discretion, and a sentence is not to be altered on review unless that discretion is abused. (People v. Duncan (1990), 196 Ill. App. 3d 343, 553 N.E.2d 774.) A trial judge is not required to enumerate each factor he considered in arriving at the sentence, nor is he required to set a particular value to any of those factors. (Duncan, 196 Ill. App. 3d 343, 553 N.E.2d 774.) Where mitigating evidence is before the court, it is presumed that the judge considered the evidence, absent some indication to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.) The judge in this case stated that he considered all the evidence before the court and also the factors in mitigation. Nothing in the record indicates that the judge failed to properly consider the mitigating factors. Considering the unique viciousness of this crime, we cannot say that a maximum term sentence was an abuse of discretion. We affirm the defendant’s first degree murder conviction and sentence of 60 years.

The defendant’s final argument is that this case should be remanded to the trial court so that he may be properly admonished pursuant to Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)). That rule provides for the advice to be given the defendant upon a plea of guilty. The defendant pled guilty to the concealment of homicidal death charge but was not given the Rule 605(b) warnings. The defendant wishes to attack his plea and sentence on this charge because the trial judge failed to warn him of the possibility of consecutive sentences. The judge is required to make such a warning pursuant to Supreme Court Rule 402(a)(2) (134 Ill. 2d R. 402(a)(2)). The defendant also wishes to attack his sentence because he was improperly sentenced to an extended-term sentence of 10 years for the concealment of homicidal death charge. An extended-term sentence may only be imposed for offenses within the most serious class of offense of which the accused is convicted. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Because first degree murder is a more serious class felony than concealment of homicidal death, an extended-term sentence for the concealment charge was improper.

The State argues that we lack jurisdiction over this part of the appeal because the defendant did not file a motion to reconsider his sentence as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). However, a defendant who has not been personally advised pursuant to Rule 605(b) of the procedures necessary to perfect his appellate rights after judgment is entered on his plea cannot be penalized for failing to follow the proper procedure to preserve those rights. (People v. Patrick (1989), 188 Ill. App. 3d 542, 544 N.E.2d 1042.) The Patrick court noted that Rules 605(b) and 604(d) were meant to mesh together. Therefore, we vacate the defendant’s sentence of 10 years on the charge of concealment of homicidal death and remand the cause to the trial court so that the defendant may be properly admonished pursuant to Rule 605(b) and be given 30 days thereafter in which to file a post-plea motion.

Affirmed in part; vacated in part and remanded.

SLATER and GORMAN, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
      In re ESTATE OF WILBUR P. SPEAKER, Deceased (Janet D. Vaughn et al., Petitioners-Appellants, v. Adeline Speaker et al., Co-Exr’s, Respondents-Appellees).
    Third District
    No. 3—91—0330
    Opinion filed October 22, 1992.
    Rehearing denied December 1, 1992.
    Randall K. Reese, of Reese & Reese, of Rockford (William E. Gottfred, of counsel), for appellants.
    Bozeman, Neighbour, Patton & Noe, of Moline (Robert J. Noe, of counsel), for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Wilbur P. Speaker died on January 16, 1985, and his estate was opened on February 13, 1985. On November 24, 1986, petitioners Janet D. Vaughn and Richard L. Vaughn filed a claim against the estate based on personal injuries they allegedly suffered as a result of an automobile accident with the deceased, which occurred on Decernber 2, 1983. According to the claim, the deceased was insured by a policy of insurance which was not inventoried. On motion of the respondent co-executors, the Vaughns’ claim was dismissed on the ground of time-barring. Petitioners appeal. We affirm.

Initially, we note this is the second appeal involving these parties. The facts underlying the first appeal are set forth in decisions of this court (156 Ill. App. 3d 962, 509 N.E.2d 1084) and our supreme court (126 Ill. 2d 150, 533 N.E.2d 885), and need not be repeated here in detail. At issue in the first appeal was whether petitioners’ tort complaint against the co-executors was subject to dismissal on the ground of time-barring. We ruled that sufficient facts were there alleged to raise a triable issue of whether the co-executors are estopped from asserting a statute of limitations defense, and remanded the cause for further proceedings. (156 Ill. App. 3d at 968, 509 N.E.2d at 1088.) Our supreme court affirmed. (126 Ill. 2d at 767, 533 N.E.2d at 892.) The United States Supreme Court denied the Vaughns’ petition for writ of certiorari. Vaughan v. Speaker (1989), 492 U.S. 907, 106 L. Ed. 2d 568, 109 S. Ct. 3218.

The instant action in probate was filed, as aforesaid, in November 1986 while the appeal was pending on the tort case. After finally exhausting the appeals process, rather than proceeding with the tort cause of action, petitioners elected to pursue their claim in probate. On July 2, 1990, the circuit court consolidated the two causes. As aforesaid, the co-executors thereafter moved to dismiss the claim against the estate on the ground that the claim was filed more than six months after issuance of letters testamentary. The circuit court granted the co-executors’ motion on April 5, 1991, and petitioners brought this appeal.

Respondents initially posit that this court lacks jurisdiction to hear the appeal because it is interlocutory by reason of the pendency of the tort cause of action, and the circuit court did not make the required finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Petitioners argue that the two causes involve separate issues and that they retain separate docket numbers in the circuit court notwithstanding the court’s sua sponte order of consolidation. In the interest of judicial economy, we choose to decide this case on its merits.

The arguments put by petitioners are: (1) that petitioners’ due process rights were violated by the estate’s failure to notify petitioners of decedent’s death and the applicable claim period; and (2) that the estate’s failure to inventory decedent’s policy of automobile insurance extends the limitation period for petitioners’ claim to January 16,1988 (Ill. Rev. Stat. 1989, ch. 1101/2, par. 18 — 12(b)).

In Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, the Supreme Court considered the constitutional sufficiency of notice to creditors by publication under Oklahoma’s two-month nonclaim statute. The Court initially found that sufficient government action accompanied the statute there at issue to implicate the due process clause and that creditors have protected property interests in their claims against a debtor’s estate. (485 U.S. at 487-88, 99 L. Ed. 2d at 577, 108 S. Ct. at 1346.) Accordingly, the Court ruled, publication alone may not satisfy due process requirements as to known creditors of an estate. As to such creditors, actual notice of the running of the claim period must be shown.

In Illinois, where a six-month nonclaim period is provided by statute, applying the Tulsa rule has not always resulted in a ruling favorable to the claimant. Most recently, in In re Estate of Doyle (1992), 229 Ill. App. 3d 995, 594 N.E.2d 774, we found that a known creditor who had actual knowledge of facts sufficient to file a claim within a week of the decedent’s death was not deprived of his right to due process by the estate administrators’ failure to provide actual notice of the applicable claim period.

The case before us, likewise, does not fall within the rule of Tulsa. Here, the statutory claim period extended from February 13, 1985, until August 13, 1985. Petitioners’ tort suit against decedent was not filed until November 27, 1985, more than three months after the claim period had closed. That action was declared a nullity in the prior appeal. Petitioners’ second tort action naming the co-executors was not filed until December 23, 1985. And, as stated in our supreme court’s opinion on review of the tort action, “there is no indication or assertion that either co-executor knew prior to the running of the [two-year] statute of limitations that a complaint had been filed.” (126 Ill. 2d at 160.) Since there is no allegation that the respondents knew of petitioners’ interest in the estate prior to December 2, 1985, the date the limitations period expired on the tort action, it cannot be said that petitioners were “known creditors of the estate” entitled to notice pursuant to Tulsa.

Similarly, we find no relief for petitioners under section 18— 12 of the Probate Act of 1975. At the time the probate estate was opened, section 18 — 12 of the Probate Act of 1975 read as follows:

“a) All claims against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, not filed with the representative or the court within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent’s estate ***; but this Section does not bar actions to establish liability of the decedent to the extent the estate is protected by liability insurance.
b) *** all claims barrable under this Section are, in any event, barred unless letters of office are issued upon the estate of the decedent within 3 years after decedent’s death.” Ill. Rev. Stat. 1985, ch. 1101/2, par. 18 — 12.

Petitioners argue that this section extends the claim period for three years where the asset against which they have filed (decedent’s liability insurance policy) is not inventoried in the estate. Since letters of office were issued within a month of decedent’s death, the three-year provision in subparagraph (b) has no application.

Moreover, respondents correctly point out that none of the cases cited by petitioners support their theory that an otherwise barred tort action may be revived pursuant to this section of the Probate Act after the expiration of the six-month claim period. In this case, unlike those cited by petitioners, both the tort limitations period and the probate claim period had expired before suit was brought against the co-executors. Thus, the fact that the insurance policy was not inventoried as a potential asset of the estate does not improve petitioners’ position. Unlike the tort suit, which remains on the circuit court’s docket for further consideration of petitioners’ estoppel defense, the probate suit may not be saved by application of equitable principles. (In re Estate of Worrell (1981), 100 Ill. App. 3d 566, 570, 427 N.E.2d 196, 199, citing In re Estate of Ito (1977), 50 Ill. App. 3d 817, 820, 365 N.E.2d 1309, 1311.) Accordingly, we affirm the judgment of the circuit court of Whiteside County dismissing petitioners’ claim.

Affirmed.

GORMAN and HAASE, JJ., concur.