author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT HARDEMAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 87—2414
    Opinion filed September 19, 1990.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Robert Hardeman, had a bench trial and was found guilty on two counts of aggravated criminal sexual assault, and criminal sexual assault, armed robbery, armed violence and residential burglary. The trial court merged the convictions of the two aggravated criminal sexual assault counts and the criminal sexual assault count, but it entered judgments on all three counts. Defendant was sentenced to 20 years for aggravated criminal sexual assault, 10 years for armed robbery and 7 years for residential burglary, with all the terms to run concurrently. Defendant contends that (1) his conviction for aggravated criminal sexual assault must be reduced to attempt; (2) his due process right not to be tried while unfit and his right to testify in his own defense were violated; (3) the court erred in denying defense counsel’s post-trial motion to withdraw; (4) his 20-year sentence should be reduced or he should be resentenced; and (5) the trial court erred in entering judgments on all three sexual assault counts for the same physical act.

We affirm the judgment of 20 years on the aggravated criminal sexual assault conviction, and affirm the judgments of 10 years on the armed robbery conviction and 7 years on the residential burglary conviction. We vacate the judgment on the one count for aggravated criminal sexual assault that was merged into the count for aggravated criminal sexual assault that is affirmed, and we vacate the judgment on the count for criminal sexual assault.

The incident occurred on March 7, 1985. The victim lived in an apartment with her mother and two sisters. The victim was a 19-year-old student at Chicago Vocational High School. She left school at about 2:30 p.m., and boarded a bus to go home. After getting off the bus, she walked three blocks to her apartment building. The defendant, age 34, who was not known to the victim, approached her from behind and pushed her inside the vestibule of the building while holding a knife to her neck. Defendant demanded money, and she gave him $2 from her school bag. Defendant asked her if her parents were home, and when she told him that no one was home, he forced her into the vestibule by putting a knife at her throat. When the victim began crying and screaming, she was seen by her eight-year-old sister, who ran to a neighbor’s apartment for help. Neither defendant nor the victim was aware that they had been seen, and defendant forced the victim into the apartment where she lived. Meanwhile, the neighbor phoned the police, and the victim’s eight-year-old sister phoned her mother, who was at work.

While in the apartment, defendant forced the victim into her mother’s bedroom and he took jewelry from a dresser and threw it onto the bed. He then told her to take her clothes off and lie on the bed. After she was lying nude on the bed, defendant took his penis out of his pants and inserted it into her vagina, while he held the knife at her neck. During the time that defendant had his penis in the victim’s vagina, her mother entered the apartment and began screaming. Defendant then jumped up and went behind the bedroom door and closed it. The mother tried to push the door open but was not successful. The victim began yelling to her mother that defendant had a knife in his hand. After about two minutes, defendant jumped from behind the door and told the mother: “I’m going to kill you, kill you, bitch. I’m going to kill you.” The mother yelled back that defendant could go but she wanted to take care of her daughter. Defendant then opened the door and ran past the mother. The mother entered the bedroom and called the police after her daughter got dressed.

A neighbor chased defendant as he was attempting to flee. Defendant stabbed the neighbor in the leg as they were going down the stairs. The victim’s older sister was in the vestibule and witnessed the struggle. She ran upstairs to her apartment, grabbed a small steak knife and ran to help the neighbor. Defendant told the victim’s sister to stay back or he would kill her. However, she stabbed defendant in the rump. Within 30 to 40 seconds, the police arrived and arrested defendant. Defendant was taken to a hospital for medical treatment. At the hospital, the police recovered a watch from defendant that belonged to the victim. The police also recovered other jewelry and several knives from defendant.

Later, on the same day, a police officer had a conversation with the victim at the police station. In that conversation she did not state that defendant put his penis into her vagina. She told the police officer that defendant pushed her on the bed; put his finger into her vagina, and then told her to put his penis into her vagina, at which time she heard her mother calling and defendant got up.

On appeal defendant contends that his conviction for aggravated criminal sexual assault must be reduced to the crime of attempt because the victim’s testimony that sexual intercourse occurred is impossible to believe considering the time frame involved, and considering the fact that during the police investigation she did not tell the police officer that the defendant put his penis in her vagina. Defendant also relies on the fact that no semen was discovered and the fact that there was no medical evidence of physical injury to the victim’s vaginal area. We believe defendant’s contention is without merit.

A person commits aggravated criminal sexual assault if the person commits criminal sexual assault and during the commission of the offense the person displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim to reasonably believe it to be a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1).) Criminal sexual assault is an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1).) Sexual penetration is defined as follows: “ ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) Thus, theoretically, if the defendant in the present case only placed his finger in the victim’s vagina that act could be used to support an aggravated sexual assault conviction. However, since the State only charged that the defendant “committed an act of sexual penetration upon (the victim), to wit: sexual intercourse,” defendant’s conviction for aggravated criminal sexual assault in this case must be based on evidence that there was contact, however slight, between the defendant’s penis and the victim’s vagina. See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 2(f) (defining sexual penetration).

Bearing in mind that defendant’s conviction for aggravated sexual assault must be based on evidence that there was contact between defendant’s penis and the victim’s vagina, we address defendant’s argument that this kind of contact could not have occurred within the time frame involved in this case. The testimony at trial demonstrates that defendant was in the victim’s apartment almost one-half hour, and that the entire sequence of events with the defendant lasted perhaps 15 minutes longer. The victim testified that after defendant forced her into her mother’s bedroom, he rummaged through some jewelry on top of and inside a bedroom dresser. Holding a knife to the victim, defendant then told her to take her clothes off and lie on the bed. After the victim was lying nude on the bed, defendant unzipped his pants. He took his penis out and inserted it inside the victim’s vagina before he jumped up when he heard the victim’s mother yelling as she entered the apartment. The victim testified that she and the defendant were in the bedroom about two or four minutes.

We believe it is clear that the defendant could have committed the acts described in the victim’s testimony within the stated time and the reasonable realm of miscalculation of time that one must allow when considering the type of event that was being described. We find defendant’s argument void of any merit.

Defendant also argues that the victim’s testimony is impossible to believe because when she was interviewed during the police investigation, she did not tell the police officer that defendant put his penis inside her vagina. Testimony may be clear and convincing, however, even though it is impeached or contradicted. To assay testimony that is impeached or contradicted, the witness’ testimony must be examined in its entirety.

Moreover, when reviewing the testimony of the victim of a sexual attack in its entirety, courts must recognize that a forced sexual encounter is an emotionally traumatizing event to a woman. Thus, the fact that a woman does not include certain facts in her statement to a police officer during the investigation of the occurrence does not mean that the victim’s trial testimony which includes the omitted facts is reduced to something less than credible or that it is not clear and convincing.

Here, when we view the victim’s testimony in its entirety, we conclude that under the circumstances of the occurrence to which the victim testified, her testimony that the defendant put his penis inside her vagina is credible, clear and convincing even though she had not stated that fact to the police officer during the police investigation. We therefore reject defendant’s argument.

Defendant also argues that the victim’s testimony that defendant put his penis inside her vagina is impossible to believe because there is no physical evidence, such as the presence of semen or physical injury to the victim’s vaginal area, to support that fact. However, the presence of semen is plainly not necessary to prove penetration (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f)), and medical evidence of physical injury is not necessary to prove that a woman was forced to have sexual intercourse. (People v. Leonhardt (1988), 173 Ill. App. 3d 314, 321-22, 527 N.E.2d 562, 567.) Defendant’s argument therefore has no merit.

In sum, we conclude that the victim’s testimony as to what occurred is believable, clear and convincing, and that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant next contends that he was suffering from a sickle cell anemia crisis in the middle of the trial, and that the trial court erred in not continuing the trial. Defendant argues that therefore the trial court violated both his due process right not to be tried while unfit and his fifth amendment right to testify in his own defense. We disagree.

Defendant was arrested on March 7, 1985. On May 30, 1985, he was examined by a psychiatrist and found mentally fit for trial and legally sane at the time of the alleged offense. On January 27, 1987, he was examined by another psychiatrist and found fit for trial, able to cooperate with counsel and legally sane at the time of the offense. His case was set for trial on April 20, 1987. On that day, defendant’s attorney informed the court that defendant had been suffering from acute psychiatric problems within the prior 30 to 45 days. An immediate psychiatric examination was requested to determine if defendant was fit for trial and if he was able to cooperate with counsel. On April 22, 1987, defendant was again examined by a psychiatrist and found “fit for trial” and able to cooperate with counsel. There is no indication that defendant ever informed the physician, or any of the former physicians, that he was suffering from sickle cell anemia or anything related to the disease.

The trial began on April 24, 1987. At the conclusion of the State’s case on a Friday, defendant made a motion for a continuance to Monday, April 27. On Monday, defendant’s attorney informed the court that defendant was not able to communicate with him. On April 30, a hearing was held and the court indicated that it had spoken to a psychiatrist at the Psychiatric Institute. A written report from a psychiatrist who had examined defendant on April 29, provides: “[Djefendant was uncooperative during the interview, and while, in my opinion, he would be able to understand the charges and proceedings against him, it is doubtful that he would be able to cooperate with counsel; though, in my opinion, he is malingering. To satisfy any doubts in this issue, I would recommend that he be considered unfit and referred to the Department of Mental Health for further evaluation.”

As a result, the court ordered another evaluation by the Department of Mental Health, and on May 21, defendant was examined by Dr. Thomas J. Tucker, a clinical psychologist with the State of Illinois. On June 8, Dr. Tucker testified as to his evaluation of defendant regarding his fitness to continue in the trial. It was Dr. Tucker’s opinion that defendant had a genuine personality disturbance but that defendant’s symptoms “would not preclude defendant as being found fit to stand trial in any conception of fitness,” and that those symptoms “would not stand in the way of defendant’s ability to testify or to work with his defense attorney.” Dr. Tucker stated: “I believe that he has the ability to cooperate but seems to me unwilling to do so.”

In an apparent effort to be certain of Dr. Tucker’s testimony, the court asked the following:

“THE COURT: If I understand your testimony in essence you said you feel he has the ability to cooperate with counsel.
DR. TUCKER: That’s correct.
THE COURT: But, he chooses not to?
DR. TUCKER: That’s correct, sir.”

The court then heard arguments of counsel regarding defendant’s fitness to stand trial, after which the court found defendant fit to stand trial. Defense counsel then requested a continuance to bring in witnesses, which was allowed to later that afternoon.

When the court reconvened in the afternoon, defense counsel informed the court that defendant felt physically unable to testify. He stated that defendant had a sickle cell crisis on Friday which required hospitalization at Cook County Hospital and that he was not released until Sunday afternoon. When asked if that was correct, defendant replied “Yes.” The court indicated that it was ready to proceed to trial and that whether the defendant wanted to testify would be up to the defendant. When asked if he wished to testify in the case, defendant replied “No.” Defendant’s case was then presented by way of stipulations which consisted of the medical reports describing the injuries received by defendant on the day of the occurrence.

On appeal, defendant cites medical literature describing sickle cell anemia and the graveness of the disease. However, there is nothing to demonstrate or suggest that there were special orders given to defendant by the treating physicians upon his release from the hospital regarding either a physical or mental inability to testify or stand trial. Nor is there anything to demonstrate or suggest that he was under any incapacitating medication that would create a physical or mental inability to testify or stand trial. It can be rightfully assumed that defendant was physically and mentally fit to testify and stand trial if he was discharged from the hospital without any suggestion that he was under some special medical order or incapacitating medication. Also, the court observed that “based on testimony of the psychologist, Dr. Tucker, that Mr. Hardeman is fit as far as his mental process to cooperate with counsel.”

Under the circumstances, we conclude that the record sufficiently establishes that defendant was fit for trial and there was no abuse of discretion by the trial court in the manner in which it proceeded with the trial, and that there is no merit to defendant’s contention that his due process or fifth amendment rights were violated.

Defendant next contends that this case must be remanded for new post-trial proceedings because the trial court erred in denying defense counsel’s post-trial motion to withdraw on the basis of a conflict of interest. We find no merit to this contention.

On the day set for post-trial motions and sentencing, defense counsel told the court that he had been served that morning with a civil lawsuit filed against him by the defendant in the present case. The civil suit alleged that defense counsel in the present case conspired with the court and the prosecution to deny the defendant his constitutional rights, and it charged attorney malpractice. Defense counsel told the court that the allegations and charges were untrue, libelous and defamatory. However, he moved to withdraw from the present case because of the civil suit, on the basis that a conflict of interest existed. The court denied the motion. In denying the motion the court stated: “I have read this complaint for attorney malpractice. I’m familiar with your (defense counsel) activity in the case. And in my opinion it’s a frivolous lawsuit.” The court also stated that defense counsel had conducted himself professionally and in a very highly competent manner.

Inherent in a trial judge’s authority to conduct and preside over a criminal trial is the discretion to conclude that a defendant’s conduct or pursuit of an otherwise legal right is frivolous and merely an attempt to frustrate the administration of justice. If the trial judge did not have such discretion, you would have an intolerable anomaly in that the defendant could whimsically control the progression of the proceedings over which the judge is presiding. The trial judge’s discretion in such situations, of course, is subject to review, but the trial judge must be assured that he is not hamstrung and that he may exercise the discretion.

Here, we believe that the trial judge had the discretion to find that for purposes of the present case the civil suit was frivolous and was utilized merely as an attempt to frustrate the administration of justice in his courtroom. The trial judge exercised that discretion in denying the motion to withdraw.

Upon review of the discretion exercised by the trial judge, based on the history of this case and the circumstances that existed at the time the motion to withdraw was presented, and the fact that the record clearly shows that for purposes of this case the trial judge made a reasonable assessment of the allegations in the civil suit, we believe that the trial judge did not abuse his discretion in denying the motion to withdraw. The trial judge acted properly and within his discretion in denying the motion.

Defendant next contends that his 20-year sentence for aggravated criminal sexual assault was improperly based on factors inherent in the offense and that the sentence should be,reduced or the case remanded for resentencing. We disagree.

Aggravated criminal sexual assault is a Class X felony, with a sentence of not less than six years and not more than 30 years. Defendant received a 20-year sentence, which is within the statutory bounds. Prior to sentencing, the State presented evidence in aggravation in the posture of a complaining witness in another criminal case that is pending against defendant. The witness testified that defendant forced his way into her apartment, armed with a revolver, and told her that he was going to rape, rob and kill her. She testified that defendant sexually assaulted her and took some of her personal property before fleeing. Defendant testified and contradicted the testimony of the complaining witness. Whereupon, the trial court stated that “there is sufficient contradiction in the testimony so that I’m not considering it with respect to aggravation.” In mitigation, the court considered the lack of any other criminal background.

In meting out defendant’s sentence, the court stated: “I do consider as a very serious aggravating factor the fact that he forcibly at knife point made this little girl with a speech disability go into her own home and then proceeded to have her disrobe and commit a crime of aggravated criminal sexual assault on her. And had not her sister come along there well might have been other more serious injuries involved.”

Defendant argues that the trial court’s statement with respect to aggravation demonstrates that the only aggravating factors that the trial court relied upon are inherent in the offense itself and that therefore the sentence is improper. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) We disagree with defendant’s premise because there are wide variances in the risk of harm to victims of sexual attacks, and the context of the trial court’s statement demonstrates that the trial court considered in aggravation the degree of the “threatened serious harm” to the victim, which is a proper factor to consider in aggravation. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3.2(1).) Moreover, in determining whether a sentence was improperly imposed, a reviewing court should not focus on a few words or statements of the trial court, but, rather, the determination of whether or not the sentence was improper must be made by considering the entire record as a whole. (People v. Fenderson (1987), 157 Ill. App. 3d 537, 549, 510 N.E.2d 479, 487.) After reviewing the entire record as a whole, we do not believe that the defendant’s sentence of 20 years for his conviction of aggravated criminal sexual assault was improper.

The remaining contention by defendant is not disputed. The trial court merged the convictions of the criminal sexual assault count (count I) and the two aggravated criminal sexual assault counts (counts II and IX), but it entered judgments on all three counts. The State agrees with defendant that the trial court erred in entering judgments on all three sexual assault counts for the same physical act. (People v. King (1977), 66 Ill. 2d 551, 562, 363 N.E.2d 838; People v. Wilson (1981), 93 Ill. App. 3d 395, 396, 417 N.E.2d 146.) The judgments on count I for criminal sexual assault and count IX for aggravated criminal sexual assault shall therefore be vacated.

Accordingly, the judgments on count II for aggravated criminal sexual assault, on count X for residential burglary, on count XIX for armed robbery, and on count XXV for armed violence are affirmed. The judgments on count I for criminal sexual assault and count IX for aggravated criminal sexual assault are vacated.

Affirmed in part; vacated in part.

CERDA, P.J., and FREEMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JARVIS BROOKS, Defendant-Appellant.
    First District (6th Division)
    Nos. 1 — 87—3489,1—88—0179 cons.
    Opinion filed August 24, 1990.
    Rehearing denied October 1, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Thomas J. Byrne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a bench trial the defendant, Jarvis Brooks, was found guilty of murder of Hershell Cornier and armed violence and sentenced to 25 years in prison. His first contention is that he was not proved guilty of murder beyond a reasonable doubt.

Robert Wilson testified that Hershell Cornier (Hershell) was his niece. Wilson had known the defendant for four or five years; he knew the defendant as Hershell’s boyfriend, and he and the defendant socialized together. The relationship between the defendant and Hershell ended approximately three months before September 1986; in that period Hershell developed a relationship with a new boyfriend named Tony. About four days before her death, Hershell and Tony moved to a second-floor apartment near the intersection of Adams Street and Damen Avenue in Chicago.

On September 17, 1987, Wilson and the defendant were playing basketball. Later, the defendant drove Wilson to a liquor store where Wilson bought some liquor and cigarettes. The defendant then drove to Hershell’s apartment, telling Wilson that he was going to pick up Jarvina, the daughter of the defendant and Hershell. They arrived at Hershell’s building between 6:30 and 7 p.m. The building had two floors with one apartment on each floor. The defendant and Wilson went to the building’s front door, which was locked, and the defendant knocked. Hershell looked out her second-story window and then came downstairs and opened the door. The defendant told her that he had come to get Jarvina; Hershell said, “Okay,” went back upstairs leaving the defendant and Wilson on the first floor, and then returned with Jarvina. When Hershell returned, the defendant asked if he could use her washroom, and she said, “No.” The defendant then asked if anyone else was in the apartment; she said, “No,” and said that Tony had gone to take care of some business. Wilson took Jarvina to the car while the defendant stayed and talked to Hershell for no more than five minutes. Wilson did not hear this conversation. At some point, the defendant and Hershell walked up the stairway.

Hershell then called to Wilson from the second-floor window, asking him to come and get the defendant. Wilson walked through the building’s front doorway, through a second doorway, and up the stairs to the second floor. The defendant was in the hallway in front of Hershell’s door, which was closed. The defendant was hollering, “Hershell, Hershell, I want to talk to you,” but Hershell did not answer. Wilson told the defendant that they should leave; the defendant walked downstairs and out onto the porch followed by Wilson, who closed and locked the front door behind him.

Wilson went to the car, telling the defendant, “Come on, let’s go.” The defendant left the car and went to the back of Hershell’s building, out of Wilson’s view. Between “one or two and a half minutes” later, Wilson, who was sitting in the car, heard a gunshot. Wilson told Jarvina to wait in the car and ran to the rear of the building. He went up the back stairs and saw that Hershell’s back door had been kicked in. The door normally was braced by a two-by-four in a metal bracket attached to the door.

Wilson entered the apartment and saw the defendant standing with a gun in his hand. Wilson asked the defendant what had happened, and the defendant said he and Hershell were struggling when the gun went off; he said that it was an accident and indicated that Hershell was in the front room. Wilson walked into the front room and saw Hershell lying on the floor; she had been shot in the chest and was lying on her back. Wilson checked to see if she was alive, but realized she was dead. He saw two lacerations on her inside lower lip. Wilson told the defendant to give him the gun, but the defendant jerked away from him and ran downstairs. Wilson followed him to his car. The defendant said he was going to call an ambulance and drove away.

Wilson left Hershell’s apartment and saw a police car in the area; he told the police what had happened. The police took Wilson back to the apartment and then rode around with him trying to find the defendant. They continued to drive around until they learned that the defendant was in custody.

Officer Lloyd Peterson testified that he was outside the front of the Eleventh District police station at approximately 8:15 p.m. on September 17. The defendant approached him and said, “I’m the one you are looking for. I just shot my old lady.” Peterson took the defendant inside the station where he turned the defendant over to Officers McCaster and Calhoun.

McCaster and Calhoun left the station with the defendant to look for the weapon he had used. Acting on the defendant’s instructions, they went to two garages on West Fifth Avenue, but did not find the gun on either roof where the defendant indicated that he had thrown it; these roofs were slanted. They then went to Marshall High School at 3250 West Adams. There, the defendant indicated first that he had thrown the gun onto a rooftop V-k stories high. After McCaster climbed onto the roof and did not find anything, the defendant indicated that perhaps the gun was on another roof at the school that was three stories high. McCaster climbed onto that roof and found a .38 caliber revolver which he identified at trial. The weapon contained four live rounds and one spent shell and was missing part of its handle. The defendant told the officers that he had thrown the gun on at least two sloped roofs but that the gun fell back down to the ground. The defendant identified the gun for the officers but did not know where the handle was.

Detective Ralph Vucco arrived at Hershell’s apartment around 7 p.m. The molding of the rear door had been pulled off and was lying on the floor as was a two-by-four that had been used as a brace; a metal bracket was attached to the molding.

By stipulation it was established that the bullet recovered from Hershell’s body had been fired by the gun recovered by the police and identified by the defendant. The stipulated autopsy report also showed that Hershell’s death was “related to the gun shot wound of the chest lacerating the internal jugular vein and brain.” The report also said that there were two cuts on Hershell’s lower lip.

The defendant testified that he was born in Cook County in 1965 and had 10 siblings. He graduated second in his class from Marshall High School, where he received a perfect attendance award. He worked as a food store clerk and, from February 1985 until his arrest, as a mail handler for the post office. The defendant and Hershell started dating in about 1979 or 1980, when he was 14 and she was 12 years old. In 1984 they had a child, Jarvina, and began living together in 1986. The defendant had never been arrested nor had any complaint ever been made against him for harming Hershell.

Three years before her death, he and Hershell had been separated for a month when he met and pleaded with her to get back together; at that meeting he cut his arm with a butcher knife, indicating that he would kill himself for her. The cut was not very deep, but it bled and the defendant said it left a scar. After this meeting they resumed their relationship, including going to church for Bible studies. In July 1986 they again broke up. He and Hershell twice met to discuss their relationship; during the second meeting he attempted to kill himself with a knife, but Hershell prevented him by grabbing the knife’s blade. (She was not hurt.) On a third occasion, in August 1986, they met again, and he tried to kill himself by cutting his throat with a broken beer bottle; Hershell and the defendant’s brother stopped him by grabbing his arm. (Again, she was not hurt.) The first week in September 1986 he met Hershell again in his mother’s house; he told her that he loved her very much and no longer wanted to live without her, but nothing else happened at this meeting. On another occasion, when Hershell was not present, he thought about killing himself with a knife, but his mother told him not to do it.

At 12 noon on the day of the shooting, the defendant went to Hershell’s apartment and said that he wanted to pick up his daughter later, between 5 and 5:30 p.m. He talked to Hershell outside her apartment; she did not let him inside. She had custody of the child after their separation but allowed the defendant to see the girl. He left and met Robert Wilson; they played basketball and drank with a group of about five friends, but the defendant did not become drunk. One friend asked if he could leave a weapon in the defendant’s car while they played; this was the gun introduced at trial. The defendant did not mention to his friends that he was distressed regarding Hershell or that he thought of killing himself.

At about 6 p.m. the defendant left the basketball game and drove with Wilson to Hershell’s apartment. When he arrived he had the gun in his waistband, and he and Wilson knocked on the front door. Wilson did not know that the defendant had the gun with him. Hershell opened the door but did not have the child with her; she went upstairs and got the child, whom Wilson took to the car; the defendant stayed for three to five minutes and talked to Hershell about their breakup. He wanted to kill himself at that time. He knew Hershell was living with someone else, but this had no effect on his state of mind. The conversation ended when Hershell said she could not talk then and went inside. He was angry when she would not talk to him. He stood in the hallway and cried, then left with Wilson, who had come inside to urge him to leave. Wilson followed him out of the building; the defendant, however, did not know that Wilson had locked the door.

The defendant walked to the back of the building. He kicked open the rear door, forcing his way into the apartment to speak with Hershell. It did not seem to take a great amount of force to kick open the door. He was angry when he kicked open the back door and entered the apartment. He had the gun with him to kill himself, not Hershell. After he entered the apartment he and Hershell did not have an argument but sat on a sofa in the front room. He denied telling the police that they had an argument at this point; he admitted that she was mad that he had destroyed her rear door. He managed to calm her down and convinced her to sit on the sofa.

They sat side by side on the sofa; he begged and pleaded with her to come back to him or he would kill himself then and there. He put the gun, which was in his right hand, to his head and cocked the hammer; he did not have his finger on the trigger. Hershell stood up and pleaded with him not to kill himself because she loved him and there was still hope, but she said they could not get back together at that time. While she was talking, she snatched the gun from his hand. The defendant stood up to recover the gun. She turned and fell to the floor and the gun went off. He could not recall whether her hand was on the trigger. He “definitely did not tell [the police] that the gun was in [his] hand [when it fired].” Hershell was lying on her side, and the defendant turned her over, saw her gagging and became very frightened. Her chest was bleeding a lot, but he did not give her any medical care. He kneeled over her body for about 20 seconds, then left to get help. He took the gun from the floor of the apartment.

He ran downstairs and told Wilson that Hershell accidentally had been shot and that Wilson should call an ambulance and the police. He denied that Wilson came up to the apartment, as Wilson had testified. The defendant was very frightened and, about two minutes after he left the apartment, he got into his car and drove down Adams Street. He did not intend to kill Hershell.

After unsuccessfully attempting to throw the gun on several sloped rooftops, he threw the gun on a roof at Marshall High School. At this time he knew that he “had to turn [himself] in because [he] did not want to make it look like [he] was guilty.” He drove to his father’s house, but no one was home. He drove to his mother’s house and told his brother what had happened and that he wanted to surrender but that he was frightened. His brother encouraged him to surrender and drove him to the police station.

At the police station, his brother told him not to say anything. They met a police officer outside the station and his brother had a conversation with the officer. The defendant denied telling Officer Peterson, “I shot my old lady.” The defendant went with Officer McCaster in a car to show the officer where the gun was thrown. He denied telling McCaster, “I shot my old lady” but did tell McCaster that Hershell was shot accidentally. They found the gun at Marshall High School. The defendant recalled being interviewed by two detectives at the police station who advised him of his rights. He did not recall what he told the detectives but acknowledged that it was possible that he told them he was angry when Hershell would not let him into her apartment. Although he denied ever hurting Hershell, he admitted that they had a few fights during which they would wrestle and he would unintentionally hurt her. He denied ever hitting her in the face at any time, including on the day she died.

The defendant’s father testified that he spent pleasant times with the defendant, Hershell and Jarvina. He observed that the defendant was emotionally upset by the breakup with Hershell.

The defendant’s mother testified that Hershell and her son treated each other well. She testified that on September 8, 1986, the defendant “picked up a catsup bottle and hit himself in the head and said he didn’t want to live if he could not be with [Hershell].” She observed the defendant during the period he and Hershell were apart and described him as “very moody” and “real upset.”

In rebuttal, Officer McCaster testified that when he first saw the defendant at the station the defendant said, “I’m the one you’re looking for. I shot my old lady.” Although the defendant told him that the gun went off accidentally, the defendant never said that the gun was in the victim’s hand.

Officer Vucco testified that he advised the defendant of his Miranda rights and that the defendant seemed calm and spoke in a normal tone. The defendant told him that the gun was in his hand while he and Hershell were struggling and when it went off. Vucco said that there was no sofa in the front room of Hershell’s apartment; he identified photographs of the crime scene; no sofa appeared in the photographs.

At the completion of the trial, the judge found the defendant not guilty of count I, which alleged that the defendant intended to kill or do great bodily harm to Hershell or that he performed acts knowing that the acts would cause death to another. He found the defendant guilty of count II, which alleged that the defendant committed acts which created a strong probability of death or great bodily harm to another.

The defendant now acknowledges that the Illinois Supreme Court has explicitly rejected the argument he advanced initially, that is, that the State must exclude every reasonable hypothesis of innocence before a defendant may be found guilty. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) The defendant, however, continues to maintain that, even under the reasonable doubt standard of Pintos, the evidence was insufficient to support the conviction. In addition, he argues that the trial court’s findings are logically inconsistent, if not also legally inconsistent, thus supporting his conclusion that the evidence did not prove him guilty beyond a reasonable doubt.

The defendant cites several cases to support the proposition that courts “have held evidence like the State’s evidence here insufficient to support a conviction”: People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651; People v. Garrett (1975), 62 Ill. 2d 151, 339 N.E.2d 753; People v. Calhoun (1972), 4 Ill. App. 3d 683, 281 N.E.2d 363; People v. LaGardo (1978), 59 Ill. App. 3d 780, 376 N.E.2d 62. To begin, all those cases applied the reasonable-hypothesis-of-innocence standard which the defendant now concedes is not the proper standard. More important, however, all of the cases may be factually distinguished from this case. In Lewellen the defendant’s self-defense theory was supported by bruises on the defendant and a psychiatrist’s testimony regarding the defendant’s paranoid delusion. In Calhoun the nature of the victim’s wound and the condition of the bullet supported the defense theory that the bullet ricocheted. Moreover, the Calhoun court concluded that the State failed to prove the requisite mental state for murder, reasoning that “[djefendant’s explanation *** would, if credible, completely negate the evidence of intent or wilful conduct which the State sought to present.” (Emphasis added.) (Calhoun, 4 Ill. App. 3d at 689-90.) In this case, the trial judge explicitly found the defendant’s testimony incredible.

In Garrett the court reversed a murder conviction because a suicide note in the victim’s handwriting was consistent with the defendant’s testimony that the victim killed herself. In LaGardo, the defendant was charged with attempted murder. The victim testified under a grant of immunity. The appellate court concluded that the trial court properly disregarded the victim’s testimony as completely incredible but, in doing so, the trial court limited itself to only circumstantial evidence which, the appellate court said, failed to exclude the reasonable hypothesis that the defendant shot the victim, “a self-confessed felon with violent propensities,” in self-defense. LaGardo, 59 Ill. App. 3d at 784.

In this case, the trial judge found the defendant’s version of the occurrence incredible. In our judgment the record amply supports that finding. The defendant’s testimony was contradicted by Wilson and Officers Peterson, McCaster and Vucco. Peterson and MeCaster both testified that the defendant had told them even before he was questioned, ‘T shot my old lady.” The defendant denied making those statements. Vucco testified that the defendant said that the gun was in his hand when it went off. The defendant denied making that statement. Vucco also refuted the defendant’s story that he and Hershell were sitting on a sofa just before the struggle began. Wilson established the virtual impossibility of the defendant’s version of the sequence of events. Wilson said that between 1 and 21k minutes elapsed from the time the defendant left him near the car and the shooting. It is inconceivable to us that the defendant could have left Wilson, kicked the door down, conversed with Hershell to the extent he described all in 21/2 minutes.

When a defendant’s “testimony allegedly constitutes the only evidence of what actually took place, the trier of fact is not obligated to accept all, or even any part, of his statements but may consider the reasonableness of the defense offered, assess its probabilities, if any, and reject that evidence which it finds contradictory, unlikely, or improbable in light of other facts before it.” (People v. Eliason (1983), 117 Ill. App. 3d 683, 695-96, 453 N.E.2d 908, 915.) “The trier of fact may disregard exculpatory accounts or other evidence that tends to support or be consistent with defendant’s innocence and rest its decision instead on the circumstantial evidence of guilt presented by the State.” (People v. Viano (1985), 139 Ill. App. 3d 560, 566, 487 N.E.2d 623, 628.) The circumstantial evidence shows the following: There were two lacerations to Hershell’s lower lip from which it could be inferred that the defendant had struck Hershell. At the time he went back to the apartment the defendant knew that Hershell was alone. He had pointedly asked her before whether she was alone. He was a jealous and angry individual armed with a gun, who kicked down a barricaded door and who, after the killing, in a display of consciousness of guilt, fled and hid the weapon. In our judgment, that circumstantial evidence supports a finding of guilty of murder beyond a reasonable doubt. Our holding makes it unnecessary to discuss the many cases cited by the defendant to support his contention that the evidence, at best, established involuntary manslaughter.

The defendant also argues that the trial judge’s findings are logically, if not legally, inconsistent and therefore require reversal. We do not agree. The precise argument advanced by the defendant was made and rejected in People v. Stalions (1986), 139 Ill. App. 3d 1033, 488 N.E.2d 297. Here, the trial judge found that the defendant committed knowing murder under section 9 — 1(a)(2) but not intentional murder under section 9 — 1(a)(1). (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2).) Those two sections require different mental states and thus the findings were not legally inconsistent. (See People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186.) Nor are they logically inconsistent. The judge’s findings do not require a conclusion that he both accepted and rejected the same theory of the case for the State or the same theory of the defense. The judge stated that he did not believe the defendant, thus rejecting the defense theory that the defendant was not holding the gun when it fired and accepting the State’s theory that the defendant broke into Hershell’s apartment with a gun, had his finger on the trigger and fired the gun.

The defendant next contends that he did not receive effective assistance of counsel. He alleges that his counsel ignored or overlooked the second count of the indictment, which alleged knowing performance of acts creating a strong probability of death or great bodily harm; that his counsel presented inconsistent defenses; and that he failed to present a “defense [sic]” of involuntary manslaughter.

The proper standard for attorney performance is that of reasonably effective assistance judged by an objective standard of reasonableness: reasonableness under prevailing professional norms. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Altánese (1984), 104 Ill. 2d 504, 473 N.E.2dl246.

The defendant’s counsel adequately framed the issue in the case as one of the defendant’s state of mind, whether Hershell was killed accidentally or whether the defendant killed her under either provision of section 9 — 1(a). In his opening statement the defendant’s attorney stated as follows:

“There is no issue [the defendant] was there. There is no issue that [Hershell] died. There is no issue that there is a gun. He turned himself in. He showed the police where the gun was. There is no intent. This is not a situation where he went there to kill her. This is an accidental homicide.” (Emphasis added.)

He pursued this theory of defense during trial when he stated to the judge, “The whole issue in this case is state of mind, or whether it was an accident.”

In his closing argument he continued to stress that the shooting was an accident and that the defendant was innocent of murder. He concluded his remarks as follows:

“I would suggest that the way the physical evidence came out is consistent with what the defendant testified to, and that this is an accidental homicide. At best it is a voluntary [sic], but it certainly isn’t a murder.”

In the post-trial motion the defense attorney said this:

“You heard all the evidence and you made your ruling; however, I think after much deliberation myself and going over the file and going over my notes that I still suggest to this Court that at best the State provefd] the defendant Jarvis Brooks guilty of involuntary manslaughter.” (Emphasis added.)

In our judgment the defense attorney did not overlook or ignore the second count of the indictment and he did not present inconsistent defenses. He pursued the competent trial strategy of seeking a complete acquittal on all charges based on the same defense of accident. Moreover, if the defense attorney is properly quoted as referring to voluntary manslaughter during the trial, we are convinced that he misspoke and that the trial judge was not misled. The trial judge, unlike a jury, was aware of the elements of voluntary and involuntary manslaughter. Voluntary manslaughter involves an intentional killing done under a sudden and intense passion resulting from serious provocation by the person killed or the intentional or knowing killing of another under an unreasonable belief that the use of force is justified. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.) Involuntary manslaughter involves an unintentional killing and reckless action. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3.) The defense throughout was that the killing was unintentional. Clearly, therefore, the court had to know that when the defense attorney talked about manslaughter he was referring to involuntary manslaughter. Consequently, we reject the defendant’s claim that he was not provided effective assistance of counsel.

The defendant last contends that the sentence imposed was excessive; he seeks a reduction of the sentence of 25 years’ imprisonment to the minimum term of 20 years’ imprisonment. He cites his age at the time of the offense (20 years old), his lack of any criminal history, his strong family background, his educational background, his history of regular employment, his active involvement in his church, his emotional distress caused by the breakup with the victim and his alcohol use.

Before passing sentence, the trial judge stated that he considered the factors in mitigation and aggravation under the sentencing statute. His sentencing determination may not be set aside absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We cannot say that the 25-year sentence imposed by the judge constituted an abuse of discretion.

For all these reasons, the judgment of conviction of murder, including the sentence, is affirmed.

The State concedes that the defendant’s conviction for armed violence should be vacated because the murder served as the predicate felony for the armed violence count {People v. Donaldson (1982), 91 111. 2d 164, 435 N.E.2d 477.) The defendant’s conviction of armed violence is vacated.

Judgment affirmed in part and vacated in part.

MeNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE SPITZ

text:
    MARCIA L. RAMOS et al., Plaintiffs-Appellants, v. RAM S. PANKAJ, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0999
    Opinion filed September 20, 1990.

      Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall .and David R. Sinn, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

The plaintiffs Marcia and Robert Ramos appeal from a judgment entered in favor of defendant Ram S. Pankaj, M.D., following a jury trial conducted in the circuit court of Livingston County. In this medical malpractice action, plaintiffs sought to recover damages resulting from the alleged failure of defendant to diagnose and properly treat a septic arthritic condition in Marcia’s left hip.

Several issues are raised by plaintiffs on appeal. The first issue to be considered is whether the trial court erred in allowing extrajudicial information to be received by the jury from which information the jurors could arguably infer that plaintiffs had settled with a former co-defendant, U.K. Sinha. The information about which plaintiffs complain is the posting of a trial calendar in the courthouse which included a reference to Sinha as a defendant. The case relied on by plaintiffs in support of this position is Gertz v. Bass (1965), 59 Ill. App. 2d 180, 208 N.E.2d 113.

In Gertz, the court decided it was prejudicial error for the jury to obtain a dictionary which was not in evidence and which defined terms differently than did the jury instructions. The Gertz opinion also points out that only errors which are prejudicial to the rights of the complaining party require reversal. In the case at bar, plaintiffs have not established prejudice- resulting from the posting of the court calendar.

It is pure speculation on the part of plaintiffs to conclude that if any of the jurors read the calendar or noticed the inclusion of Sinha as a defendant, the jury must have inferred plaintiffs settled with Sinha. The jury was instructed as follows:

“It is your duty to determine the facts, and to determine them from the evidence produced in open court. You are to apply the law to the facts and in this way decide the case. Neither sympathy nor prejudice should influence you. Your verdict must be based on evidence and not upon speculation, guess or conjecture.”

This court will not assume merely from the posting of a court calendar that the jurors flagrantly disregarded their duty.

Plaintiffs further argue that the posting of the court calendar was particularly prejudicial in light of the giving of defendant’s instruction No. 8, which stated:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiffs, it is not a defense that some third party who is not a party to the suit may also have been to blame.
Eowever, if you decide that the sole proximate cause of injury to the plaintiffs was the conduct of some person other than the defendant, then your verdict should be for the defendant.”

This instruction was given over plaintiffs’ objection and is based on Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1990) (IPI Civil 3d).

Plaintiffs’ contention is that the second paragraph of this instruction should not have been given. The notes on use section following the IPI instruction indicates the second paragraph should only be used when evidence exists tending to show that conduct of a third person was the sole proximate cause of the occurrence, and further indicates the entire instruction is not to be given where the third person was acting as an agent of one of the parties. IPI Civil 3d No. 12.04, Notes on Use, at 12 — 9.

The jury was instructed that when physicians act “in concert” to treat a patient, then each physician is liable for the negligence of the other. This instruction, and the instruction defining “in concert,” was submitted by plaintiff and is based on the decision in Reed v. Baseon (1988), 124 Ill. 2d 386, 530 N.E.2d 417. However, no instruction concerning agency was submitted by plaintiff. (See IPI Civil 3d Nos. 50.01 through 50.10.) Moreover, the fact that two doctors act “in concert” does not render one the agent of the other since one is not acting for or on behalf of the other. Had the agency theory applied, there would have been no need to develop the “in concert” theory of liability. In any event, had plaintiffs argued defendant’s instruction No. 8 should also not be given when doctors are acting “in concert” such an argument would be without merit. After all, a jury might reasonably find the doctors were not acting in concert and that one and not the other was solely responsible for the injury. (See Baseon, 124 Ill. 2d 386, 530 N.E.2d 417.) Therefore, the giving of the instruction, as in the case at bar, does not create an inconsistency, but instead merely apprises the jurors of the law relative to the parties’ respective theories of the case.

Nor does this court deem that the giving of defendant’s instruction No. 8 inappropriately draws attention to the fact plaintiffs may have settled the case with Sinha. As a result, plaintiffs were not denied a fair trial because of the posting of the court calendar, independent of or in combination with the giving of defendant’s instruction No. 8.

The next issue to consider is whether the jury was properly instructed on the issue of proximate cause. Plaintiffs complain the giving of defendant’s instruction No. 9 was improper. That instruction stated:

“If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiffs, it is not a defense that something else may also have been a cause of the injury.
However, if you decide that the sole proximate cause of injury to the plaintiffs was something other than the conduct of the defendant, then your verdict should be for the defendant.”

See IPI Civil 3d No. 12.05.

The purpose of jury instructions is to advise the jury of the correct principles of law to be applied to the evidence admitted at trial. While the trial court has considerable discretion in determining the form of the instruction to be given, the instructions given must be supported by some evidence in the record, they must correctly state the law, and they must not overemphasize any particular matter. (Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091.) Plaintiffs argue the evidence does not support the giving of this instruction since there is no evidence of an independent cause of the injury unrelated to the doctors’ actions as in Burge v. Morton (1981), 99 Ill. App. 3d 266, 425 N.E.2d 539.

William B. Fischer, an orthopedic surgeon called as a witness on behalf of the plaintiffs, testified that in his opinion, “as early as August 30th, 1984, there was a high probability that Marcia Ramos was going to need a hip replacement.” He also testified that “highly probable” meant there was an 80% or 90% chance it was going to happen. Pankaj testified he first saw the patient on August 30,1984.

Plaintiffs nevertheless argue there is no evidence the bacterial invader was unbeatable had a proper and timely diagnosis been made. However, the giving of the instruction is supported by (1) Fischer’s testimony and (2) the fact that on September 3, 1984, Sinha and Pankaj performed an exploratory procedure to discover the cause of pain in Marcia’s hip and thigh and found an area of infection in the area of the greater trochanter, with a pus pocket extending down the femur four or five inches. This area was cleaned, but the doctors did not proceed further to inspect the area around the top of a rod which had been inserted following a motorcycle accident that occurred 12 years previously. The reason the doctors did not proceed further is that the diagnostic procedures employed prior to the exploratory surgery did not indicate any problems around the top of the rod and the doctors did not want to risk creating any new problems. On September 21, 1984, a second exploratory surgery was performed after X rays taken the day before gave an indication of a septic hip. The procedure on September 21 was an arthrotomy and involved opening the - joint capsule to inspect. Fluids from the joint were tested at the lab and the lab reported finding no bacteria, but noted the presence of white blood cells. Thereafter, the patient was sent to St. Francis Hospital in Peoria, where Dr. Bernard Cahill removed the rod because of an infection he discovered at the top of the rod. He also noted that the infection had spread to the hip capsule. Cahill testified he expected the patient to develop arthritis because cartilage does not tolerate the enzymes of an infection.

Based on this evidence, a jury could reasonably find that the infection could well have involved the hip capsule even before the patient went to see defendant and that the failure to discover it in the first instance neither aggravated nor caused the damage to the hip capsule to any greater extent than already existed, such that Marcia would have required hip-replacement surgery even had Doctors Sinha and Pankaj discovered the infected area around the rod on September 3, 1984. Based on these facts, then, it was not error for the trial court to give an instruction premised on IPI Civil 3d No. 12.05.

The remaining issue to consider is whether the conduct of defendant’s counsel deprived plaintiffs of a fair trial. Plaintiffs complain of the following conduct: (1) defendant’s counsel cross-examined Marcia as to whether she made a claim against the driver of an automobile which struck the motorcycle on which she was riding in 1972, after which incident the rod was inserted in her hip; (2) defendant’s counsel, on three occasions, improperly attempted to impeach Marcia with her deposition testimony which was not inconsistent with her testimony at trial; (3) defendant’s counsel attempted to imply that Fischer misidentified “Naprocyn [sic]” as an antibiotic in his discovery deposition even though both parties were aware that the reference to Naprosyn in the deposition was a stenographer’s error, and that Fischer had corrected the deposition transcript before trial to refer to “Nafcillin”; (4) during closing argument, defense counsel advised the jury that plaintiffs had asked the court to give instructions concerning concerted action; and (5) defendant’s closing argument also includes the following references to defendant:

“This doctor knows he wasn’t wrong and if at times he seemed a little strident or at times if you thought that he was trying maybe a little too hard to get his point across to you, can you imagine what our grandfathers would have done if they had been hauled into court 100 years ago when they got off the boat and their German wasn’t too good and maybe their Swedish wasn’t, by golly, too good?
Wouldn’t it be a little scary for somebody in that circumstances who can’t dance around with the language to be in this game of, war of words? Wouldn’t that be a little frightening.?”

• 5 With regard to counsel’s reference to defendant’s mastery of the English language, plaintiffs argue it is merely an appeal to the passion and sympathy of the jury designed to prejudice plaintiffs. Not only have plaintiffs waived this issue for purposes of appeal by failing to object (Loitz, 177 Ill. App. 3d 1034, 532 N.E.2d 1091; Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091), but on the merits this court does not find anything improper about the reference. In Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383, the only case cited by plaintiffs in support of this contention, the court was concerned with digressions which cast aspersions on the honesty of the opposing side. Such is not the case here. Defendant’s argument was not designed to embarrass or belittle plaintiffs or their counsel.

With regard to the examination of Fischer, plaintiffs did not object, but on redirect examination by plaintiffs’ counsel, the matter was clarified. As to nearly all the other conduct of defendant’s counsel which plaintiffs argue deprived them of a fair trial, objections were sustained and the jury was instructed to disregard the question, the reference to the deposition, or the offending portion of counsel’s argument.

As this court noted in Loitz, where the defendant complained of having to object 71 times during trial:

“Where defendant has objected, the objection was sustained and a motion to strike granted, or such other relief granted on the defendant’s motion, then defendant really has nothing about which to complain. Wright v. Yellow Cab Co. (1983), 116 Ill. App. 3d 242, 451 N.E.2d 1313.

A party is not entitled to an absolutely error-free trial, as long as the trial, as a whole, was fair. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.) A trial judge is accorded wide latitude in conducting a trial. (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188.) Considering the length of the trial, the complexity of the issues, and the fact that defendant was allowed much of the relief it sought during the trial, it is hard to believe defendant could have had a fairer trial.” Loitz, 177 Ill. App. 3d at 1060, 532 N.E.2d at 1107.

Regarding the examination of Fischer, it is possible defendant’s trial counsel merely overlooked the correction to the deposition, and when the matter was later clarified, no prejudice to plaintiffs could have occurred. Similarly, when defendant’s counsel attempted to question Marcia about any demand she made against the driver of the automobile, the objection interrupted the question, no answer was given by the witness, and the jury was instructed to disregard the question. Plaintiffs did not move for a mistrial on the ground that the inference that the witness was “a professional witness” was so prejudicial that, in spite of sustaining the objection, plaintiffs could not have received a fair trial.

Nor does defendant’s counsel’s reference to the fact plaintiffs requested the judge instruct the jury concerning doctors acting in concert warrant a reversal. While the comment was unnecessary and certainly inappropriate, plaintiffs have failed to explain satisfactorily how they were prejudiced by the comment in view of the trial court sustaining the objection. Plaintiffs did not request that the references be stricken or that the jury be instructed to disregard the statement. Nor did plaintiffs request that a mistrial be declared. Furthermore, the judge instructed the jury as the plaintiffs requested. There is nothing in the record from which this court could find the jury chose to ignore the instructions of the court because they were offered by plaintiffs.

Finally, we consider the three unsuccessful attempts to impeach Marcia with her discovery deposition. There is nothing in the record which indicates counsel’s efforts were not good-faith attempts at impeachment. If defendant’s counsel believes there was a prior inconsistent statement, counsel may raise that issue and have a ruling in the event plaintiffs object. Plaintiffs complain that such attempts were “repeated.” While counsel cannot continue examining a witness in a manner or with regard to a subject matter to which an objection has already been sustained, plaintiffs have failed to establish that the trial court’s initial rulings should be interpreted as precluding subsequent attempts at impeachment regarding different subject matters.

Plaintiffs rely on the opinion in L.D. Brinkman & Co.-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221, and Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 510 N.E.2d 3. In L.D. Brinkman, the court decided error had occurred because counsel, in examining the witness, laid the foundation for impeachment by prior inconsistent statements, but failed to offer into evidence the prior inconsistent statements. Had such action on the part of defendant’s counsel occurred here, it too would be error. However, the allegedly impeaching statements were presented in open court and the judge ruled they were not impeaching, directing the jury to disregard them. In Green, counsel laid a foundation to impeach by establishing functions the plaintiff could not perform if injured as claimed, but counsel failed to prove plaintiff had performed such activities. Again, Green is distinguishable because the case at bar does not involve an incomplete impeachment where counsel has attacked a witness’ credibility but failed to follow up with proof. Here the attempt at impeachment was complete, but the attack on the witness’ credibility was unsuccessful because the prior statements were not inconsistent with the court testimony. Plaintiffs received a fair trial.

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

Affirmed.

LUND and GREEN, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    JOHN C. TAYLOR, Plaintiff-Appellee and Cross-Appellant, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4 — 89—0468
    Opinion filed July 12, 1990.
    Rehearing denied October 31,1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert Toews, Assistant Attorney General, of Chicago, of counsel), for appellant.
    John F. Bramfeld, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The State Universities Retirement System (SURS) appeals a circuit court order holding it is liable for attorney fees with respect to a recoupment of disability benefits which it obtained. The attorney who requested payment of the fees cross-appeals the portion of the same order which holds the circuit court lacks jurisdiction to order SUES to pay him the fees, and his only recourse for obtaining payment of the fees is an action in the Illinois Court of Claims.

Between April 1, 1983, and September 30, 1983, Jess Burwell received SUES disability benefits totalling $6,954.66. Subsequently, in proceedings before the Industrial Commission, Burwell obtained a judgment against the University of Illinois in the amount of approximately $12,500. This judgment was entered pursuant to the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1987, ch. 48, pars. 172.36 through 186.1), and it represented compensation for the same disability as to which Burwell received SUES disability benefits. Burwell’s attorney in the proceedings before the Industrial Commission was John C. Taylor, who is the plaintiff in the present action.

On August 15, 1985, Taylor notified SUES of his success in obtaining the Occupational Diseases Act award on Burwell’s behalf. Along with that letter, Taylor enclosed a check payable to SUES, Burwell, and Taylor in the amount of $6,954.66. Taylor stated he was entitled to 20% of this amount, or approximately $1,390, for his attorney fees pursuant to the “attorney’s trust fund doctrine.” He requested SUES endorse the check and return it to him.

David Hoffmeister, SUES’ executive director, responded to Taylor’s letter on August 22, 1985. He stated section 15 — 153.1(c) of the Illinois Pension Code (Code) (Ill. Eev. Stat. 1987, ch. 108V2, par. 15— 153.1(c)) provides SUES with a right to reimbursement of the disability benefits it paid Burwell from Burwell’s Occupational Diseases Act award. Hoffmeister maintained this legislation does not provide for a reduction of SUES’ reimbursement to account for attorney fees. Therefore, Hoffmeister demanded the entire $6,954.66 be remitted to SUES. Pursuant to section 15 — 185 of the Code (Ill. Eev. Stat. 1987, ch. 108V2, par. 15 — 185), Hoffmeister threatened to withhold any future SUES benefits payable to Burwell or his beneficiary if Taylor did not comply with this request.

On August 23, 1985, Taylor paid SUES the full amount which it requested. However, Taylor stated he was doing so under protest and would “pursue litigation against the SUES” for his fee.

On September 26, 1985, Taylor filed a small claims complaint against SUES. On January 9, 1986, the circuit court dismissed Taylor’s small claims count, but granted Taylor leave to amend his complaint by adding a second count requesting administrative review of SUES’ denial of Taylor’s claim for fees.

SURS subsequently filed a motion requesting dismissal of Taylor’s administrative review count for lack of jurisdiction. SURS alleged (1) Taylor had not exhausted his administrative remedies, and (2) Taylor requested a money judgment against the State, in violation of the doctrine of sovereign immunity. On August 7, 1986, the court denied SURS’ motion to dismiss the administrative review count. On November 28, 1986, the circuit court granted Taylor’s motion for summary judgment and ordered SURS to pay him $1,390.93. SURS appealed this decision.

On appeal, this court held the circuit court lacked jurisdiction to entertain Taylor’s complaint in administrative review because there had been no final administrative decision. This court reversed the circuit court’s judgment and dismissed the cause. Taylor v. State Universities Retirement System (1987), 159 Ill. App. 3d 372, 512 N.E.2d 399.

Taylor subsequently requested an administrative decision by SURS’ Board of Trustees regarding his claim for attorney fees. Because there were no factual questions, the matter was immediately referred to the executive committee of SURS’ Board of Trustees for decision. In an order entered December 4, 1987, the executive committee denied Taylor’s claim for fees. The executive committee based its decision in part on a reimbursement agreement signed by Burwell, which contained the following language:

“I understand that disability benefits payable by the State Universities Retirement System must be offset by workmen’s compensation and occupational disease payments, and if I subsequently qualify for such payments, I agree to reimburse the State Universities Retirement System for the full amount of the overpayment of disability benefits within 60 days after receipt of the workmen’s compensation or occupational disease payments.”

As an additional basis for its decision, the executive committee cited the lack of any statutory provision for payment of attorney fees in this type of situation.

On December 18, 1987, Taylor filed a complaint for administrative review of the SURS executive committee’s decision. On May 16, 1988, SURS filed a motion to dismiss based on an alleged lack of subject-matter jurisdiction. SURS contended Taylor was seeking a money judgment against the State, in violation of the doctrine of sovereign immunity.

On August 31, 1988, the circuit court dismissed Taylor’s complaint for administrative review on the ground Burwell was a necessary party and had not been named as a defendant. The court granted Taylor leave to amend in order to add Burwell as a party. On September 7, 1988, Taylor amended his complaint by adding Burwell as a nominal party defendant, against whom he requested no specific relief. SUES subsequently adopted its previously filed pleadings.

In a memorandum opinion and order filed March 29, 1989, the court considered the issues raised in SUES’ motion to dismiss and concluded it had jurisdiction over the proceeding under the Administrative Eeview Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), because SUES had made a final administrative decision. The court further found SUES did not have specific statutory authority to seek reimbursement from Burwell of the disability benefits it had paid him, but in effect held SUES had implied authority to take such action because of the manifest legislative intent of preventing double recoveries of disability benefits in the form of both SUES disability payments and Occupational Diseases Act awards. Because of the lack of direct statutory authority for SUES obtaining reimbursement of disability benefits under the facts of this case, the court held SUES’ claim for reimbursement is analogous to an insurance subrogation claim. Therefore, the court concluded the “attorney trust fund” doctrine is applicable to this case and held SUES is liable to Taylor for attorney fees. Finally, the court held it could not order SUES to pay Taylor the attorney fees to which he is entitled, because that would amount to a money judgment against the State. The court concluded Taylor would have to pursue his claim for payment of attorney fees in the Illinois Court of Claims.

SUES contends the portion of the circuit court decision holding it liable to Taylor for attorney fees is erroneous, because SUES has no authority, express or implied, to pay attorney fees in this type of situation. SUES states in contrast to the legislation concerning reimbursement of SUES disability benefits (Ill. Rev. Stat. 1987, ch. 1081/2, par. 15 — 153.1(c)), other legislation pertaining to disability benefits, such as the Workers’ Compensation Act and Occupational Diseases Act, specifically provides for the payment of attorney fees from amounts recovered thereunder. (111. Rev. Stat. 1987, ch. 48, pars. 138.16a, 172.51a.) SUES asserts an award of attorney fees in the type of situation here present would contravene the purposes of the relevant legislation by permitting employees in Burwell’s circumstances to obtain double disability benefits, at least in an amount equal to attorney fees. SUES concludes if the legislature had intended to permit recovery of attorney fees in this type of situation, it would have included explicit language to that effect in the relevant statutes.

Also, SUES argues that contrary to the circuit court’s holding, there is statutory authorization for it to recoup disability payments which it has already made. For this reason, SUES argues its claim for reimbursement of the disability benefits which it paid Burwell is not analogous to an insurance subrogation claim. Eather, SUES argues its claim is in the nature of a statutory lien on the overpayment of disability benefits which Burwell received. SUES contends authority to impose and collect on such a lien may be inferred as an incident of its express authority to deduct Occupational Diseases Act awards from the future disability benefits of persons in Burwell’s situation. (See Ill. Rev. Stat. 1987, ch. 10811/2, pars. 15 — 153.1(c), 15 — 185.) Finally, SUES asserts the attorney’s common-fund doctrine has never been utilized to provide a basis for an award of attorney fees against an administrative agency which has acted according to law, and the doctrine has been applied to governmental agencies only where an officer of the agency has committed an illegal act.

Taylor expressly declines to present an argument as to the issue of whether SUES is authorized by statute to recoup disability benefits under the facts of this case. Taylor states he seeks only to “assert the primacy of the attorney’s lien” over SUES’ recoupment rights. He asserts the attorney’s common-fund doctrine applies to this case because there was a fund within the control of the court from which attorney fees could be paid. Taylor states although the vast majority of cases in which the common-fund doctrine has been applied were insurance subrogation or class action cases, no court has expressly limited the applicability of the doctrine to such cases. Taylor further contends the disability benefits which SUES pays are in the nature of insurance, and therefore, the common-fund doctrine should apply to the recoupment of disability benefits by SUES to the same extent as it applies to other insurance subrogation situations.

Taylor also argues public policy considerations support a conclusion SUES should pay its fair share of attorney fees with respect to recoupment of disability benefits. Taylor asserts allowing no attorney fee awards in situations such as this would create a disincentive for recipients of SUES disability benefits to seek compensation for their injuries from other sources.

Before addressing the merits, we must consider our jurisdiction to adjudicate this appeal. This case had its origin in an administrative proceeding before SUES, and SUES’ decision was appealed to the circuit court pursuant to the administrative review provisions of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, pars. 3— 101 through 3 — 112.) The issue is whether the plaintiff is entitled to payments which have been withheld by SUES, which is a State agency. Therefore, SUES’ decision is reviewable in an administrative review action (Campbell v. Department of Public Aid (1975), 61 Ill. 2d 1, 329 N.E.2d 225), and we have jurisdiction to decide the issues presented by this appeal on their merits. This would not be true if the present action were not an administrative review proceeding and had instead originated as an action in the circuit court seeking money damages or injunctive relief. Because they might subject the State to monetary liability, such actions can only be brought in the Court of Claims. Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill. 2d 387, 466 N.E.2d 202.

Taylor does not assert SUES had no right to recoup the disability benefits which it paid Burwell. Thus, for purposes of this appeal, we need.only decide whether Taylor has a right to payment of attorney fees with respect to the amount of Burwell’s Occupational Diseases Act benefits which SUES recouped.

Under the common-fund doctrine, “an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from all those who seek to benefit from it.” (Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 124, 361 N.E.2d 1100, 1102.) In order to obtain a judgment for attorney fees under this doctrine, it is necessary for an attorney to establish that (1) the fund with respect to which fees are sought was created as a result of legal services performed by the attorney; (2) the claimant or holder of the fund did not participate in its creation; and (3) the claimant or holder of the fund benefited or will benefit from it. Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 470 N.E.2d 6; Smith v. Marzolf (1980), 81 111. App. 3d 59, 400 N.E.2d 949.

Taylor’s claim for attorney fees fulfills all of the above requirements. Taylor’s efforts and his efforts alone resulted in Burwell obtaining the award of benefits under the Occupational Diseases Act from which SUES recouped the disability benefits which it had previously paid Burwell; SUES did not in any way participate in the creation of that fund. And, SUES definitely benefited from the creation of that fund by obtaining a recoupment of $6,954.66, which it would not have received absent the fund’s creation.

SUES argues an additional requirement for application of the common-fund doctrine is a fund under the control of the court from which attorney fees can be paid. An examination of the cases in which the common-fund doctrine has been applied reveals no such requirement has been universally imposed as a prerequisite to application of the doctrine. For instance, in Baier, a leading supreme court case dealing with application of the common-fund doctrine in the context of insurance subrogation claims, the fund with respect to which fees were sought was paid directly to the insurer which asserted a subrogation claim. Thereafter, the attorney whose efforts created the fund filed a separate action against the insurer requesting payment of fees pursuant to the common-fund doctrine. At that time, there was no fund under the control of the court from which the fees which the plaintiff sought could have been paid. The supreme court nevertheless held the common-fund doctrine applied to the plaintiff’s claim for fees. Under the facts of this case, we perceive no reason for imposing a requirement that there be a fund under court control in order for attorney fees to be paid pursuant to the common-fund doctrine.

We must next determine whether the facts of this case are so different from those of cases in which the common-fund doctrine has been applied as to preclude Taylor from recovering fees under the doctrine. Awards of attorney fees pursuant to the common-fund doctrine have been made in insurance subrogation cases (see Baier, 66 Ill. 2d 119, 361 N.E.2d 1100), and in cases brought on behalf of governmental units or governmental officials against other governmental units which result in diversion of tax revenues from one unit of government to another. (E.g., Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1; Board of Education of Community Unit School District No. 303 v. County Board of Kane (1976), 35 Ill. App. 3d 684, 342 N.E.2d 223.) The present case is quite similar to an insurance subrogation action; the only significant difference is the entity which asserted subrogation rights is a State agency rather than a privately owned insurance company. This distinction, as well as the fact that SUES’ subrogation rights have to at least some extent a statutory origin, is not sufficient to remove the present case from the class of cases to which the common-fund doctrine applies.

SUES states that in no previous case has the common-fund doctrine been applied against an administrative agency which acted according to law. This is only a partiaUy correct statement, for the doctrine has been applied in eases involving elected officials who acted pursuant to validly enacted statutes which were later declared unconstitutional. (DeBruyn v. Elrod (1983), 121 Ill. App. 3d 290, 459 N.E.2d 971.) In any event, an administrative agency’s actions, taken in compliance with the law, and which result in a claim for attorney fees, do not preclude application of the common-fund doctrine against the agency if all conditions for application of the doctrine are present.

As SUES points out, there is no explicit statutory authority

for application of the common-fund doctrine to recoupments of disability benefits which SURS obtains. Administrative agencies have, in addition to the powers conferred upon them by explicit statutory language, the power to do all which is reasonably necessary to effectuate the powers and authorities explicitly granted to them. Ted Sharpenter, Inc. v. Illinois Liquor Control Comm’n (1986), 148 Ill. App. 3d 936, 499 N.E.2d 669.

Section 15 — 153.1 of the Code provides in pertinent part:

“(c) In determining the monthly [State University Retirement System disability] benefits payable under this Article, a deduction shall be made equivalent to any benefits payable to any employee under any State or Federal Worker’s Compensation or Occupational Diseases Acts for any period for which disability benefits are payable.” (111. Rev. Stat. 1987, ch. 1081/2, par. 15 — 153.1(c).)

Section 15 — 185 of the Code provides in part:

“Annuities and other benefits payable under this Article and all accumulated credits of employees in this system shall be unassignable and shall not be subject to execution, garnishment or attachment. The board, however, may deduct from the benefits and credits, amounts owed by the participant or annuitant to the system.” (Ill. Rev. Stat. 1987, ch. IOSVb, par. 15 — 185.)

The purpose of this legislation is to prevent SURS participants from obtaining double recoveries of disability benefits (Hanson v. Board of Trustees of State Universities Retirement System (1983), 115 Ill. App. 3d 974, 451 N.E.2d 925) and to facilitate recoupment of SURS disability benefits to the extent a SURS participant is eligible for workers’ compensation or occupational diseases benefits for a period of time for which he or she received SURS benefits.

Holding the common-fund doctrine is inapplicable to recoupments of disability benefits by SURS would, in at least some instances, destroy any incentive SURS participants might have to apply for workers’ compensation or occupational diseases benefits and, thus, thwart the manifest legislative goal of conserving the SURS’ funds available for payment of disability benefits. Assume, for instance, SURS pays a participant disability benefits totalling $14,000, and the participant ultimately obtains a workers’ compensation award of $15,000 for the same time period for which he or she received SURS benefits. Under these facts, $14,000 of the workers’ compensation award would have to be paid to SURS. Assuming a 20% contingent-fee agreement, the injured worker’s attorney would be entitled to the remaining $1,000. (See 111. Rev. Stat. 1987, ch. 48, pars. 138.16a(B), (I).) At least some recipients of SUES disability benefits would not be willing to file a Workers’ Compensation Act or Occupational Diseases Act claim which would result in no net benefit to them. Thus, payment by SUES of attorney fees with respect to recoupments of disability benefits it receives is an action reasonably necessary to effectuate the powers conferred on SUES to conserve its funds available for payment of disability benefits and recoup previously paid disability benefits from other sources of disability benefits available to SUES participants.

As SUES observes, in Wargo v. State Universities Retirement System (1982), 106 Ill. App. 3d 930, 436 N.E.2d 745, this court held SUES does not have authority to determine who is eligible to participate in the system. However, SUES having the power to determine the eligibility of participants is not essential to SUES carrying out any functions prescribed or contemplated by the legislation pertaining to it.

We also find no merit in SUES’ contention that, because its right to recoup from Burwell’s Occupational Diseases Act award the disability benefits it previously paid him may be in the nature of a statutory lien, Taylor is somehow precluded from obtaining payment of attorney fees with respect to the amount of SUES’ recoupment. The possible existence of a lien on Burwell’s occupational diseases award does not preclude Taylor from obtaining a fee for his services in procuring the portion of that award which SUES recouped. Under the common-fund doctrine, Taylor’s fees do not have to be paid from the same funds which SUES recouped. Therefore, payment of the fees which Taylor requests would not be precluded by the priority of any SUES lien on the amount of Taylor’s Occupational Diseases Act award which SUES recouped.

SUES states a decision favorable to Taylor would result in a double recovery of disability benefits, at least in the amount of the attorney fees which Taylor claims. This simply is not true. The entire amount of the fees which Taylor recovers will go to Taylor; no portion of this amount will represent a double recovery of disability benefits on the part of Burwell.

SUES also suggests it may be able to recoup any fees which Taylor is awarded in this proceeding from any future SUES benefits to which Burwell becomes entitled. This question is not directly presented by the record in this cause, and we decline to address it.

We recognize, as SUES points out, the common-fund doctrine is to be applied with caution (see Tenney, 128 Ill. App. 3d 121, 470 N.E.2d 6), but as previously noted, this case is virtually identical to the typical insurance subrogation case to which the doctrine is fully applicable. We conclude the circuit court properly held SUES is liable for the attorney fees which Taylor claims.

We must finally consider whether the circuit court erred in holding Taylor’s only recourse for obtaining payment of the attorney fees which he seeks is an action in the Illinois Court of Claims. Taylor asserts that because he paid the amount of the recoupment which SUES requested to SUES’ executive director under protest, with a statement claiming a portion of the money under the common-fund doctrine, the executive director became trustee of the money. Taylor asserts that the money thereafter constructively remained in the hands of the executive director as trustee, regardless of where it was actually placed. Thus, argues Taylor, the circuit court judgment in his favor is a judgment against SUES as trustee of the disputed fund.

SUES maintains a circuit court money judgment against SUES, in the amount of the fees which Taylor claims, would violate the doctrine of sovereign immunity. SUES asserts that, unlike in cases in which sums which the State owes a party are recouped by means of tax credits, Taylor seeks to recover a sum of money from a State agency.

As we have previously noted, in administrative review proceedings a court may hold an individual is entitled to payment of sums which a department of State government has improperly withheld. A court may not, however, enter a money judgment against the State in such a proceeding. (Campbell, 61 Ill. 2d 1, 329 N.E.2d 225.) The proper forum for obtaining a money judgment against a State agency payable out of State funds is the Court of Claims. Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, 454 N.E.2d 1132.

In this case, the sole defendant is SUES, and Taylor does not dispute SUES is a State agency. SUES’ executive director is not a party to this action; thus, a money judgment could not be entered against him in his individual capacity even if he were still trustee of the fund with respect to which Taylor seeks payment of fees. Under the facts of this case, any money judgment would have to be paid from funds in the State treasury. The circuit court properly held Taylor’s only recourse for obtaining payment of the attorney fees to which he is entitled is an action in the Court of Claims.

Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 449 N.E.2d 65, cited in support of Taylor’s argument as to this issue, is factually distinguishable from the present case. There, the State Treasurer, who the court held was trustee of the disputed funds, was a party to the action. Moreover, Shell Oil was to recoup interest earned on a tax protest fund by means of credit memoranda issued by the Department of Revenue. No money judgments against the State or a State agency were involved.

The order of the circuit court holding SURS is liable to Taylor for attorney fees, but Taylor must obtain payment of the fees by means of an action in the Court of Claims, is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.