{ "id": 2669886, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN YOUNG, Defendant-Appellant", "name_abbreviation": "People v. Young", "decision_date": "1989-08-29", "docket_number": "No. 1\u201487\u20142215", "first_page": "977", "last_page": "988", "citations": [ { "type": "official", "cite": "187 Ill. App. 3d 977" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "539 N.E.2d 1196", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "128 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228677 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0540-01" ] }, { "cite": "180 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615187 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0418-01" ] }, { "cite": "482 U.S. 496", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216766 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/482/0496-01" ] }, { "cite": "426 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469875 ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0281-01" ] }, { "cite": "494 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 757", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499273 ], "weight": 3, "pin_cites": [ { "page": "763" }, { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0757-01" ] }, { "cite": "357 N.E.2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2724530 ], "year": 1981, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0744-01" ] }, { "cite": "336 N.E.2d 815", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2797112 ], "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0828-01" ] }, { "cite": "430 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1975, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071717 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "766" }, { "page": "766" }, { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0761-01" ] }, { "cite": "385 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "pin_cites": [ { "page": "305-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "410 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480259 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "542" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0537-01" ] }, { "cite": "362 N.E.2d 701", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3369000 ], "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0362-01" ] }, { "cite": "456 N.E.2d 686", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630546 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "473" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0468-01" ] }, { "cite": "248 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 519", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847775 ], "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0519-01" ] } ], "analysis": { "cardinality": 896, "char_count": 24625, "ocr_confidence": 0.771, "pagerank": { "raw": 1.1027693775111057e-07, "percentile": 0.5687630823264214 }, "sha256": "50be83fd1532f271b16cb047ccc184fc84f9ff811e70d75872450460c7b743a6", "simhash": "1:ab9d6bea776c95f1", "word_count": 4045 }, "last_updated": "2023-07-14T19:20:22.173562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN YOUNG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nDefendant Nathan Young was indicted on two counts of murder and one count of armed violence in connection with the fatal shooting of Theodore Grimes on July 12, 1986. Following a bench trial, defendant was found guilty of murder and armed violence and sentenced to imprisonment for concurrent terms of 32 years for murder and 30 years for armed violence.\nOn this appeal, defendant claims that (1) the trial court erroneously permitted a State\u2019s witness to testify in violation of the court\u2019s order excluding -witnesses from the courtroom during the trial; (2) the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense; (3) the evidence at most supports a conviction for voluntary manslaughter; (4) the evidence does not support separate convictions for both murder and armed violence; and (5) the trial court erroneously considered victim impact statements at sentencing.\nAt approximately 11:30 p.m. on July 12, 1986, defendant shot and killed Theodore Grimes. Just moments before the killing, an altercation involving defendant\u2019s brother, William Young, occurred on the comer of 113th and May Street in Chicago. Cornelius Lyons and Andrew McKinney both testified that at approximately 11:30 p.m. on July 12, 1986, they met Grimes and a third person named Fred on the corner of 113th and Morgan Street. The four of them walked down 113th Street on their way to a party at 116th and Hale Street. When they reached 113th and May Street, they encountered William Young and two other men named Hank and Jerry standing on the corner.\nMcKinney and Hank engaged in an oral altercation, after which William Young told McKinney that McKinney \u201cain\u2019t tough.\u201d McKinney replied \u201cI know I\u2019m not tough,\u201d and William Young then pulled out a gun and started shooting. McKinney then told William Young that he would \u201ckick his ass\u201d because William Young was firing blanks. At that point, William Young, using either another gun or the same gun with bullets in it, pointed the gun at McKinney\u2019s head. McKinney said \u201c[g]o ahead, make my day\u201d and William Young then shot McKinney in the shoulder.\nThe group, including Lyons, McKinney and Grimes, then walked six blocks to a bench in Ada Park. There, McKinney told Robert Wright that he was hurt and Wright asked if he wanted to be taken to the hospital. McKinney said yes but then asked Lyons to get Lyons\u2019 father to take him to the hospital.\nAs Lyons was walking away to get his father, defendant \u201ccame up running\u201d and shot Grimes in the face. Grimes had been sitting on top of the bench, fell off the bench after he was shot, and then crawled on the ground. After shooting Grimes in the face, defendant fired shots at Lyons and McKinney, walked \u201cright up over\u201d Grimes, shot Grimes in the head, and then ran away. McKinney testified that he grabbed a bottle and threw it at defendant as defendant was running away.\nAfter the police arrived, Lyons took them to defendant\u2019s house on Aberdeen Street and identified defendant as the person who shot Grimes.\nRobert Wright testified that he was \u201cshooting craps by a bench in Ada Park\u201d at the time of the Grimes shooting. Wright saw defendant pull out a gun and shoot Grimes, and then saw Grimes \u201cstumbleQ\u201d over the bench he had been sitting on. Wright ran away after Grimes was shot and heard \u201cseveral\u201d more shots as he was running. On cross-examination, Wright testified that he had spoken with a man named Carl Thomas in the lockup on May 20, 1987 and told Thomas that defendant had killed one of \u201chis partners.\u201d Wright denied that he had told Thomas that defendant had killed one of his \u201cfolks.\u201d\nMichael Draine testified that he was \u201cshooting dice\u201d in Ada Park on the night of the Grimes shooting, at a distance of approximately 30 feet from the bench where Grimes had been sitting. Draine saw Lyons, McKinney, Grimes and \u201canother guy named Fred\u201d near the bench. Draine also saw McKinney bleeding from the shoulder and talking with Robert Wright. Draine heard some shots, saw defendant standing behind Wright and Grimes, and then saw Grimes fall after he \u201cjumpfed]\u201d over a bench. According to Draine, defendant stood over Grimes, shot Grimes again in the head, and only then started \u201cfiring shots at everybody.\u201d Draine did not see anyone throw a bottle at defendant.\nChicago police officer Thomas Reid testified that on July 12, 1986, he responded to a call of shots fired in Ada Park and saw Grimes lying on the ground. Lyons and Draine took Reid and his partner to defendant\u2019s house, where Lyons identified defendant as the man who shot Grimes. Reid prepared a police report approximately IV2 hours after defendant was arrested and also after he had interviewed Lyons and Draine. Reid\u2019s report states that defendant shot McKinney rather than Grimes.\nGail Turnstall testified for the defense. Turnstall was in the lockup with Robert Wright on May 20, 1987. Turnstall testified that Wright told him that defendant had killed \u201cone of his [Wright\u2019s] folks\u201d and that they would \u201cget Nathan Young either here or when he get [sic] to the penitentiary.\u201d At the time of his conversation with Wright, Turnstall was familiar with defendant\u2019s case and had been defendant\u2019s cell mate in jail. Turnstall had been sentenced to the penitentiary for violation of probation for robbery.\nChicago police officer Daniel McWeeny also testified for the defense. McWeeny had interviewed Lyons, McKinney and Draine regarding the Grimes shooting. According to McWeeny, Lyons said that defendant had shot McKinney in the arm and jumped over a park bench and shot Grimes; McKinney said that gang threats were exchanged on the night of the Grimes shooting and that defendant told Grimes \u201cI got you now\u201d and then started shooting; and Draine said that he saw Grimes run and trip over a park bench before he was shot. McWeeny also testified that he spoke over the telephone to Glenn Gibson, an investigator from the coroner\u2019s office, and told Gibson that defendant had stated that Grims \u201cthrew a bottle at him, so he shot him.\u201d According to McWeeny, defendant was the only person who said anything about a bottle.\nDefendant then testified that at approximately 11:30 or 11:45 p.m. on July 12, 1986, he was walking alone through Ada Park. He passed six people standing in a group and, from a distance of 15 or 20 feet, heard one of them say \u201c[tjhere\u2019s his brother\u201d and heard another say \u201c[l]et\u2019s get him.\u201d Defendant was then hit in the back of the leg with a bottle. As the group approached him, defendant got scared and pulled out a gun, displaying it at chest level as a warning.\nDefendant testified that the group \u201ccontinued to approach\u201d him and that, after he \u201crealized they wasn\u2019t [sic] going to stop[,]\u201d he fired \u201ctowards the closest one.\u201d He fired two shots and then saw \u201cone guy go down as if he had tripped or something\u201d about one or two feet in front of him. Defendant fired again \u201ctowards the ground\u201d because he could not tell if the person who fell had been hurt or if he had a weapon and also because he had been told previously that it is not painful to be shot with a .22 caliber gun. Finally, defendant claimed that after he fired the shot towards the ground, he fired a few shots at the rest of the group and then ran home. On cross-examination, defendant admitted that he denied any involvement in the shooting when he initially spoke with the police.\nThe final witness for the defense was Glen Gibson, the investigator from the coroner\u2019s office who had spoken with Officer McWeeny on the telephone. Gibson testified that McWeeny told him defendant had stated that he shot Grimes because Grimes threw a bottle at him.\nAfter closing arguments, the trial court found defendant guilty as charged. On July 2, 1987, the trial court denied defendant\u2019s motion for a new trial and proceeded to hear arguments in aggravation and mitigation. Over defendant\u2019s objection, the trial court allowed the State to present two victim impact statements, one by Grimes\u2019 stepfather and the other by Grimes\u2019 mother. The trial court sentenced defendant to concurrent terms of 32 years for murder and 30 years for armed violence. However, the written sentencing order indicates that the two terms are to run consecutively.\nI\nDefendant maintains that the trial court erroneously permitted Andrew McKinney to testify because McKinney was in the courtroom during a portion of Cornelius Lyons\u2019 testimony, despite the trial court\u2019s order excluding witnesses from the courtroom during the trial. Defendant claims that McKinney had been in the courtroom for approximately 10 minutes listening to Lyons\u2019 testimony and had overheard Lyons\u2019 testimony regarding the locations of the shooting incidents. Defendant argues that the trial court abused its discretion in allowing McKinney to testify because McKinney had the opportunity to conform his testimony to that of Lyons.\nWhere the trial court has ordered witnesses excluded from the courtroom during the trial, it is within the discretion of the court to allow the testimony of a witness who has violated that exclusion order. (People v. Gibson (1969), 42 Ill. 2d 519, 525, 248 N.E.2d 108.) The trial court\u2019s decision to allow the witness to testify will not be disturbed on appeal absent an abuse of that discretion. (People v. Wiatr (1983), 119 Ill. App. 3d 468, 473, 456 N.E.2d 686.) The burden of proof is on the party alleging error to show prejudice resulting from the trial court\u2019s decision to allow the witness to testify. People v. Wiatr, 119 Ill. App. 3d at 474; People v. Johnson (1977), 47 Ill. App. 3d 362, 369, 362 N.E.2d 701.\nIn this case, McKinney had been down the hall testifying in another courtroom before entering the courtroom where defendant was on trial. McKinney\u2019s presence in the courtroom was discovered shortly after defense counsel began cross-examining Lyons. The prosecution promptly notified the trial court of McKinney\u2019s presence. McKinney was immediately removed from the courtroom and Lyons then concluded his testimony. The State called McKinney as its next witness and defense counsel objected to him testifying. The trial court asked McKinney how long he had been in the courtroom and what he had heard. McKinney stated that he had been in the courtroom for 10 minutes and heard Lyons testify only to where Lyons met McKinney, where Lyons was when McKinney was shot, and where Lyons went afterwards. After noting that Lyons\u2019 entire testimony lasted approximately one hour, the trial court asked McKinney if he understood that he was to testify only as to his own observations based on his own recollection. McKinney replied in the affirmative and was then permitted to testify.\nDefendant plainly was not prejudiced by McKinney\u2019s testimony. A review of the record indicates that the only testimony McKinney overheard was testimony elicited on cross-examination that Lyons met McKinney on the corner of 113th and Morgan, intending to go to a party at 116th and Hale. When McKinney testified on direct examination, he also stated that he met Lyons on the corner of 113th and Morgan, intending to go to a party at 116th and Hale. However, McKinney testified further that the party was being given by one of his ex-girlfriends, a statement not elicited from Lyons on cross-examination. This suggests that McKinney gave his own account of his intention to go to a party that night and did not conform his testimony to that of Lyons. Even if McKinney had conformed his testimony to that of Lyons, defendant was not prejudiced by McKinney\u2019s testimony, because McKinney plainly gave his own account of the shooting incidents and the events that occurred in Ada Park.\nII\nDefendant maintains next that the State failed to prove beyond a reasonable doubt that he did not shoot Grimes in self-defense. Defendant claims that the State\u2019s proof was unsatisfactory because of inconsistencies (1) between Lyons\u2019 and McKinney\u2019s testimony regarding what McKinney said during the altercation on the corner of 113th and May; (2) between Lyons\u2019 and McKinney\u2019s testimony regarding whether any gang threats were exchanged; (3) in Lyons\u2019 testimony regarding who shot McKinney; (4) between Lyons\u2019 and Draine\u2019s testimony regarding when they saw defendant in Ada Park; (5) between the testimony of Lyons and McKinney on the one hand, and Draine on the other hand, regarding whether Grimes fell off or jumped over the bench after he was shot; (6) between McKinney\u2019s and Wright\u2019s testimony regarding whether McKinney was sitting or standing when defendant appeared; (7) regarding whether defendant fired at the group before or after shooting Grimes the second time; (8) in the evidence regarding whether defendant turned Grimes over before shooting him again; (9) in the evidence regarding the distance from which Grimes was shot; and, finally, (10) between Officer Reid\u2019s report and the testimony of the other witnesses regarding whether defendant shot McKinney, rather than Grimes.\nDefendant maintains that, contrary to the testimony of the State\u2019s witnesses, his own account of the shooting incident was clear, convincing, and corroborated. Defendant notes in particular that Glenn Gibson, the investigator in the coroner\u2019s office, testified that Detective McWeeny told him, consistent with defendant\u2019s self-defense theory, that defendant had stated he shot Grimes after Grimes threw a bottle at him. Defendant maintains further that the State\u2019s version of the events is \u201cnonsensical\u201d and \u201ccontrary to human experience\u201d because the fact that William Young, defendant\u2019s brother, was not injured by McKinney and his group meant that defendant did not have any motive to retaliate, and because one person would not \u201cgo out after a group of gang members who are hanging out in a park at that hour of the night.\u201d Defendant argues that it is easier to believe McKinney\u2019s group would retaliate against defendant for the attack by William Young.\nSelf-defense is an affirmative defense (Ill. Rev. Stat. 1985, ch. 38, par. 7 \u2014 14), and once it has been raised by the defendant, the State has the burden of disproving it beyond a reasonable doubt. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) Whether an otherwise criminal act is justified under the law of self-defense depends on all the surrounding facts and circumstances of the case and is to be determined by the trier of fact. People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.\nIn a bench trial, it is the function of the court to determine the credibility of the witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649.) The trier of fact is not required to believe the defendant\u2019s version of the events. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358; People v. Liddell (1975), 32 Ill. App. 3d 828, 830, 336 N.E.2d 815.) Rather, in weighing the defendant\u2019s version of the incident, the trier of fact should consider the probability or improbability of the defendant\u2019s account, the circumstances surrounding the crime and the relevant testimony of other witnesses. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358; People v. Walden (1976), 43 Ill. App. 3d 744, 749, 357 N.E.2d 232.) The court\u2019s determination will not be disturbed on appeal unless it is palpably erroneous. People v. Lester (1981), 102 Ill. App. 3d 761, 767, 430 N.E.2d 358.\nIn this case, defendant was the only witness who testified that a bottle was thrown before the shooting or that anyone said \u201c[tjhere\u2019s his brother\u201d and \u201c[ljet\u2019s get him.\u201d On the other hand, the State\u2019s witnesses testified that they saw defendant shoot Grimes in the face. Lyons, McKinney, and Draine testified that they saw defendant shoot Grimes a second time in the head after Grimes had fallen off the bench and was crawling on the ground. Only Draine testified that defendant fired at the crowd after the second shot to Grimes\u2019 head. The other witnesses testified that defendant fired into the crowd between the first shot to Grimes\u2019 face and the second shot to Grimes\u2019 head. Finally, defendant\u2019s account of the shooting incident is unconvincing because it is improbable that defendant happened to be strolling through the park; that his initial shots, fired to scare off his assailants, both happened to strike Grimes in the head; and that he shot Grimes again because he did not think a .22 caliber gun could have hurt Grimes.\nThe trial court heard the testimony and did not believe defendant\u2019s account of the shooting incident. The trial court also considered the discrepancies in the testimony of the State\u2019s witnesses in weighing that testimony. The trial court concluded that there was sufficient evidence presented at trial to disprove beyond a reasonable doubt that defendant shot Grimes in self-defense. Given the evidence presented that defendant walked over to where Grimes was crawling on the ground and shot him in the head, the trial court\u2019s finding is not palpably erroneous and will not be disturbed on appeal.\nIII\nDefendant maintains that the evidence at most supports a conviction for voluntary manslaughter. Defendant argues that the only credible account of the Grimes shooting was his own testimony at trial that he acted in self-defense. Defendant maintains that, even if the State proved beyond a reasonable doubt that he did not act in self-defense, the trial court should have found that he acted unreasonably in defending himself.\nVoluntary manslaughter is the intentional or knowing killing of another committed under an unreasonable belief that deadly force is necessary. (Ill; Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(b).) Thus, voluntary manslaughter is similar to the defense of self-defense in that both involve defendant\u2019s subjective belief at the time of the killing that deadly force was justified. The difference is the reasonableness of that belief. If the trier of fact finds that the defendant did not act in self-defense, but nevertheless finds that the defendant acted under a belief, albeit unreasonable, that force was justified, then the crime will be reduced from murder to voluntary manslaughter. (People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.) However,\nthe reviewing court will not reduce a conviction for murder to voluntary manslaughter where the trier of fact has reasonably concluded that the defendant had no basis whatsoever for his belief that deadly force was necessary to protect his own life. People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.\nIn People v. Eshaya (1986), 144 Ill. App. 3d 757, 494 N.E.2d 772, for example, the court rejected the defendant\u2019s argument that his conviction for murder following a jury trial should be reduced to voluntary manslaughter on the ground that he unreasonably believed that deadly force was justified. In that case, the State\u2019s witnesses testified that the victim and his fellow gang members were unarmed when the defendant shot the victim from a distance of 20 feet. The defendant claimed that the victim and his fellow gang members were armed with baseball bats, knives, and pool cues. The jury found the defendant guilty of murder. On appeal, the court refused to reduce defendant\u2019s conviction to voluntary manslaughter, because the jury could have reasonably concluded that there was no justification whatsoever for defendant\u2019s use of deadly force.\nIn this case, the State\u2019s witnesses testified that defendant approached Grimes, shot him in the face, fired several shots at other people nearby, and, finally, walked over to where Grimes was crawling on the ground and shot him again in the head. Defendant testified that he was \u201cscared\u201d and, like the defendant in Eshaya, believed that Grimes and others were armed. However, it is plain that the trial court did not credit defendant\u2019s testimony. Rather, in finding defendant guilty of murder, the trial court concluded that there was no basis whatsoever for defendant\u2019s alleged belief, reasonable or unreasonable, that deadly force was necessary to protect his own life. That conclusion is not palpably erroneous, because it is consistent with the evidence presented at trial and contrary only to defendant\u2019s own testimony. Accordingly, as in Eshaya, defendant\u2019s conviction for murder will not be reduced to voluntary manslaughter.\nIV\nDefendant maintains that his armed violence conviction must be vacated because his convictions for murder and armed violence were based on the same acts. Defendant argues that only one conviction was permissible because \u201cthere was only one murder victim and only one act of murder.\u201d Defendant also maintains that the sentencing order incorrectly indicates that he was sentenced to consecutive terms of imprisonment. Defendant argues that because his armed violence conviction must be vacated, and because the sentencing order is incorrect, his case should be remanded for resentencing.\nIn People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, the Illinois Supreme Court held that the defendant\u2019s conduct consisted of separate physical acts and supported convictions for attempted murder and armed violence. In that case, the evidence at trial established that the defendant first cut the victim\u2019s neck with a machete, then cut another person\u2019s fingernail, and finally moved the machete back to the victim\u2019s neck and severed the victim\u2019s windpipe with a \u201cpretty hefty yank.\u201d\nIn this case, the two offenses were likewise based on separate acts. Three State\u2019s witnesses testified that defendant first shot Grimes in the face, then fired at a crowd in a different direction, and, finally, walked over to where Grimes was crawling on the ground and shot him in the head. The initial shot to Grimes\u2019 face and the second shot to Grimes\u2019 head were distinct physical acts because, just as the two cuts to the victim\u2019s neck in Myers were separated by the cutting of another person\u2019s fingernail, the two shots in this case were separated by the intervening act of firing at Lyons and McKinney. It follows that the evidence supports convictions and concurrent sentences for murder and armed violence. However, as both parties agree, the written sentencing order should be clarified to indicate that defendant received concurrent terms of imprisonment.\nV\nFinally, defendant maintains that the trial court erred in considering victim impact statements at his sentencing hearing. Specifically, defendant notes that in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the Supreme Court held that victim impact statements may not constitutionally be considered in aggravation at capital sentencing hearings. Defendant asserts that this court extended Booth to noncapital sentencing hearings in People v. Fellela (1st Dist. 1987), No. 85 \u2014 3515 (unpublished order under Supreme Court Rule 23).\nHowever, the victim impact statements were properly considered at sentencing under the Illinois Bill of Rights for Victims and Witnesses of Violent Crimes Act (Ill. Rev. Stat. 1985, ch. 38, par. 1401 et seq.). In Booth, the United States Supreme Court held that victim impact statements may not constitutionally be introduced at sentencing in capital cases. However, the court expressly stated that its holding did not preclude the use of victim impact statements in noncapital cases. Indeed, the Illinois Supreme Court recently decided in People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, that victim impact statements may constitutionally be considered as factors in aggravation at non-capital sentencing hearings. Even before Turner was decided, this court declined to extend Booth to noncapital sentencing hearings in People v. Scott (1989), 180 Ill. App. 3d 418. Finally, defendant\u2019s reliance on Fellela, a Rule 23 order, is entirely misplaced.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. We remand to the trial court for the limited purpose of correcting the written sentencing order to indicate that defendant received concurrent terms of imprisonment.\nAffirmed and remanded.\nHARTMAN and SCARIANO, JJ., concur.", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Paul P. Biebel, Jr., Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Marie", "Quinlivan Czech, and William D. Carroll, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN YOUNG, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201487\u20142215\nOpinion filed August 29, 1989.\nPaul P. Biebel, Jr., Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Marie\nQuinlivan Czech, and William D. Carroll, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0977-01", "first_page_order": 1003, "last_page_order": 1014 }