APPEAL from the Circuit Court of Rock Island County; the Hon.
ROBERT J. HORBERG, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a bench trial in the circuit court of Rock Island County, the defendant, Bernett Kiel, was found guilty of conspiracy to commit murder and sentenced to a term of imprisonment of from five to 15 years.
On appeal the defendant presents two issues: (1) the trial court erred in admitting the hearsay statements of alleged co-conspirators where the State had failed to establish first by independent evidence a prima facie case of conspiracy and (2) the State did not prove the defendant guilty beyond a reasonable doubt. We reverse.
The charge against defendant and others arose out of the shotgun murder of William Cotton in the early morning hours of December 11, 1974. Late in 1976 defendant was initially charged with murder and conspiracy to commit murder. The charge of murder was later dismissed and the defendant was convicted of conspiracy. At the time defendant was charged, Anthony Sanchez, Bernice Schomer and Dwayne Cunningham were all charged with various offenses stemming from the murder. In exchange for his testimony, Cunningham was granted immunity from prosecution and testified at the trials of the various other defendants. Defendant's trial was severed from the trial of Sanchez and Schomer, who were tried jointly first. Schomer was convicted of solicitation to commit murder and Sanchez was convicted of murder. Those convictions were affirmed on appeal. People v. Schomer (1978), 64 Ill. App.3d 440, 381 N.E.2d 62; People v. Sanchez (1978), 64 Ill. App.3d 446, 381 N.E.2d 66.
At her trial on June 13, 1977, the sole evidence of defendant's guilt of conspiracy was provided by Cunningham. Cunningham testified that on December 9, 1974, he arrived at the residence of the defendant and Sanchez (Schomer's son). Schomer, who lived next door, defendant, Sanchez, and Mary Sanchez, Schomer's daughter, were all present. When Cunningham entered the residence Schomer had a .38-caliber derringer in her hand. It appears that immediately prior to Cunningham's arrival, the victim, William Cotton, had been there inquiring about some money the defendant owed to Cotton. Kiel was either unable or refused to pay Cotton, whereupon Cotton threatened to take the television set. Schomer prevented him from doing so with the derringer, saying that if anything was taken he would be dead. According to the witness, Schomer then repeatedly said she wanted the "nigger" dead. Schomer sent the witness upstairs to get something and, while on the landing, he overheard a conversation. He said the topic of the conversation was Cotton and the defendant owing him some money. The witness then testified:
"Well, Anthony Ray Sanchez didn't want his mom to get into it and she said she wanted him dead, that if he wouldn't do it she would, and he kept telling her not to get involved, and Miss Kiel said she would get her brother Charles to take care of it.
Q. During the course of this conversation were they discussing any other person besides William Cotton?
Cunningham returned downstairs and the conversation continued:
"Well, after I come downstairs from the landing I didn't have what Mrs. Schomer sent me upstairs to get, so she sent her daughter upstairs to get it, and they got, Anthony kept telling his mom he didn't want her to get involved, and Mary Sanchez went upstairs and I came downstairs that is when she stated she would get her brother, Charles to kill the man and then nobody had to do the killing, and we left, me and Anthony Sanchez."
Following this conversation Sanchez, who had a .38-caliber revolver, and Cunningham drove to the victim's house, but he was not home. Later that evening, the two returned to the Sanchez-Kiel residence with the defendant, Sanchez, and Cunningham present, and the conversation again turned to Cotton.
"A. * * * he was telling me that he was going to take care of Cotton and she kept saying she wanted to go along.
Q. By `she' who do you mean?