APPEAL from the Circuit Court of Stephenson County; the Hon.
DEXTER A. KNOWLTON, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty by a Stephenson County jury of conspiracy to commit murder and solicitation to commit murder. The trial court sentenced defendant to concurrent terms of six years' imprisonment on the two offenses. Defendant now appeals, alleging that the trial court committed reversible error in failing to, sua sponte, instruct the jury as to the object offense of murder. Alternatively, defendant argues that the trial court abused its discretion in imposing concurrent sentences of six years' imprisonment. The sufficiency of the evidence is not raised.
Briefly summarized, the evidence adduced at trial was as follows. The State's first witness, Don DeBoer, testified that he had a conversation with the defendant in the early fall of 1978 at which time she asked DeBoer if he knew of anyone who could "get rid of her husband." The defendant's alleged accomplice, Judith Meyers, subsequently asked DeBoer if she could have some mail sent to his house, which he agreed to. In January 1979, two letters were sent to the local V.F.W. commander requesting help "in finding someone that would get rid of a cop and a friend." The writer indicated a willingness to pay up to $2,000 and left a telephone number and an address where (s)he could be reached. It was later determined that the address mentioned in the letters was that of Dan DeBoer, that the phone number was listed to Judith Meyers' residence, that the letters were traceable to defendant's place of employment and that fingerprints identifiable as defendant's were on the letters.
At that point, the local police contacted the State Police and Earl Hernandez, a special agent with the Illinois Department of Law Enforcement, was brought into the case as an undercover agent. After obtaining a court order, arrangements were made to monitor conversations between Hernandez and the party whose phone number was listed in the letter. Hernandez called the number and told the female who answered the phone that he heard from someone at the V.F.W. that she had a "job" she wanted done. The female, later identified as Judith Meyers, responded, "It wasn't for me, it is for a friend." During that and subsequent recorded conversations, it was agreed between Meyers and Hernandez that the job would be done for "the one," a police officer, for $2,500 and that Meyers and Hernandez would meet, along with Mrs. Meyers' friend who wanted the "job" done, at a local hotel later in the week.
On the day on which the meeting was to take place, defendant and Mrs. Meyers went together to a local finance company where Mrs. Meyers obtained a $700 loan, ostensibly for the purpose of fixing her car and getting a divorce. Meanwhile, preparations were being made to conduct a surveillance of the meeting, including wiring Hernandez for sound. That evening the three met as planned and conversed in a car parked in the hotel parking lot. The tape recording of the ensuing conversation indicated that Hernandez received a photograph of defendant's husband, a county sheriff's officer, from Judith Meyers and that defendant provided Hernandez with the following information: written instructions on how to get to the Carey home and to Mr. Carey's place of employment, a description of the car driven by Mr. Carey and the clothing he usually wore, as well as $700 cash. The defendant was then arrested.
The defendant testified at trial that she had agreed to go shopping with Mrs. Meyers that evening; that instead Mrs. Meyers drove to the hotel and en route indicated to defendant that she, Mrs. Meyers, planned to kill her own husband; that Mrs. Meyers told defendant that they were going to meet a friend of her brother's and that Mrs. Meyers wanted defendant to pretend she wanted to get rid of her husband; that when Mrs. Meyers' "brother's friend," who in fact was special agent Hernandez, got in the car, Mrs. Meyers constantly whispered instructions to defendant on what to say and defendant merely repeated it to this man; and, finally, that she never wanted her own husband killed, but was simply playing along for the benefit of Meyers.
• 1 It is the general rule in Illinois that "[n]o party may raise on appeal the failure to give an instruction unless he shall have tendered it." (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(i); see also People v. Underwood (1978), 72 Ill.2d 124, 129, 378 N.E.2d 513, 515; People v. Mumford (1979), 70 Ill. App.3d 395, 403, 387 N.E.2d 910, 916.) However, in criminal cases, the waiver rule does not preclude judicial review of "substantial defects" in jury instructions "if the interests of justice require." (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c); see also People v. Roberts (1979), 75 Ill.2d 1, 15, 387 N.E.2d 331, 338; People v. Underwood (1978), 72 Ill.2d 124, 130, 378 N.E.2d 513, 516.) Thus, "[i]t has been held error to fail to instruct the jury on the elements of the crime [citation] or on reasonable doubt and presumption of innocence [citation] even if no such instructions are tendered." (People v. Weeks (1976), 37 Ill. App.3d 41, 46, 344 N.E.2d 791, 794-95; see also People v. Parks (1976), 65 Ill.2d 132, 137, 357 N.E.2d 487, 489; People v. Vinson (1978), 61 Ill. App.3d 684, 688, 378 N.E.2d 348, 351.) Although the cases do not explicitly so state, it is implicit in those decisions that such instructional defects are "substantial" and, therefore, are not waived under Rule 366 (Ill. Rev. Stat. 1979, ch. 110A, par. 366). This exception to the waiver rule, however, is "a limited exception [citation], to be used to correct `grave errors' [citation], or to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed [citation]." People v. Roberts (1979), 75 Ill.2d 1, 14, 387 N.E.2d 331, 337; see also People v. Ogunsola (1980), 91 Ill. App.3d 26, 414 N.E.2d 219, 224.
In the case at bar, defendant failed to tender an instruction on the definition of murder at the instructions conference, but now argues that such failure does not constitute a waiver since such an instruction relates to an essential element in conspiracy and solicitation to commit murder cases. The issue before the court then can be rephrased in the language used by the supreme court in People v. Underwood:
"* * * whether the definitional instruction omitted was so basic to the given instruction * * * that failure of the trial court to sua sponte give it resulted in an unfair trial." 72 Ill.2d 124, 130-31, 378 N.E.2d 513, 516.
In support of her argument, defendant cites People v. Burdine (1978), 57 Ill. App.3d 677, 373 N.E.2d 694, and People v. Davis (1966), 74 Ill. App.2d 450, 221 N.E.2d 63, as analogous cases relating to the inchoate offense of attempt. In Burdine, the court stated:
"[W]here the crime charged is attempt, the court must not only relate the elements of attempt itself but also of the specific offense allegedly attempted." (57 Ill. App.3d 677, 681, 373 N.E.2d 694, 698.)
In Davis, the court reversed the defendant's conviction for attempt robbery where the trial court failed to, sua sponte, instruct the jury on the definition of robbery, stating:
"The jury was, therefore, left to its own devices in determining what `specific offense' the court was referring to in its definition of attempt, as well as in determining whether defendant had taken a `substantial step' toward its commission. Such a verdict cannot be permitted to stand." (74 Ill. App.2d 450, 453, 221 N.E.2d 63.)
From Burdine and Davis, defendant would have us conclude that the jury must be instructed on the object ...