APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
M. MAROVICH, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
On September 27, 1975, Thaddeus Jenkins, son of defendant J.R. Jenkins, died of a gunshot wound. Defendant was indicted for crimes allegedly committed to avenge the death of his son. After a jury trial, defendant was found guilty of solicitation of Barry Smoot to murder Robert Osborne, solicitation of Barry Smoot to murder Kenneth King, conspiracy, attempt murder and aggravated battery. Defendant was sentenced to the Illinois Department of Corrections to serve concurrent terms of 7 years for conspiracy, 10 years for attempt murder, and 10 years for each count of solicitation. Defendant appeals.
On appeal, defendant contends (1) he was denied his right to confront witnesses; (2) the grand jury testimony of a State's witness was highly suspect; (3) he was not proved guilty beyond a reasonable doubt; and (4) his conspiracy conviction should be reversed because it is a lesser included offense of attempt murder.
Douglas Iseminger testified that on September 27, 1975, he met Thaddeus Jenkins in a parking lot. He gave Jenkins $400 with which Jenkins was to buy marijuana. Thaddeus was accompanied by Robert Osborne who knew where the marijuana was to be purchased. Later that day, the body of Thaddeus Jenkins was found in a car in a ditch off the side of a road in Will County. Thaddeus had been shot and died as a result of the gunshot wound.
Patrick Barry, a Will County sheriff's deputy, ascertained that defendant J.R. Jenkins was the owner of the auto in which Thaddeus Jenkins was found. He testified that he informed defendant of the death of his son. While talking with defendant, Barry learned that Thaddeus had been cooperating with police in a drug investigation and that Thaddeus had feared for his life. Barry further testified that Robert Osborne had been charged with the murder of Thaddeus Jenkins.
Roy Anderson, a Will County sheriff's deputy, testified at the coroner's inquest into the death of Thaddeus. At the trial below, he testified that defendant attended the inquest. Anderson read that portion of the inquest transcript wherein defendant asked if private citizens had to take the law into their own hands and apprehend criminals.
The State also called Ira Goldstein as a witness. In 1975 Goldstein was an assistant State's Attorney in Will County. He testified that within one week of the dismissal of the murder charge against Robert Osborne, defendant came to the State's Attorney's office and spoke to the chief felony assistant. Goldstein heard defendant speaking loudly and entered the room in which defendant and the assistant were meeting. He recounted defendant's statements that "someone should put a bomb in the Will County Courthouse" and that "if the State's Attorney's office * * * isn't going to do anything about this, I will."
Barry Smoot was also called as a witness by the State. He testified that in 1975, he worked with defendant. He recalled firing a gun through a door of a home in Calumet City in 1975 and stated that defendant, prior to the incident, had pointed out the house to him. He further testified that Thomas Young *fn1 was with him when the shooting occurred. Smoot recalled testifying before the grand jury in 1977. However, Smoot could not recall whom he intended to shoot, whether Young had fired any shots, whether anyone was injured by the shots he fired, where he went after the incident, how long he had known defendant, or whether he spoke with defendant after the incident.
After the unsuccessful attempts to elicit testimony from Smoot, the State requested that Smoot be called as a court's witness. The trial court heard arguments on this point and granted the State's request. The court based its decision on its observation of Smoot's demeanor and Smoot's ability to recall some facts and not others. The court concluded that Smoot was "trying to foster off a sham" on the court.
The State resumed its examination of Smoot. Each time Smoot was unable to recall a fact, the State read the transcript of the grand jury proceeding concerning that matter. Occasionally, the statement Smoot gave police was also read. The evidence elicited via this procedure was that Smoot had known defendant since 1973. On October 1975, defendant asked Smoot to murder Robert Osborne, whom defendant believed was responsible for the murder of his son. To accomplish the deed, defendant gave Smoot a pistol, a .44 magnum, and a machine gun. Smoot gave the latter two weapons to his brother. Defendant paid Smoot $1600 to kill Osborne and Smoot, in turn, paid Young $250 to assist him. After the shooting occurred, defendant met Smoot at work and told him James, rather than Robert Osborne, had been shot and asked Smoot to try again to murder Robert Osborne. Defendant also had asked Smoot to kill Kenneth King.
First, defendant contends he was denied the right to confront witnesses against him where the trial court admitted into evidence the grand jury testimony of Barry Smoot. He maintains that said testimony was inadmissible because he had no opportunity to cross-examine Smoot during the grand jury proceedings. Defendant further maintains that the testimony was inadmissible as substantive evidence.
The primary purpose of the confrontation clause is to assure that the trier of fact has a satisfactory basis for evaluating the truth of testimony. (United States ex rel. Thomas v. Sielaff (S.D. Ill. 1975), 404 F. Supp. 1037, aff'd (7th Cir. 1976), 539 F.2d 715.) Stated differently, the issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine the witness' credibility. People v. Hines (1981), 94 Ill. App.3d 1041, 419 N.E.2d 420, citing Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, and Thomas v. Cardwell (9th Cir. 1980), 626 F.2d 1375.
• 1 In the present case, defendant was afforded the opportunity to cross-examine Smoot and challenge his credibility. Smoot was questioned at length about the length of time police held him in custody and the procedures employed in questioning him. Defendant inquired about Smoot's heroin addiction in the years in question, and Smoot admitted using heroin at the time of the occurrence. During defendant's examination of Smoot, Smoot admitted he was offered leniency when questioned by police. He also admitted receiving immunity from prosecution in return for his testimony before the grand jury. Thus, we find the jury was presented with various factors upon which to judge Smoot's credibility and conclude defendant's confrontation rights were not violated.
The fact that defendant was not present and had no opportunity to cross-examine Smoot at the grand jury hearing does not prohibit the use of his grand jury testimony at the trial. In United States v. Insana (2d Cir. 1970), 423 F.2d 1165, cert. denied (1970), 400 U.S. 841, 27 L.Ed.2d 76, 91 S.Ct. 83, a government witness consistently claimed lack of memory during trial. The government's request that the witness be declared hostile was granted and the court permitted the government to lead the witness and impeach his lack of memory by the use of his grand jury testimony. The court of appeals rejected defendant's contention that the witness' claimed lack of memory prohibited effective cross-examination regarding the extra-judicial statements. The court reasoned that the witness was present in court and subject to ...