Appeal from the Circuit Court of Putnam County; the Hon. Peter
J. Paolucci, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
The defendant, Melanie Kay Skiles, was originally charged by information with obstruction of justice. Before trial, an information was filed charging the defendant with murder by accountability under sections 5-1, 5-2, and 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 5-1, 5-2, 9-1). On the first day of trial, the State was allowed to drop the obstruction charge and join, by information, a charge of conspiracy to commit murder, under section 8-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a)). A jury convicted the defendant of conspiracy to commit murder and, on an accountability theory, voluntary manslaughter. She was sentenced to concurrent terms of four years' imprisonment on each guilty verdict. The defendant appeals and asks this court to reverse and remand those convictions, or, in the alternative, order a resentencing.
This case arises from the killing of Henry Nellums. Mr. Nellums, age 64, was shot in the head while sleeping. His stepdaughter, Darlene Nellums, age 14, held the gun and pulled the trigger. The bizarre facts surrounding this case developed in the following manner. On January 3, 1981, at approximately 6:30 a.m., the defendant, Melanie Skiles, age 18, called the police to the house trailer of Henry Nellums in Hennepin because there had been a shooting. Henry Nellums was found in the master bedroom lying on his back across his bed. He had been shot in the head; there was no pulse and the body was cold. The only other occupants in the trailer, when the police arrived, were the wife of the victim, Judy Nellums, and the adoptive daughter of Mr. Nellums, the natural daughter of Judy Nellums, Darlene Nellums. The defendant was Darlene's friend and had stayed the night as a guest.
During the course of the investigation, the defendant made several statements to the police. On the afternoon of January 3, she told the police that Judy Nellums had discovered the body and that because the room was in a shambles, they presumed an intruder had shot him, although no one heard any shots during the night. Later the same day, the defendant recanted and explained that the defendant and Darlene had returned to the trailer at approximately 2 a.m. on January 3, heard Judy and the victim arguing, heard a shot, and then learned that Judy had accidentally shot Mr. Nellums in a scuffle. The above statements were not offered in evidence.
On January 5, the police recorded two more statements by the defendant. The second statement corroborated the first, and went into more detail. A transcript of these two statements was presented to the jury, and the recordings were also played in their presence. The substance of these statements, which defendant claimed to be "the honest to God's truth," is as follows: On January 2, 1981, Darlene confided in the defendant that she and her mother hated her father, and that Darlene wanted to kill him. The record suggests that Henry Nellums had on several occasions abused both Darlene and Judy Nellums. Darlene told the defendant about her previous plans to kill Mr. Nellums. She had thought about shooting him while they were hunting or blowing him up in his truck. Darlene then began talking outright about killing her father. The defendant stated she helped Darlene come up with ideas for killing Mr. Nellums because she wanted to help her friend. They apparently came up with a plan, listed steps of things to do (the list was entered as an exhibit at trial), and began to follow the plan.
At about 10 p.m., after Mr. Nellums was heard snoring, Darlene got her gun, cleaned it, and then took steps to stage a robbery by taking the victim's wallet. Next, Darlene hid the money, gathered into a bag the wallet and some tape recordings which contained previous plans to kill her father, and at midnight Darlene and the defendant left the house trailer through Darlene's bedroom window. They walked to a nearby river. While the defendant waited on a landing, Darlene threw the bag and contents into the river. According to the defendant's latter statement, after the bag was thrown into the river, defendant thought they had to go through with the plan or else Darlene would be in a lot of trouble.
Darlene and the defendant next walked over to a male friend's house. Before calling on the friend, Darlene hid the gun and knife, which she had been carrying, in the friend's mailbox. The friend testified that they told him about the plan and showed him the weapons. The friend, intoxicated, did not believe them. After the friend returned inside, they returned to the victim's trailer. Before entering the trailer, Darlene slit Mr. Nellums' screen to create the appearance of a robbery. Shortly afterward, Darlene asked the defendant to shoot Mr. Nellums. The defendant absolutely refused and told Darlene she would have to do it herself. Darlene then went into her mother's room and apparently obtained her mother's permission to shoot the victim. Darlene returned to her father's room with the defendant. In the former recorded statement, the defendant claimed that she did not know if Darlene was serious or just "trying to pull [her] leg." Nevertheless, once in Mr. Nellums' room, Darlene motioned to the defendant to come closer to Darlene, and asked the defendant to keep talking (apparently to give Darlene support). The defendant stood one or two feet behind Darlene with her hand on Darlene's back. The defendant told Darlene to remember the freedom she was going to have and wanted, and that if Darlene backed out her father might kill her — that it was her life or his. The defendant told Darlene she was going to have money and freedom. The last word defendant spoke before the shooting was "freedom." Darlene then shot her father and later hid the gun in the humidifier.
Judy Nellums was not prosecuted. Darlene Nellums was prosecuted as a juvenile, under section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702-7). Pursuant to a fully negotiated plea of guilty to the concealment of a homicide, Darlene was made a ward of the court and was placed on probation. Darlene, during the course of her proceedings, was entrusted to the care of the Department of Children and Family Services (D.C.F.S.) and was treated by the Illinois State Psychiatric Institute (I.S.P.I.).
On appeal, the defendant presents 11 issues for review. We shall begin by considering, together, several issues which concern Darlene and the victim. These issues allege the lower court erred as follows: (1) Defense counsel should have been given the address of Darlene so that counsel could have spoken with her. The record, however, does not indicate that defense counsel wished to call Darlene as a witness; (2) Defense counsel should have been able to obtain the mental health record of Darlene compiled by the I.S.P.I. The trial court, besides questioning the relevancy of this information, agreed with the concerned State agencies that the information was confidential and protected by section 1 et seq. of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 801 et seq.); (3) Defense counsel should have been allowed to introduce evidence tending to show the victim's state of mind and Darlene's prior attempts to kill her stepfather. The record indicates that defense counsel was unable to lay the proper foundation required to introduce this evidence; (4) The court should not have granted the State's motion in limine which restricted defense counsel's ability to impeach Darlene, if she would have testified. However, Darlene was not called as a witness.
We would like to note briefly that the assistant State's Attorneys, in their brief, tell this court the disputed mental health report was turned over to the defense, that it is part of the record on appeal, and that we can see for ourselves the irrelevancy of the report. This statement is inaccurate. The report was not given to defense counsel and is not part of the record. Nevertheless, it is not necessary that this court review the report in order to sustain the trial court's rulings.
The above allegations of error are not well taken. Such evidentiary matters, the proof of which was the ultimate objective of defense counsel's maneuvering, was duplicative of other evidence available to the jury and immaterial to the charges brought against the defendant. Several times during the trial defense counsel explained to the lower court what would have been proved had the court ruled favorably upon his requests. Counsel claimed he could have shown that Darlene had a long-standing hatred of her stepfather, that Darlene had on previous occasions planned and attempted to kill her stepfather and that Darlene would have killed her stepfather on the night in question whether the defendant had been there or not. Counsel's reasoning was that if Darlene would have killed her stepfather on her own momentum, the defendant could not have contributed to the murder and thus could not be held liable for conspiracy or accountability.
• 1 First, we must note that the evidence presented by the State consisted, in large part, of two recorded, properly obtained, confessions of the defendant in which the defendant described, step by step, the events leading up to, including and after the shooting. The jury was given a transcript and the recordings were played in their presence. The defendant, in her confessions, recounted discussions in which Darlene described her long-standing hatred of her stepfather and the prior plans and attempts to kill him. In light of defense counsel's theory, it seems no new facts would have been established by introducing the omitted evidence. Furthermore, the record does not show that defense counsel made an offer of proof that the disputed evidence would have contradicted the defendant's confession. The introduction of the omitted evidence would have in no way changed the facts upon which the jury made its decision. Thus, its exclusion could not have been prejudicial to the defendant. People v. Marmon (1945), 389 Ill. 478; People v. Hairston (1980), 86 Ill. App.3d 295; People v. Hankins (1967), 90 Ill. App.2d 51, 58.
• 2 Second, the defendant was charged with conspiracy and accountability. Conspiracy requires a showing of an intent and an agreement on the part of the defendant to commit an offense, and an act in furtherance thereof (Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a)). Accountability can be founded upon the same proofs. The difference between the two crimes is that accountability requires the commission of an offense, whereas conspiracy does not require the commission of any offense. (Ill. Rev. Stat. 1981, ch. 38, pars. 5-1, 5-2; People v. Burleson (1977), 50 Ill. App.3d 629, 636; People v. Gregory (1979), 73 Ill. App.3d 127, 134.) The elements of these crimes do not require a showing of prior acts, motivations, state of mind and/or intent of the victim and/or accomplice in order to prove the crimes. It does not matter whether the accomplice would have performed the intended offense had the defendant never been born. What matters is the intent, agreement, and actions of the defendant. (People v. Ambrose (1975), 28 Ill. App.3d 627.) There was ample evidence presented at trial, most importantly the defendant's own undisputed confessions, for the jury to find that the defendant, with intent to commit an offense, aided and agreed with Darlene to commit an offense and an act in furtherance thereof occurred (thus establishing the conspiracy), and a killing took place (for which the defendant is accountable). Considering this conclusive proof of guilt arising from the confessions, this court cannot reverse the jury's verdict because of the omission of the disputed evidence. People v. Hankins (1967), 90 Ill. App.2d 51, 58.
We hold that the evidence which defense counsel sought to obtain and/or introduce at trial was immaterial to the charges brought against the defendant. Since this evidence was immaterial, there could not have been prejudice to the defendant by their exclusion.
• 3 We next turn to two of the defendant's contentions which will require a more precise analysis. The defendant argues that, contrary to the trial court's finding, conspiracy to commit murder is not an included offense of murder (by accountability) and, therefore, the court should not have allowed the State to add a conspiracy charge to its case on the first day of trial. The propriety of allowing the State to add a charge on the day of the trial does not turn on whether the added charge is, as a matter of law, a lesser included offense of the original charge. The issue is whether the defendant suffered a denial of due process in that the defendant was not given adequate time to prepare her defense. What is a reasonable time for preparation of a case must necessarily depend upon the facts and circumstances and is largely a matter resting in the sound judicial discretion of the trial court, which will be disturbed on review only when it is shown that the discretion has been abused. (People v. Storer (1928), 329 Ill. 536, 539-40; People v. Gore (1972), 6 Ill. App.3d 51, 55.) There is not a reversible abuse of discretion where the defendant has not been prejudiced by the refusal of the trial court to grant a continuance. The question to be answered is: Did the defendant have sufficient time to familiarize herself with the evidence and prepare a defense? (See People v. Gore (1972), 6 Ill. App.3d 51, 56.) If the addition of the conspiracy charge required the State to present a new theory of the case and new evidence, then, the defendant should have been allowed time to familiarize herself with the new theory and evidence. However, after reviewing the criminal informations and evidence, we believe the addition of the conspiracy charge did not change the theory of the case or require the introduction of new evidence.
• 4 The defendant was originally charged with the offense of murder by accountability in that with the intent to promote or facilitate the commission of the murder, she solicited, aided, and abetted Darlene in the planning or commission of the offense of murder. This is a very broad charge. The defendant was on notice that the State would try to prove intent and that a murder took place. The defendant was also on notice that the State could prove its case with any evidence which proved the defendant solicited, aided, abetted Darlene in the planning or commission of the offense. Such evidence could have been the verbal support the defendant gave Darlene, the discussions on how to commit the murder, the planning of the murder (these last two facts clearly show an "agreement" to commit the offense which is an element of the conspiracy charge), the assistance in getting the weapon and disposing of the bag, the physical assistance of standing by Darlene at the time of the murder. All and any of these facts were going to be at issue at the trial even before the conspiracy charge was added. The conspiracy information charged that the defendant, with the intent to commit murder, agreed with Darlene to the commission of the offense and performed an act in furtherance of that agreement. All the evidence needed to prove the conspiracy charge was already available to the defendant as part of the accountability charge. There was no new theory of the case. The story was the same. Furthermore, no new factual issues were raised. The defendant should have been familiar with the evidence and prepared to counter the proofs of the State for both charges. There was no reason to allow the defense extra time to review the case. Therefore, the trial court did not abuse its discretion and the defendant was not denied her due process right. The decision of the trial court to add the conspiracy charge is affirmed.
• 5 Also, defendant submits multiple convictions and concurrent sentences are inappropriate in this case. The supreme court, in People v. King (1977), 66 Ill.2d 551, 566, reviewed the issues which arise when a defendant is subject to multiple convictions and concurrent sentences and held that "[p]rejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses * * * `Act' * * * is intended to mean any overt or outward manifestation which will support a different offense." If we find there was but one act, then multiple convictions are inappropriate. If we determine there were several acts, then multiple offenses may be appropriate, unless one of the offenses is an included offense of the other. A lesser included offense is one comprised of some, but not every element, of the greater offense. The greater offense will include very element of the lesser offense plus some other elements so that it becomes impossible to perform the greater offense without committing the lesser one. Ill. Rev. Stat. 1981, ch. 38, par. 2-9.
The facts of this case permit us to find there were multiple "acts" in the sequence of events which resulted in the death of Mr. Nellums. The conspiracy arose before the shooting, at the time the defendant and Darlene planned the killing and prepared the gun and the scene of the crime. The acts which established the conspiracy also laid the basis for the defendant's accountability. The defendant became accountable when Darlene shot her stepfather — the shooting was the act which transformed the defendant's liability from only conspiracy to commit murder to accountability for the killing (the jury later finding the killing was manslaughter).
• 6 The question, then, is whether a defendant can be convicted of both conspiracy to commit murder and manslaughter by accountability for separate actions occurring ...