Appeal from the Circuit Court of Cook County; the Hon. Maurice
D. Pompey, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendants, Antonio Perez and Albert Pagliuca, were found guilty of solicitation and conspiracy to commit the murder of Ramona Rodriguez. Perez was sentenced to an extended term of 50 years for solicitation and 14 years for conspiracy. The two sentences were to run concurrently, but they were to run consecutively to the 60 year sentence Perez was serving for another felony conviction. Pagliuca was sentenced to concurrent terms of 20 years for solicitation and seven years for conspiracy. On appeal, the co-defendants together and individually raise issues regarding reasonable doubt, jury instructions, sentencing, suppression of evidence, admissibility of evidence, jury selection and prosecutorial misconduct.
Both defendants initially contend that the State failed to prove them guilty beyond a reasonable doubt of solicitation to commit murder. At trial, Kenneth Middleton testified that in early November of 1979, both he and Perez were incarcerated together in Cook County jail and that during this period of time, he had several conversations with Perez. Perez told him that if Middleton was willing to arrange to kill a witness in a case pending against Perez, that he would help with bond money for Middleton's release and that Perez would set Middleton up with a place to stay, a loaded gun, safe transport to Mexico and safekeeping once Middleton got there. Middleton then informed law enforcement officials of Perez' offer and he arranged with the State's Attorney to have a police officer pose as a "hit man" for Perez. After further discussions with Perez, Middleton reached an agreement with him wherein Middleton would provide the "hit man," as previously arranged with the State's Attorney, and Perez would supply the gun for the hit man. Middleton's testimony went on to reveal that Perez made several phone calls to co-defendant, Pagliuca, in which Perez requested Pagliuca to get a gun and deliver it to "Frankie C" (James Houtsma, who was the undercover police officer posing as the alleged hit man). Middleton testified that an additional call was made by Perez to Pagliuca to confirm the delivery of the gun. Officer Houtsma also testified for the State. He indicated that he met Pagliuca at a prearranged location and that Pagliuca handed him a paper bag containing a gun. Houtsma refused to take the bag unless Pagliuca would tell him what the gun was for and who he was supposed to "hit." Houtsma further testified that Pagliuca then cooperated with him by providing the requested information. Houtsma then took the gun and returned to the police station. During the defense's case in chief, co-defendant Pagliuca took the stand. Pagliuca admitted giving the alleged hit man, Houtsma, the gun and also admitting revealing to Houtsma the purpose for the gun and the name and general whereabouts of the intended victim.
Perez contends that he obviously did not solicit James Houtsma to commit murder because he never had any contact with Houtsma. However, Perez does not address the issue as to his solicitation of Middleton. Perez did not address this issue because Middleton was not named as the person solicited in the indictment. Although not named in the indictment, Middleton was included along with Houtsma in the jury instructions, thereby effectively amending the indictment. This was done over Perez' objection and the propriety of so doing forms the next issue on appeal. Perez asserts that he may have solicited somebody, but it certainly was not Houtsma. Pagliuca argues that regardless of his conduct he did not solicit anyone because the crime of solicitation to commit murder was completed when Perez requested Middleton to kill a witness.
The applicable statute in the instant case is set out in section 8-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8-1) and provides as follows:
"A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense."
The offense of solicitation is complete when the principal offense is commanded, encouraged or requested with the intent that it be committed. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658; People v. Harvey (1981), 95 Ill. App.3d 992, 420 N.E.2d 645; People v. McCommon (1979), 79 Ill. App.3d 853, 399 N.E.2d 224.) Also, the law is well settled that intent is a state of mind and may be inferred from the surrounding circumstances since every sane person is presumed to intend all the natural and probable consequences of his actions. People v. Koshiol (1970), 45 Ill.2d 573, 578, 262 N.E.2d 449, cert. denied (1971), 401 U.S. 978, 28 L.Ed.2d 329, 91 S.Ct. 1209.
• 1 In the instant matter, Perez clearly solicited Houtsma through Middleton to commit the offense of murder. Perez directly requested Middleton to arrange to kill a witness for him. Perez' intent that the murder be committed can be inferred from his subsequent conduct in making specific arrangements with Pagliuca to deliver the gun to Houtsma. The entire sequence of events between the co-defendants, Middleton and Houtsma must be viewed as a single transaction, one solicitation. Consequently, the evidence shows beyond a reasonable doubt that Perez solicited Houtsma and/or Middleton.
• 2 Contrary to Pagliuca's contention that solicitation was completed when Perez requested Middleton to kill a witness, the solicitation to murder Ramona Rodriguez was a continuous act of encouraging and requesting another, that is Houtsma or Middleton to commit an offense. That offense was completed under these facts by Pagliuca delivering the gun to Houtsma, the alleged hit man, and informing Houtsma of the purpose of the gun and the identity of the victim. Therefore, the offense of solicitation to murder Ramona Rodriguez was an ongoing event that clearly included Pagliuca's transaction with Houtsma.
To the extent Pagliuca alternatively argues that his conduct did not amount to solicitation, we find that Pagliuca's actions similarly follow in the statutory definition of solicitation, "to encourage another to commit an offense." When Pagliuca delivered the gun with the knowledge of its intended purpose, he "encouraged" Houtsma to commit murder. As applied in Koshiol, Pagliuca had the requisite intent as inferred from his actions and the surrounding circumstances. Accordingly, Pagliuca solicited another to commit a crime with the intent that it would be committed, and thus the trial court did not err in finding that the State met its burden of proving Pagliuca guilty beyond a reasonable doubt of solicitation to commit murder.
• 3 Both defendants contend that their constitutional rights to due process were violated because of the variance between the indictment and the jury instruction. As mentioned previously, the indictment charged the defendants with the solicitation only of Houtsma whereas the jury instruction provided that they could be found guilty of solicitation if the jury found that they solicited either Middleton or Houtsma. They both claim that they were greatly prejudiced and that this constituted reversible error.
From the outset of the trial, both defendants presented defenses that included a thorough consideration of Middleton. In opening statements, the defense introduced its characterization of Middleton as a professional criminal and a self-serving liar. During cross-examination, both defense counsel spent extensive time in developing facts that would impugn Middleton's credibility as a witness. Finally, in closing arguments, Middleton was accused by the defendants of being the principal architect in the alleged solicitation and that his account of the story was a fabrication designed to keep him from spending the rest of his life in jail. The trial transcript was replete with remarks and questions involving Kenneth Middleton.
The law in Illinois is that any variance between the offense specified in the indictment and the offense described in jury instructions does not vitiate a conviction unless the variance is of such a character as to mislead the defendants in their defense or expose them to double jeopardy. (People v. Rosochacki (1969), 41 Ill.2d 483, 244 N.E.2d 136; People v. Foster (1982), 103 Ill. App.3d 372, 431 N.E.2d 430.) The facts in the instant case reveal that the transactions involving the two co-defendants, Middleton and Houtsma, are all inextricably linked. Perez dealt directly with Middleton while in jail. Middleton informed Perez of the availability of a third-party "hit man," Houtsma, on the "outside." Finally, Perez recruited Pagliuca to provide and deliver the gun to Houtsma. Each separate act was an integral part of the solicitation to murder Ramona Rodriguez.
Due to this closeness of all the parties, the defendants could not have reasonably believed that when they were indicted for the solicitation of Houtsma that it would not also be necessary to prepare in their defense an explanation for the transactions involving Middleton. Without the knowledge that Middleton would be named in the solicitation instruction to the jury, both defendants, by their thorough treatment of Middleton at all stages of the trial, demonstrated a full awareness of the significance of Middleton in preparing their defense.
The defendants were adequately apprised of the nature of the case and were not prejudiced in the preparation of the defense by the variance between the indictment and the jury instruction. As to the issue of exposure to double jeopardy, the defendants have admitted that they were not subject to such exposure. Therefore, we will not address that issue. Accordingly, we find that the trial court did not err in giving the instruction.
• 4 Both defendants additionally contend that the trial court invoked an illegal sentence as a result of improperly classifying the crime of solicitation. The defendants' position is that the charge of solicitation to commit murder was at the time the commission of the crime occurred, an unclassified offense. Defendants further assert that any unclassified offense shall be considered for sentencing purposes a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-2.) The corresponding sentence for a Class 4 felony is not less than one year and not more than three years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(7).) Accordingly, defendants maintain that ...