APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
527 N.E.2d 1071, 173 Ill. App. 3d 477, 123 Ill. Dec. 433 1988.IL.1278
Appeal from the Circuit Court of Jo Daviess County; the Hon. John W. Rapp, Jr., Judge, presiding.
JUSTICE NASH delivered the opinion of the court. DUNN and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Defendant, Patricia Barnett, was charged with attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8-4(a)); two counts of solicitation to commit murder (Ill. Rev. Stat. 1985, ch. 38, par. 8-1(a)); aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4 (c)); and three counts of forgery (Ill. Rev. Stat. 1985, ch. 38, pars. 17-3(a)(1), (a)(2)). After a jury trial, defendant was found guilty of both counts of solicitation to commit murder, acquitted of the remaining charges, and sentenced to concurrent terms of imprisonment of six and eight years. She appeals, contending that (1) the State failed to prove her guilty of solicitation beyond a reasonable doubt; (2) the jury selection procedure and erroneous jury instructions on the definition of murder, the presumption of innocence, and the State's burden of proof denied her a fair trial; (3) cumulative trial errors, her trial counsel's ineffectiveness and the prosecutor's misconduct denied her a fair trial; and (4) the trial court's erroneous belief that solicitation is a Class X felony mandating a minimum sentence of six years' imprisonment requires resentencing. We affirm defendant's convictions for solicitation, vacate the sentences, and remand for resentencing.
John "Jerry" Arachikavitz testified that he and his wife, Pamela, worked with defendant, and they all became friends. Starting in December 1984, defendant visited the Arachikavitz residence approximately three times a week, bringing food on each occasion. Defendant's and the Arachikavitz' children would play in one room while the adults talked in another room. In January 1985, when defendant came over she was frequently crying and complained about her husband, Steven Barnett, a Galena police officer, and their financial situation. Jerry testified that defendant appeared more upset each time she visited, and at the end of February 1985 while defendant and the Arachikavitzes were alone, defendant asked Jerry whether he wanted to make some money by "[knocking] off my husband." Defendant stated that she would pay Jerry $25,000 from life insurance proceeds on her husband's life but that he would have to be killed on duty because defendant would make more money. During the first week of March 1985, defendant asked Jerry whether he was going to take her up on her offer. Pamela was also present during this conversation. Jerry testified that defendant appeared serious. During subsequent visits, defendant kept bringing up the topic of killing her husband, stating that the Arachikavitzes needed the money because Jerry was not working due to a back injury. Jerry testified that, while defendant laughed after his refusals, she appeared serious and had a straight face when she broached the subject. At the end of March 1985, defendant reiterated her request to have Jerry kill her husband and Jerry testified:
"And she says that you could cut his brake lines. You could have him chase you down Highway 20 towards Elizabeth because I got a motorcycle and have him go off. Or you could just blow up the car with him and Evie in the car and kill two birds with one stone.
She says I can ride a motorcycle pretty good. If I cut his brake lines I could fly down that road because it was all curves and he could hit one of the curves and go off it.
She asked if I wanted more I could have it. And she says I'll still give you $25,000.00 if you'll do it. I said no. And then she turned around and says well, how much more do you want and we just left it at that at the moment.
She was -- she looked like she really wanted to do it. And her manner was straight face. No giggles, no nothing. It was just straight out and asked."
Jerry testified that at about April 27, 1985, defendant told the Arachikavitzes that her offer of 10% of the insurance policies still stood, and later said she would increase the payment to $50,000. Steve Barnett testified that defendant knew that she would receive $50,000 if he died on duty. During their conversations, defendant told Jerry that the place to get her husband would be where he usually takes his breaks, the Galena General Store by the Poco Station on Highway 20. Jerry stated that at first he thought defendant was joking because he couldn't believe any man's wife would want to kill him. Jerry testified that in June 1985 defendant told him that her husband was in the hospital because of poisoning but that he did not go to the police to discuss the conversations he had with defendant until about a year after Steve Barnett was hospitalized.
Pamela Arachikavitz' testimony substantially corroborated her husband's. She testified that during their conversations about killing Steve Barnett, defendant had a straight face but that she thought defendant was joking because she did not think that someone would consider killing one's husband. Pamela testified that her conversations with defendant started scaring her and that the topic of killing Steve Barnett came up 30 to 40 times.
Joan Lincoln, a friend of defendant's, testified that in April or May 1985, defendant came to her house nervous and crying, and when she asked defendant what was wrong, defendant stated that her husband thought someone was going to kill him and he suggested that defendant have his will prepared. Steve Barnett testified that in October or November 1984, he and defendant retained John Cox, an attorney, in connection with the purchase of a new house and defendant then suggested that Mr. Cox be retained to prepare their wills. The wills were not prepared at that time but in May 1985 ...