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June 21, 1994


Appeal from the Circuit Court of Lee County. No. 89-CF-114. Honorable Thomas E. Hornsby, Judge, Presiding.

Petitions for Rehearing Denied July 29, 1994. Petition for Leave to Appeal Denied December 6, 1994.

PECCARELLI, Inglis, Bowman

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

The State charged defendant, John Latona, with one count each of solicitation of murder and solicitation of murder for hire (Ill. Rev. Stat. 1989, ch. 38, pars. 8-1.1(a), 8-1.2(a) (now 720 ILCS 5/8-1.1(a), 8-1.2(a) (West 1992))). These charges stemmed from defendant's allegedly requesting Randall Jordan, an undercover police officer, to kill his daughter's fiancee. Defendant raised the affirmative defense of entrapment (Ill. Rev. Stat. 1989, ch. 38, par. 7-12 (now 720 ILCS 5/7-12 (West 1992))). After a bench trial, defendant was found guilty of solicitation of murder. The trial court imposed an extended-term sentence of 40 years' imprisonment.

On appeal defendant claims that (1) the evidence demonstrates he was guilty only of solicitation of aggravated battery; (2) the trial court did not have the authority to impose an extended-term sentence for solicitation of murder; and (3) the trial court improperly considered as a factor in aggravation that his conduct threatened serious harm.

After this court reversed the circuit court's order granting defendant's motion to suppress statements and remanded the cause for further proceedings ( People v. Latona (1991), 218 Ill. App. 3d 1093, 161 Ill. Dec. 846, 579 N.E.2d 394), the trial court dismissed the count alleging solicitation of murder for hire. At the trial on the remaining count, Michael Wagers testified that he first met defendant about 15 years earlier while they were both inmates at the Menard Correctional Center. In 1989, he and defendant were inmates at the Dixon Correctional Center (Dixon). According to Wagers, defendant was very protective of his daughter, Sheila. Sometime in the spring of 1989, defendant told Wagers that he was unhappy that his daughter was dating a man named Danny Shamoon. On one occasion, defendant said to Wagers, "Man, I'd sure like to get that sand nigger killed."

Wagers testified that he was a four-star general in a Chicago street gang called the Gaylords. He told defendant that, for a price, he could arrange to have Shamoon killed. Wagers suggested having his brother contact defendant. Defendant replied that he would have to pay Wagers by giving him antique furniture.

Wagers further testified that he thought about his conversation with defendant and concluded that he did not want to get involved in a "murder rap." Accordingly, he contacted Jerry Sternes, an investigator at Dixon, and informed him about the conversation.

Wagers met with defendant again and asked defendant for information about Shamoon. Later that day, defendant handed Wagers an envelope containing addresses where Shamoon might be found. Included in the envelope was a photograph of defendant's daughter. Wagers testified that defendant gave him the photograph because defendant knew how Wagers's "people" were reckless when it came to drive-by shootings. Defendant "didn't want his daughter hit." After Wagers received this information, defendant said, "I want the son-of-a-bitch sand nigger dead."

On cross-examination, defense counsel impeached Wagers with his criminal record. Also, Wagers denied telling investigators of the Cook County public defender's office that he never had a conversation with defendant regarding performing a "hit" on Shamoon or that he did not know anyone who performs "hits."

Jerry Sternes testified that he is an investigator at Dixon. Wagers informed him that defendant wanted a civilian killed. Wagers gave Sternes the documentation which defendant provided for Wagers. One piece of paper contained a list of people named Shamoon and the addresses and telephone numbers of those people. Sternes confiscated a similar document from defendant's cell after defendant was arrested for the instant charges. Another piece of paper contained the name of one of the arcades that Danny Shamoon's family owned. The third piece of paper contained a photocopied photograph of a young woman. In response to Wagers's statements, Sternes initiated an investigation.

Randall Jordan testified that, in 1989, he was a special agent for the Illinois State police. His supervisor assigned him to the investigation of defendant. This investigation entailed Jordan posing as Wagers' brother. On May 12, 1989, Jordan obtained an eavesdropping order from a Lee County Judge. Defendant was the target of the eavesdrop. Jordan tape-recorded three conversations he had with defendant. All of the recordings were entered into evidence and played in open court.

On May 16, Jordan entered Dixon wearing an electronic surveillance device. He proceeded to the visitors' center, where he met defendant. A transcript of the conversation was made from the recording and was entered into evidence. During the conversation, defendant explained to Jordan why he was upset that his daughter was planning to marry Shamoon. During this explanation, defendant stated "* * * he's just got to go. I wouldn't give a f/--* * * if he spends six months in the hospital."

When defendant finished his story, Jordan asked, "All right. What do you want from me?" Defendant replied:

"Just * * * deal out Justice. Your Justice will be my Justice. Put the fear of God in him, put him in the hospital, break his legs, whatever you do is just. Your Justice will be my Justice. If you gotta make him see his maker, so be it. So be it, as he has put a thorn in my side, so shall I be a thorn in his side."

Later in the conversation, the following colloquy ensued:

"JL [Defendant]: I mean that's just basically it, you know, that * * * he's got her so intertwined that she can't see two inches in front of her. Maybe if he has an accident, maybe she'll see the light. Maybe he'll see the light and stay with his own, and go look for his own. * * *

RJ [Jordan]: What if he comes up dead?

JL: That's too bad. Think I'll say a prayer for him in my sleep.

RJ: You're willing to live with that?

JL: And then some. I read the paper every day. (Inaudible) too bad. Its too bad.

RJ: The only thing I'm concerned about is what happens if, as a result of this situation, that he comes up dead. That's not going to bother you?

JL: No. No. I'll shed a tear for, for--

RJ: Yea, I see you got a couple up there.

JL: Yea. I will shed a tear. I'll probably go to bed that night and kneel and say well, he was a good ole' boy, but the city's loaded with dangerous people. It's a shame.

RJ: And if you mail me a thousand dollars and instructions on how to get the other fifteen hundred after it's done, he comes up dead ...

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