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05/18/95 PEOPLE STATE ILLINOIS v. CHARLES LANDWER

May 18, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
CHARLES LANDWER, APPELLEE.



The Honorable Justice Nickels delivered the opinion of the court: Chief Justice Bilandic, dissenting: Justice McMORROW joins in the this dissent.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendant, Charles Landwer, was convicted of two counts of solicitation of murder for hire in a jury trial in Du Page County. (720 ILCS 5/8-1.2 (West 1992).) He was sentenced to two consecutive terms of 20 years' imprisonment. The appellate court reversed defendant's convictions, finding error on two points. (254 Ill. App. 3d 120. 626 N.E.2d 306, 193 Ill. Dec. 273.) First, the appellate court found that defendant was entitled to have the jury instructed concerning solicitation to commit aggravated battery, as a lesser included offense of solicitation to commit murder. Second, the appellate court found that the prosecutor misstated the law during closing arguments. We granted the State's petition for leave to appeal. (145 Ill. 2d R. 315(a).) For reasons that follow, we reverse.

BACKGROUND

Defendant owned an automobile repair business. Defendant was convicted of soliciting the murder of two of his former employees, Aric Cherim and James Haliotis. As part of his duties, Cherim assisted the defendant in "repossessing" cars. Cherim became convinced that the repossessions were actually thefts and reported the activities to the Du Page County State's Attorney's office. The Du Page County State's Attorney's office conducted an investigation that culminated in a 36-count indictment charging the defendant with various automobile offenses.

Upon learning that Cherim had spoken to the State's Attorney's office, defendant testified, he decided to attempt to silence Cherim in order to prevent his further cooperation with the investigation. Also at this time, defendant apparently became angry with Haliotis for allegedly stealing tools from defendant's shop and sending defendant threatening letters. Defendant admitted that he talked with a man known as "Barbecue Jerry" about securing someone to frighten or injure Cherim.

The State's Attorney's office became aware of defendant's plans from Chris Bowden. Chris Bowden also worked with defendant repossessing cars. Bowden testified that after defendant was arrested in connection with the car thefts, defendant asked Bowden whether he "had a problem with Aric [Cherim] being taken out." At that time, Bowden told defendant that he did not want to talk about the subject. Further, Bowden testified that several days later defendant again brought up Cherim and expressed his intention to "get him." As a result of these and other comments, Bowden became frightened and contacted the Du Page County State's Attorney's office.

Defendant continued to make threats concerning Cherim in Bowden's presence. Bowden testified that defendant told him that Cherim "was a dead man, just like anybody else who talks." Defendant told Bowden that he had some friends "working on it, and when Aric isn't looking over his shoulder, he is going to hit him." Defendant further asked Bowden to befriend Cherim so that the police would not suspect Bowden if Cherim "had an accident." Bowden subsequently consented to assist in eavesdropping of phone calls with the defendant.

Lori Chassee from the Du Page County State's Attorney's office secured an eavesdropping order. Chassee then assisted Bowden in tape recording a series of telephone calls that Bowden made to defendant. During an initial tape-recorded conversation, defendant referred to a man known as "Barbecue Jerry" who had "some friends who could help some friends have a change ofattitude." In a subsequent tape-recorded conversation, defendant again referenced Barbecue Jerry and stated:

"LANDWER: Well, he's got some people who are going to, you know, turn -- change people's mind, you know, did you ever steal a cookie when you were small and your mother slapped your hand?

BOWDEN: Right.

LANDWER: Well, that's exactly what's gonna happen."

After these initial conversations, Bowden was instructed to discredit Barbecue Jerry and attempt to convince defendant to hire Robert Holguin, an investigator with the De Kalb police department, as his "hit man." Bowden then had the following conversation with defendant concerning Holguin:

"LANDWER: Ask [Jerry] when he's gonna do it and you and me will be at the church with the nuns, praying.

BOWDEN: Right, but here's the thing, Chuck, but I think Jerry will fuck this thing up. You know like he is a fucking bum. Like my ass is on the line with this, too, you know? I got like a concern.

LANDWER: Well do you have someone better? Yeah, our concern is to, as they say, shut the radio off as soon as possible.

BOWDEN: Well, you know, yeah, I guess, I do, you know what I mean, if I'm gonna, if this is gonna happen, you know, I know this dude like who I trust a lot more in getting the job done a hell of a lot more than Jerry.

LANDWER: O.k. What kind of dollar figure?

BOWDEN: I don't know. He is a bad ass, like he ain't gonna come cheap, like he is an enforcer for the 'Kings,' you know, he like collects debts on gambling and shit and ***

LANDWER: You see, Jerry knows somebody who will take a baby out of a stroller and smash it on the ground for $100.00, you know what I'm saying?

BOWDEN: Well this guy [Holguin] will probably come through, you know? Well what do you want to do? This guy makes people gone, like that's what we're talking, right?

LANDWER: I thought a severe beating would be sufficient because then if it ever filtered down to us.

BOWDEN: I want to track down Aric.

LANDWER: We'd like to see seven days in the nice hospital.

BOWDEN: In the next seven days?

LANDWER: No, we'd like to see them spend seven days in the hospital.

BOWDEN: Oh, O.K., I see.

LANDWER: You know a couple of broken legs is fine, something you can't you know [sic].

BOWDEN: Well, I was thinking.

LANDWER: Uh, you were unless you want to have it gone, that would be fine, too.

BOWDEN: Well, that's what I assumed, I mean.

LANDWER: I would lose no sleep over it, would you?

BOWDEN: No, no.

LANDWER: Yeah, call the guy, get the story, and then if he wants like a nickel [$500] apiece, yeah, we can do that.

BOWDEN: That's probably what he'll want.

LANDWER: That's no problem, I mean, he'll get the job done.

BOWDEN: Yeah, I'm like pretty confident. I wouldn't have told you about it if I didn't think so.

LANDWER: Gone might be better.

BOWDEN: What's that?

LANDWER: Gone might be good.

BOWDEN: Well, that's kind of like what this guy does, I mean, that's what I, you know, mean that's my motivation for getting him.

LANDWER: All I think is that this has got to come to a grinding halt. The stories have to be stopped today."

Bowden subsequently called defendant to make arrangements for defendant to meet Holguin and give him the money. The defendant reluctantly agreed to the meeting, after Bowden explained that Holguin would only take the job if defendant met him personally. Holguin, wearing a wire, met the defendant at a fast-food restaurant and the following conversation ensued:

"HOLGUIN: O.K. Well, I mean, what kind of an end do you want?

LANDWER: Whatever you feel comfortable, you know, you know. Whatever you think is a *** (inaudible).

HOLGUIN: Well, you know. I'll tell you. You're paying for it man, I mean, you're the one, I mean, this guy's gonna be pissed off cause, you know, you bang him up a little. Is he gonna, is it gonna piss him off more, I mean, what do you want?

LANDWER: I don't know.

HOLGUIN: What do you want, I mean.

LANDWER: What do you think, Chris? What do you think? Put an end to this problem once and for all?

BOWDEN: I thought that was your understanding. You know, that's kind of what I led him to believe.

LANDWER: That's fine.

***

HOLGUIN: O.K. The problem is, what do you want ...


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