Appeal from the Circuit Court of Du Page County. No. 91-CF-22. Honorable John J. Nelligan, Judge, Presiding. Original Opinion of December 29, 1993,
Released for Publication May 21, 1996.As Corrected April 23, 1996.
Presiding Justice McLAREN delivered the opinion of the court: Hutchinson, J., concurs. Justice Doyle, dissenting:
The opinion of the court was delivered by: Mclaren
PRESIDING JUSTICE McLAREN delivered the opinion of the court:
The defendant, Charles Landwer, was charged with two counts of solicitation to commit murder for hire. Ill. Rev. Stat. 1989, ch. 38, par. 8-1.2 (now 720 ILCS 5/8-1.2 (West 1992)). At trial, he raised the affirmative defense of entrapment. Ill. Rev. Stat. 1989, ch. 38, par. 7-12 (now 720 ILCS 5/7-12 (West 1992)). On November 8, 1991, a jury found the defendant guilty of both counts. The trial judge sentenced the defendant to two concurrent terms of 20 years in prison. This court reversed the convictions and remanded the cause for a new trial finding error on two points: (1) the trial court erred by refusing to instruct the jury on the offense of solicitation to commit aggravated battery as a lesser included offense of solicitation to commit murder; and (2) the prosecution made improper remarks during closing argument which materially prejudiced the defendant. People v. Landwer, 254 Ill. App. 3d 120, 193 Ill. Dec. 273, 626 N.E.2d 306 (1993). However, our supreme court reversed this court's decision and remanded the cause for resolution of issues undecided in this court's earlier decision. People v. Landwer, 166 Ill. 2d 475, 211 Ill. Dec. 465, 655 N.E.2d 848 (1995). Accordingly, we address whether: (1) the trial court erred in refusing to answer the jury's question; and (2) the State provided sufficient evidence to find the defendant guilty of solicitation of murder for hire beyond a reasonable doubt.
The defendant, owner of an auto repair and body shop, was convicted of soliciting the murder of two of his employees, Aric Cherim and James Haliotis. The defendant was angry with Haliotis because the defendant believed that Haliotis stole tools from the auto shop and sent threatening letters to the defendant.
The defendant was angry with Cherim because Cherim spoke with a Du Page County State's Attorney investigator about the defendant's questionable "repossession" activities. Cherim's cooperation led to a 36-count indictment against the defendant for various automobile offenses. At trial in the instant case, the defendant testified that he originally wanted to have Cherim and Haliotis injured, but acquiesced to having them murdered after Robert Holguin, a Du Page County State's Attorney investigator, repeatedly prodded him.
After the defendant was arrested in connection with the alleged automobile offenses, he told Chris Bowden, who "repossessed" cars with the defendant, to keep quiet about their business. According to Bowden, on November 16, 1990, the defendant asked Bowden if he "had a problem with [Cherim] being taken out." The defendant also told Bowden that he knew where Cherim's girlfriend worked and would "get" Cherim. In addition, the defendant told Bowden that Martin Luther King "would still be alive today if [Cherim] would have just learned to keep his mouth shut." Bowden called the State's Attorney's office because he was frightened. He told Lori Chassee, a Du Page County State's Attorney investigator, that the defendant planned to kill Cherim. The defendant told Bowden that Cherim "was a dead man, just like anybody else who talked," and the defendant claimed that he had some friends "working on it, and when [Cherim] isn't looking over his shoulder, he is going to hit [Cherim]." The defendant asked Bowden to befriend Cherim so that the police would not suspect Bowden if Cherim "had an accident."
Bowden agreed to assist the State's Attorney's office in eavesdropping on his phone calls with the defendant. On December 21, Chassee secured an eavesdropping order from a Du Page County judge. The following day, Bowden placed a tape-recorded call to the defendant from the State's Attorney's office. During the conversation, the defendant stated that he knew a man named "Barbecue Jerry" who had "some friends who could help some of our friends have a change of attitude." During another tape-recorded conversation, the defendant told Bowden that "Barbecue Jerry" had "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?"
Subsequently, investigator Holguin told Bowden to discredit "Barbecue Jerry" and persuade the defendant to use Holguin who would pose as a more reliable "hit man." On December 28, 1990, Bowden and the defendant discussed Holguin in a taped-recorded conversation:
"BOWDEN: Well this [new] guy [Holguin] will probably come through, you know? Well what exactly do you want to do? This guy makes people gone, like that's what we're talking, right?
: I thought a severe beating would be sufficient because then if it ever filtered down to us.
BOWDEN: I want to track down [Cherim].
: We'd like to see seven days in the nice hospital.
BOWDEN: In the next seven days?
: No, we'd like to see them spend seven days in the hospital.
You know, a couple of broken legs is fine, something you can't you know [sic].
BOWDEN: Well, I was thinking.
: Uh, you were unless you want to have it gone that would be fine, too.
BOWDEN: Well, that's what I assumed, I mean.
: I would lose no sleep over it, would you?
: Yeah, call the guy, get the story, and then if he wants like [$500] apiece, yeah, we can do that.
BOWDEN: That's probably what he'll want.
: That's no problem, I mean, he'll get the job done.
BOWDEN: Yeah, I'm like, I'm pretty confident. I wouldn't have told you about it if I didn't think so.
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.
: All I think is that this has got to come to a grinding halt. The stories have to be stopped today."
On January 2, 1991, Bowden told the defendant in another tape-recorded conversation that his "hit man" wanted $600 for each person they wanted taken care of. The defendant reluctantly agreed to meet Holguin, after Bowden told the defendant that the "hit man" would only take the job if he met the defendant personally. Bowden, Holguin, and the defendant met later that day in the parking lot of a fast-food restaurant. During that meeting, in which Holguin was fitted with a recording device, the following conversation ensued:
"HOLGUIN: O.K. Well, I mean, what kind of an end do you want?
: Whatever you feel comfortable, you know, you know. Whatever you think ...