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People v. Moss

October 18, 2001


The opinion of the court was delivered by: Justice Garman


Docket No. 87134-Agenda 4-March 2001.

Following a jury trial in the circuit court of Cook County, defendant was convicted on two counts of first degree murder for the deaths of his ex-girlfriend, Emma Renee Jones (Renee), and her 11-year-old daughter, Diandra Jones. The same jury found defendant eligible for the death penalty and found no mitigating factors sufficient to preclude its imposition. The circuit court sentenced defendant to death. Defendant appeals his convictions and death sentence directly to this court. 134 Ill. 2d R. 603. For the reasons that follow, we affirm the judgment of the circuit court.


The murders of Diandra and Renee occurred in November 1991, while defendant was incarcerated and awaiting trial on charges that he sexually assaulted Diandra. Subsequent to the murders, the State proceeded to trial on the alleged sexual assault. Defendant was convicted of aggravated criminal sexual assault and sentenced to 60 years' imprisonment. In connection with the murders, defendant was initially charged with four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(1), (a)(2)), two counts of conspiracy to commit first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-2(a)), two counts of solicitation of murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-1.1(a)), and one count of intimidation (Ill. Rev. Stat. 1991, ch. 38, pars. 12-6(a)(1), (a)(3)). The State nol-prossed all charges except those for first degree murder. Defendant's mother, Sandra Major, his aunt, Danita Best, and his sister, Kerrie Major, were also charged with the murders. Sandra died of natural causes while awaiting trial. Danita pled guilty to first degree murder and agreed to testify against defendant in exchange for a sentence of natural life. Kerrie was found guilty after a bench trial and received a sentence of natural life.

At defendant's murder trial, his sister, Orvette Davis, testified that defendant telephoned her collect several times while he was incarcerated during the fall of 1991. In a September 1991 conversation, defendant asked her to "get rid of" Diandra and Renee because he did not want them to testify at his upcoming sexual assault trial. He did not want to "get the boot," meaning the electric chair. Defendant made the same request in October 1991, which Orvette understood as a request to kill Diandra and Renee. Orvette refused to help her brother. She told Danita Best about defendant's first request.

Danita Best testified that she was also charged with the murders of Diandra and Renee. She pleaded guilty and agreed to testify against defendant in exchange for a sentence of natural life. Danita had approximately 15 telephone conversations with defendant from August to November 1991. Danita accepted defendant's collect phone calls in Sandra Major's apartment, where Danita lived at the time. During their first conversation in August 1991, defendant told Danita that he wanted her to help Sandra "get rid of" Diandra and Renee so they could not testify against him. Danita understood this to mean that defendant wanted them killed. She told defendant that she could not help him because she was on parole after a conviction for voluntary manslaughter and theft. Defendant threatened that if she did not, the same thing that had happened to one of his girlfriends would happen to her. Danita thought he was referring to a woman named Cora whom defendant had beaten on the head with a hammer. Danita believed that she needed to do as she was told or something would happen to her. In the past, defendant had attempted to throw her out of a ninth-floor window. However, she testified that she did not decide to participate in the murders until the day they occurred. Defendant reiterated during their remaining conversations that Danita had to help Sandra get rid of Diandra and Renee because of the upcoming trial. Danita believed that defendant's requests were serious.

Danita further testified that Diandra and Renee lived in an apartment below Sandra's. On November 22, 1991, the date of the murders, Sandra told Danita to get cocaine from her room, mix it with rat poison, and go to Renee's apartment and let her smoke the mixture. When Renee was "knocked out," they were going to kill her. Danita mixed the cocaine and poison; she then went to the store at Sandra's request to buy cigarettes, gin, and wine. Danita brought these items to Renee's apartment. Renee and her children, 13-year-old Matthew, 11-year-old Diandra, and 2-year-old Troy, were in the apartment. Later in the evening, Matthew left to go to a friend's house. Renee attempted to smoke the cocaine but it would not burn. Danita returned to her apartment where Sandra gave her more cocaine that was not laced with rat poison. Back in Renee's apartment, Danita and Renee began drinking and smoking the cocaine. In time, Sandra and Kerrie Major joined them.

When the cocaine ran out, Kerrie and Renee left the apartment to buy more. Once they left, at Sandra's instruction, Danita retrieved a knife from the kitchen, went to the couch where Diandra was sleeping, and stabbed her in the chest, neck, and upper face several times until she was dead. Sandra stood over Danita and told her to make sure that Diandra was dead. When Renee and Kerrie returned, Renee did not realize that Diandra was dead because her body had been covered with a blanket to make it appear as though she was still sleeping. Shortly thereafter, Sandra gestured to Danita that it was time to kill Renee. Sandra and Kerrie wrapped a cord from an iron around Renee's neck and began choking her. Danita started stabbing Renee in the upper part of her chest, and in her throat and face. Danita stated that she stabbed Renee "[t]hirty, forty, a lot of times." Renee pleaded with Sandra that she would not testify, but Sandra told her it was too late. Kerrie then broke a wine bottle over Renee's face and began stabbing her with it and with a screwdriver.

According to Danita, although Renee's youngest son, Troy, was in the apartment at the time of the murders, his life was spared because Sandra thought he was defendant's son and her grandson. After Renee was dead, Sandra told Kerrie and Danita to gather up the bottles, glass, and sheets. Sandra left the apartment and returned shortly with her husband, James Patterson. At some point, defendant's sister Cecelia joined them. Sandra told Cecelia to take the glass and knives to her apartment. The bodies were loaded into Patterson's car; then Sandra, Patterson, Danita, Kerrie, and Cecelia drove to an empty lot and discarded the bodies. They left Troy next to a garbage can in an alley near a hospital. On their way home, they stopped to buy gin and cigarettes.

Upon returning to her apartment, Sandra instructed her daughter Rosaline to take their clothes to the laundromat. The day after the murders, Sandra told Danita to stay at Patterson's house for a while because Matthew could place her at the crime scene on the day of the murders. Danita complied. About one week later, Danita flagged down a police officer on the street and told him that she had witnessed a murder. In her testimony, Danita acknowledged that she first lied to the police about her involvement in the murders but stated that she eventually confessed.

On cross-examination, Danita admitted that she made numerous false statements to the police regarding the events of November 22, 1991. In several statements, Danita told the police that she did not take part in the murders and fabricated several persons that were involved. Later, in a written statement, Danita admitted that she was involved in the crime but minimized her level of participation. Ultimately, she acknowledged to the police the extent of her involvement and implicated defendant for the first time in a court-reported statement. The defense attorney further elicited that Danita had been smoking cocaine for three days prior to the murders and that she believed her life depended on whether her testimony made "the prosecutors happy."

Eliza Warner, Renee's mother, testified that on the morning of November 23, 1991, she tried to telephone her daughter. When no one answered, she went to her daughter's apartment. She entered the apartment with her key and noticed that all the windows were open and the television was on but no one was home. In the back bedroom, she discovered blood on the floor, the walls, draperies, and clothing. She also found a bloody screwdriver. Eliza left the apartment and went to a neighbor's apartment to call the police.

Matthew Warner testified that on the evening of November 22, 1991, he left his mother's apartment around 10 p.m. to spend the night at a friend's house. Danita Best had been at the apartment on that day. The following morning, Matthew had been expecting a phone call from his mother to let him know when to return home. When she did not call, Matthew went home and learned that his mother and sister were missing.

Daniel Pierce testified that on the morning of November 23, 1991, he heard a car stop abruptly by the window of his apartment. The car door opened and he heard some rumbling near a garbage can outside the window. The car then sped away. Pierce heard whimpering and crying outside the window. He went outside and found a baby boy later identified as Troy Jones.

Detective Guy Habiak testified that on the morning after the murders, he was called to Renee's apartment to investigate a missing persons incident. Upon entering the apartment, he observed a large amount of blood on the couch, a trail of blood leading to a bedroom, and blood spattering on the walls, drapes, and mattress covers. He also noticed a broken bottle and a bloody screwdriver. The following day, he was called to a location where two bodies were found. The bodies were later identified as Renee and Diandra. Habiak also learned during his investigation that a child was discovered in an alley the day after the murder.

Habiak further testified that he personally interviewed Danita three times. Danita gave several statements to investigators, including a handwritten statement. She later admitted that parts of her statements were untrue. Danita gave a court-reported statement on December 6, 1991. Subsequent to this statement, Danita was charged with two counts of first degree murder.

Dr. Edmond Donoghue testified that he performed an autopsy on Diandra and Renee. Donoghue noted that there were over 74 evidences of injury on Renee's body, including 29 stab wounds to the face and 10 stab wounds to the chest that were deep and entered body cavities or involved vital organs. Diandra's body contained 22 evidences of injury.

The State entered into evidence the telephone records of Orvette Davis and Sandra Major. Both records contained several collect telephone calls from the Cook County jail from August to November 1991.

The only evidence presented by the defense was the autopsy protocol for the body of Fred Herndon, Jr., who was killed by Danita in 1996. The report showed that the body had suffered 30 stab wounds.

The jury found defendant guilty of the first degree murders of Diandra and Renee Jones. At the first stage of defendant's sentencing hearing, the jury considered the evidence presented at trial. In addition, the State presented evidence that defendant's date of birth was August 10, 1966, and Diandra's date of birth was February 21, 1980. The jury returned three separate eligibility verdicts. The jury found defendant eligible for the death penalty based on the statutory aggravating factors of multiple murder, brutal and heinous murder of a child under 12, and murder to prevent an individual from testifying in a criminal prosecution. Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(b)(3), (b)(7), (b)(8).

At the second stage of sentencing, the State presented evidence of defendant's criminal history. This included evidence that defendant had been adjudicated delinquent for the offense of robbery in 1982 and was sentenced to the Department of Corrections. In 1985, defendant was convicted of battery and received supervision. In August 1985, defendant was arrested for aggravated arson but was released. In January 1986, he was again convicted of battery and served two days in the Cook County Department of Corrections. Additionally, he was arrested in May 1986 for threatening to kill his girlfriend, Magnolia Williams, and threatening to set her apartment on fire.

The State presented the testimony of Alvina Anderson. On April 30, 1987, while outside her house, defendant came up to Anderson, put a knife to her back, and told her that if she moved he would kill her. Defendant took Anderson up the street and in between two buildings. There he beat and raped her. Defendant threatened that if she told anyone, he would kill her and her mother, father, and sister. He then raped Anderson again. She was 15 at the time. After he was finished, defendant robbed her of $1.50. Defendant plead guilty to aggravated criminal sexual assault and armed robbery. He was sentenced to six years' imprisonment.

Magnolia Williams was unavailable to testify at defendant's sentencing hearing. The State, however, read into the record her testimony from defendant's 1992 aggravated criminal sexual assault sentencing hearing. There, Williams testified that she had a relationship with defendant for eight years. In 1987, after defendant learned that Williams wanted to end the relationship, he butted her in the face with his head, took a sharpened screwdriver, and stabbed her in the arm three times and once in the chest. Williams further testified that, during their relationship, defendant "brutally beat" her. She remained in the relationship because there "was no way out." Defendant was convicted of aggravated battery and was sentenced to five years' imprisonment to be served consecutively to the six-year sentence already imposed for the aggravated criminal sexual assault and armed robbery of Alvina Anderson.

The State presented further evidence that, while defendant was incarcerated from 1988 to 1990, he received 25 disciplinary tickets. These included tickets for insolence, intimidation, and threats. During his incarceration from 1992 to 1994, defendant received 19 disciplinary tickets, including tickets for assault. Defendant was charged with bribery and extortion while in prison. In addition, during a routine search of his cell, officers found a homemade knife. As a result, defendant was charged with possession of dangerous contraband.

Rosaline Major, defendant's sister, testified that when she was seven or eight, defendant began fondling her and repeatedly forced her to have sex. Defendant threatened to hurt her if she told anyone. Rosaline further testified that defendant was physically abusive to her. The sexual abuse ended when Rosaline was 14 after she told her mother who, in response, put defendant out of the house "for a couple of hours."

Orvette Davis testified that when she was 12 years old, defendant held a fork to her neck, threatened to kill her, and then raped her. At the time of the rape, her sisters were in the apartment. Orvette did not tell her sisters about the rape because "they already knew what was happening." Defendant raped her again when she was 14. Orvette told her mother about the incident, but Sandra said nothing. Later, when Orvette asked her mother why she did not do anything, her mother responded that "[defendant] just got a little problem."

Cecelia Major testified that, during her childhood, defendant repeatedly raped her at gunpoint or knifepoint and threatened to kill her if she told anyone. She eventually told her mother about the rape, but her mother did nothing. Cecelia further testified that she had witnessed defendant hit Magnolia Williams in the head with a bed rail and, on another occasion, stab Williams with an ice pick. Cecelia also witnessed defendant beat and push a man named Booker Singleton through a ninth-story window and threaten to drop him.

In conclusion, the State entered into evidence a certified copy of defendant's conviction and sentence for the aggravated criminal sexual assault of Diandra Jones, and presented the victim impact statements of Doyle Warner, Renee's brother, Eliza Warner, and Matthew Warner.

In mitigation, defendant presented the testimony of Sarah Hodges, the sister of Magnolia Williams. She stated that defendant had voluntarily agreed to terminate his parental rights to his two children.

Dr. Daniel Hardy, a psychiatrist, testified for the defense that he had diagnosed defendant with schizo-affective disorder of the bipolar type that is aggravated or caused by a history of brain injury. This disorder is comprised of paranoia and bipolar mood disorder. Tests revealed that defendant had frontal and temporal lobe abnormalities in his brain. The frontal and temporal lobes govern judgment and impulse control respectively. Hardy opined that defendant has suffered for many years from a significant condition that has resulted in extreme emotional and mental disturbance.

Dr. Jonathan Pincus was qualified as an expert in neurology. Pincus interviewed defendant and reviewed various records and reports regarding defendant's condition. He testified that defendant was psychotic and exhibited signs of paranoia and delusional behavior. A physical examination revealed that defendant had frontal lobe abnormalities.

The jury found no mitigating factors sufficient to preclude the imposition of the death penalty, and the circuit court sentenced defendant to death based on his first degree murder convictions. Defendant's death sentence was stayed by this court pending direct review. 134 Ill. 2d R. 609(a).


I. Trial

Prior to defendant's trial, the State filed a motion "to allow proof of other crimes evidence." This motion sought to introduce certain evidence of the December 2, 1990, sexual assault of Diandra to establish defendant's motive in ordering his family to kill Diandra and Renee. Over defendant's objection, the circuit court granted the motion. Subsequently, defendant filed a motion in limine to bar as hearsay out-of-court statements made by Diandra regarding the alleged sexual assault. The State had indicated that it would introduce Diandra's statements through the testimony of four witnesses. The circuit court rejected defendant's motion.

The State introduced the following evidence regarding the alleged sexual assault at defendant's murder trial.

Matthew Warner testified that on the afternoon of December 2, 1990, he was at home baby-sitting his younger brother and sister while his mother was at a neighbor's apartment. Around 12 p.m., defendant came by the apartment to sleep off a hangover. Later on, defendant asked Matthew to do some push-ups and told Matthew to change his clothes so he could do the exercises better. Matthew went to his bedroom to change; when he returned to the living room, he noticed that Diandra was "abnormally quiet" and did not want to be near defendant. Diandra asked defendant to leave several times. Defendant replied that he would leave if Diandra would get his jacket and cigarette lighter from the back room. Diandra tried to find the items without success. Defendant told her to try again, and this time "really look." When Diandra was again searching for the items, defendant announced that he would get his own things. About 20 minutes later, Diandra came running from the back of the apartment with defendant chasing her. Matthew testified that Diandra was hysterical and scared; she was screaming for defendant to leave her alone. Diandra ran to the front door but defendant put one foot against the bottom of the door and one hand against the door. Diandra started screaming for her mother. At some point, her mother forced her way into the apartment and Diandra exclaimed that defendant had tried to have sex with her. When her mother asked her to repeat what she had said, Diandra stated: "he tried to have sex with me." Renee then told defendant to leave and subsequently called the police.

Matthew further testified that after defendant left, Diandra went to the bathroom and called out for her mother. Matthew later learned that Diandra had shown her mother some "white stuff" that she had found.

Officer Steve Martin testified that he responded to a criminal sexual assault call on December 2, 1990. He arrived at Renee's apartment and spoke directly with Diandra. She informed him that defendant took her to a back room of the apartment, removed her clothing, and threw her on a bed. Defendant then removed his clothing and had sexual intercourse with her. Diandra told Martin that she broke free and tried to get out of the apartment. She struggled with defendant at the front door and, eventually, her mother pushed open the door. Diandra immediately told her mother about what had happened. Martin testified that Diandra was shaking and scared when she spoke with him.

The physician who examined Diandra after the sexual assault, Dr. Kinga Jokay, testified that Diandra informed her that defendant had coaxed her into a room, undressed her below the waist, undressed himself, and attempted to have sex with her. Diandra stated that defendant had not placed his penis into her vagina, but he had rubbed himself on her and ejaculated. Due to this information, Jokay did not conduct an internal examination. An external examination revealed a dried white secretion, consistent with sperm, on the inner part of Diandra's thighs and external genitalia. Jokay's medical opinion was that Diandra had been sexually assaulted.

Finally, the State presented the testimony of Lieutenant Edward Griffin, who, along with another detective, interviewed Diandra at the hospital. Diandra told Griffin that, as soon as her mother left for the neighbor's apartment, defendant began to ask her questions about sex. Defendant asked her if she had "whiskers" on her vagina. He also asked if he was making her uncomfortable and if she wanted him to leave. Diandra answered yes. Defendant said he would leave if Diandra brought him his jacket and cigarette lighter from the rear bedroom. She did this and defendant followed her to the bedroom, where he forced her onto the bed, removed her clothes, and had intercourse with her. When he was finished, Diandra tried to leave the apartment but defendant stopped her. While she was struggling with defendant, Diandra's mother pushed open the door of the apartment. While Griffin was interviewing Diandra, she appeared very nervous, frightened, and apprehensive.

A. Evidence of Another Crime

We begin by addressing defendant's contention that the circuit court erred by admitting evidence of another crime. Evidence of other crimes is inadmissible if it is relevant merely to show a defendant's propensity to commit crime. People v. Kliner, 185 Ill. 2d 81, 146 (1998). However, this evidence may be properly admitted when it is relevant to prove a defendant's motive to commit the crime for which he is being tried. People v. Enis, 163 Ill. 2d 367, 388 (1994). The circuit judge must weigh the probative value of the evidence against its prejudicial effect, and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. People v. Illgen, 145 Ill. 2d 353, 365 (1991). A circuit court's ruling on the admissibility of other-crimes evidence will not be disturbed absent an abuse of discretion. Kliner, 185 Ill. 2d at 146.

Defendant acknowledges that the testimony pertaining to the alleged sexual assault was admissible to establish his motive; however, he maintains that the circuit court failed to weigh the probative value of the evidence against its prejudicial effect. He further argues that the evidence should have been limited. Motive could have been established simply by informing the jury of his conviction for aggravated criminal sexual assault or that he was awaiting trial on the sexual assault at the time of the murders. Alternatively, the court should have limited the number of witnesses on this issue as each witness established the same facts. According to defendant, this testimony prejudiced him because it focused the jury's attention on the alleged sexual assault and away from the State's evidence on his involvement in the murders. This prejudice was compounded by the use of the word "rape" throughout the trial to refer to the sexual assault.

The State responds that its theory of the case was that defendant was awaiting trial on the sexual assault charges at the time of the murder. Defendant feared that the evidence against him was sufficient to convict; therefore, he solicited his family to kill the principal witnesses against him. The State argues that the four witnesses demonstrated the strength of the State's sexual assault case and the fact that much of its case depended upon Diandra. The witnesses established the consistency of Diandra's story, her credibility as a witness, and, as such, defendant's motive to prevent her from testifying.

As stated, the admissibility of other-crimes evidence is within the discretion of the circuit court. Contrary to defendant's argument, the circuit court did weigh the probative value of this evidence against its prejudicial effect. In ruling on the State's pretrial motion to allow proof of other crimes, the court explicitly stated that the evidence would not unduly prejudice defendant. Both parties acknowledge that this evidence was relevant and probative of defendant's motive. Although motive could have been established in the way suggested by defendant, the method chosen by the State and approved by the circuit court was within the court's discretion. We agree that the testimony established the consistency of Diandra's description of the events of the sexual assault, and, with the exception of Matthew Warner, the testimony was primarily limited to this description. Also, the prejudicial effect of the evidence was minimized when the trial court properly instructed the jury as to the limited purpose of other-crimes evidence. See Illinois Pattern Jury Instructions, Criminal, No. 3.14 (3d ed. 1992). We find that the probative value of the evidence was not substantially outweighed by its prejudice. The circuit court did not abuse its discretion in admitting this evidence under the circumstances of this case.

Defendant further contends that the prejudice of the testimony was compounded by the use of the word "rape" to refer to the alleged sexual assault. The circuit court originally sustained a defense objection to the use of the word. The court apparently changed its decision after the State argued the word was admissible under section 115-11.1 of the Code of Criminal Procedure of 1963 (Code). This section provides that the use of the word "rape" "by any victim, witness, State's Attorney, defense attorney, judge or other court personnel in any prosecutions of offenses in Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended, is not inadmissible." (Emphasis added.) 725 ILCS 5/115-11.1 (West 1998). Defendant is correct that first degree murder is not one of the crimes listed in section 115-11.1; however, this fact is not dispositive. Section 115-11.1, by specifically allowing the use of the word "rape" in certain prosecutions, does not thereby limit its use in other prosecutions. We conclude that the use of this word did not result in prejudice to defendant.

B. Admission of Diandra's Statements

With respect to the testimony regarding the alleged sexual assault, defendant also argues that the circuit court erred by admitting, through this testimony, several out-of-court statements made by Diandra. In his motion in limine, defendant argued that the witnesses' statements were hearsay and were not admissible under any exception to the hearsay rule. The circuit court rejected defendant's argument and allowed the testimony pursuant to section 115-10 of the Code, which provides in relevant part:

"(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, *** including but not limited to prosecutions for violations of Sections 12-13 through 12-16 of the Criminal Code of 1961 and [various other sections] of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:


(2) testimony of an out of court statement made by such child *** describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act perpetrated upon or against a child ***." 725 ILCS 5/115-10(a)(2) (West 1996).

Here, defendant argues that the circuit court erroneously allowed this testimony pursuant to section 115-10 of the Code. Defendant maintains that section 115-10 provides an exception to the hearsay rule only in sexual assault cases; therefore, this testimony was improperly admitted at his murder trial. The State disagrees, arguing that the testimony was admissible under the section 115-10 exception and certain statements were admissible under traditional or other statutory hearsay exceptions. We need not resolve this question because we conclude that the testimony was not hearsay.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. People v. Heard, 187 Ill. 2d 36, 65 (1999). When an out-of-court statement is offered for some purpose other than to establish the truth of the matter asserted, the statement is not hearsay and is admissible. Kliner, 185 Ill. 2d at 150. As stated, the State's theory was that defendant ordered members of his family to murder the victims to prevent them from testifying at his upcoming sexual assault trial. Both Danita Best and Orvette Davis testified that defendant called them collect while he was incarcerated and either asked or told them to "get rid of" Diandra and Renee so they could not testify. As such, Diandra's out-of-court statements concerning the alleged sexual assault were not offered to prove that the sexual assault actually occurred; they were offered to prove defendant's motive. Accordingly, since Diandra's out-of-court statements were not offered to prove the truth of the matter asserted, defendant's argument that the statements were improperly admitted as hearsay must be rejected. See United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993) (testimony of out-of-court statements indicating that defendant stole from murder victims was not hearsay because it was offered to prove defendant's motive for hiring a hitman and not to prove the matters asserted in the statements); Heard, 187 Ill. 2d at 66 (testimony offered to prove defendant's motive to commit murder was not offered for the truth of the matter asserted). In addition, we reiterate that the probative value of this testimony was not substantially outweighed by its prejudicial effect.

C. Sufficiency of the Evidence

Defendant next contends that the evidence was insufficient to establish his accountability for the murders of Diandra and Renee. Defendant was convicted of first degree murder pursuant to section 5-2 of the Criminal Code of 1961 (herein Code), which provides, in pertinent part, that "[a] person is legally accountable for the conduct of another when *** [e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." Ill. Rev. Stat. 1991, ch. 38, par. 5-2(c). The State maintains that defendant's act of solicitation of murder made him legally accountable for the completed murders. According to section 8-1.1 of the Code, a person commits solicitation of murder "when, with the intent that the offense of first degree murder be committed, he commands, encourages or requests another to commit that offense." Ill. Rev. Stat. 1991, ch. 38, par. 8-1.1(a). Defendant points out that he was initially charged with solicitation of murder but that charge was nol-prossed prior to trial.

Defendant's argument can be divided into two parts. First, he maintains that section 5-2(c) of the Code requires more than the unilateral act of requesting, commanding, or encouraging another to commit a crime; it requires evidence of an agreement or an act on the part of a defendant that evidences a common plan or scheme. Second, he argues that the State failed to produce evidence of an agreement or a common scheme or plan; consequently, the State failed to prove that defendant was accountable for the murders. We understand defendant's first argument to be that solicitation within the meaning of section 5-2(c) of the Code concerning accountability differs from the type of solicitation found in section 8-1.1(a) of the Code concerning the inchoate offense of solicitation of murder. Thus, defendant is arguing that the jury could not hold him legally accountable for the murders based on the inchoate offense of solicitation of murder. Because this issue raises a legal question, our review is de novo. Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill. 2d 214, 218 (1998).

In support of his argument, defendant relies on certain language found in People v. Hairston, 46 Ill. 2d 348 (1970). In Hairston, the accused was charged with murder, attempted murder, and solicitation to commit murder. The State sought to convict the defendant of murder and attempted murder on an accountability theory based solely on the allegation that the defendant solicited another to kill the victim. Hairston, 46 Ill. 2d at 355-56. The defendant was acquitted of the murder and attempted murder charges, but he was found guilty of solicitation to commit murder. Hairston, 46 Ill. 2d at 356. On appeal to this court, the defendant maintained that, because the proof necessary to convict him of the principal crimes was identical with the proof necessary to convict him of solicitation, the verdicts were inconsistent and he was placed in double jeopardy. Hairston, 46 Ill. 2d at 357. This court rejected the defendant's argument.

In addressing the defendant's double jeopardy argument, we held that because the defendant was tried for the charges of murder, attempted murder, and solicitation of murder in a single prosecution, the defendant was not twice placed in jeopardy. Hairston, 46 Ill. 2d at 357. Following this conclusion, we explained that the proof necessary to obtain a conviction for ...

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