The opinion of the court was delivered by: Justice Kilbride
Docket No. 96879-Agenda 6-September 2004.
Defendant, Damaris Cuadrado, was convicted in the circuit court of Cook County for solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2002)). She appealed, and the appellate court held, inter alia: (1) when a challenge to the sufficiency of an indictment is raised during trial, after the close of the State's case and denial of a defendant's motion for a directed verdict, an indictment will stand if it is specific enough to apprise the defendant to allow preparation of a defense; (2) the State's substitution of the word "procured" for the word "solicited" in the indictment did not impede defendant's ability to prepare a defense; (3) the evidence was sufficient to support a conviction; and (4) defendant was not deprived of the right to confront a State's witness. 341 Ill. App. 3d 703. We allowed defendant's petition for leave to appeal (177 Ill. 2d R. 315(a)) and now affirm the appellate court's judgment.
Defendant was indicted for solicitation of murder for hire because, with the requisite intent, she allegedly solicited Benjamin Jimenez to commit first degree murder for money. The evidence at trial showed defendant offered to pay Jimenez $10,000 to murder her husband. Jimenez told defendant he would look into it, and the two agreed to meet again. Jimenez recorded their second meeting and asked for confirmation that defendant wanted her husband killed, not just beaten. Defendant replied she wanted her husband "gone" and "out of the picture." Jimenez told her he had not found anyone to commit the murder, but he would continue to look.
At a later meeting, defendant inquired whether Jimenez had found anyone to kill her husband. Jimenez said he had not. Sometime later, defendant paged Jimenez and told him she no longer needed his services because she had someone else murder her husband. At that point, Jimenez told defendant he had recorded their previous conversation and would give the tape to the police unless she paid him some money. Defendant responded that she needed some time to get the money. Eventually, defendant paid Jimenez a total of $4,000, and then told him she would meet him one more time to give him another payment.
Subsequently, defendant arranged to have her boyfriend, Darryl Mitchell, shoot Jimenez. As a result of that attack, Jimenez was paralyzed and remains in a wheelchair. After being shot, Jimenez initially maintained he had been injured by members of a street gang. Jimenez later identified the shooter as Mitchell from a photo array and from a lineup.
At trial, Jimenez's mother, Teresa, testified she called police at her son's request. Jimenez had stated to her that defendant had arranged his shooting and he wanted to prevent her from "getting away with this." Teresa testified she had listened to the conversation taped by her son but at that time did not recognize the female voice on the tape. Later, after the police became involved and Teresa participated in a confidential overhear of a telephone call between Jimenez and defendant, Teresa identified defendant's voice as the one on the tape. Additionally, Teresa overheard defendant being questioned at the police station and again identified defendant's voice as the one on the tape and in the confidential overhear.
Defendant was convicted and appealed, raising three main claims: (1) the sufficiency of the indictment; (2) the sufficiency of the evidence; and (3) a violation of her constitutional right to confront the witnesses against her. The appellate court affirmed. 341 Ill. App. 3d 703.
The appellate court held that defendant was not prejudiced by the State's substitution of the word "solicit" for the word "procure" in the indictment. 341 Ill. App. 3d at 714. The court also determined that sufficient evidence existed for a rational trier of fact to find that defendant "procured" Jimenez to commit first degree murder pursuant to an agreement for money. 341 Ill. App. 3d at 716. Finally, the court held that defendant's constitutional right to confrontation was not violated by her inability to see the entire face of witness Jimenez due to the placement of his wheelchair in the courtroom. 341 Ill. App. 3d at 717. We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315(a).
Before this court, defendant renews her challenges to: (1) the sufficiency of the indictment; (2) the jury instructions substituting the word "solicit" for the word "procure"; (3) the positioning of Jimenez's wheelchair at trial; and (4) the admission of Teresa Jimenez's hearsay testimony because it denied defendant's rights to due process, a fair trial, and to confront the witnesses against her. Although raised in the appellate court, defendant has not challenged the sufficiency of the evidence in this appeal.
A. Sufficiency of the Indictment
The primary issue in this appeal is whether the trial court erred by refusing to dismiss the indictment because it failed to allege an element of the crime, namely, procurement of an individual to commit murder. The relevant statutory provision states:
"Solicitation of Murder for Hire. (a) A person commits solicitation of murder for hire when, with the intent that the offense of first degree murder be committed, he procures another to commit that offense pursuant to any contract, agreement, understanding, command or request for money ...