No. 3-01-0778

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE McDADE delivered the opinion of the court:

Following a jury trial on charges of conspiracy to commitfirst degree murder, attempted murder, and home invasion, TiffanyHopp was found guilty of conspiracy. On appeal, the defendantargues that the jury was improperly instructed with regard to theconspiracy charge and that the trial court erred by refusing tosubmit a nonpattern instruction to the jury. We affirm in partand reverse and remand in part.

FACTS 

In the early morning of December 20, 2000, Josh Sparrowstruck James Hopp on the head with a fireplace poker while he layasleep on his couch. The blow woke Mr. Hopp, and he called thepolice as his attacker fled. On their way home, Josh and hisaccomplice, Matthew Horton, were stopped for being out aftercurfew by a police officer responding to Hopp's call. When theofficer arrived at the Hopp residence with Josh and Matt in hiscruiser, Hopp identified Sparrow as his attacker.

The assault on Hopp was the culmination of a plan developedby Josh Sparrow and his friend Matt Horton. At the time, Josh wasthe 16-year-old boyfriend of Tiffany Hopp, the defendant, who wasJames Hopp's 27-year-old estranged wife. Matt was Josh's bestfriend.

Matthew Horton testified on behalf of the State, in exchangefor being charged as a juvenile. He stated at trial that in thetwo months leading up to the attack, he, Josh, and Tiffany haddiscussed ways to kill James Hopp. Josh Sparrow, also testifyingin exchange for a juvenile adjudication, stated that the threehad engaged in approximately 30 to 40 discussions about killingJames.

Both Matt and Josh testified that Tiffany promised Matt acar if he would help with the murder and that she told them thatshe might be the beneficiary of James's life insurance policy. Josh testified that the conspirators decided that Tiffany'schildren, who were in James's custody, should not be home for themurder, so the date for the attack was set for a weekend whenTiffany was to take her children to visit their grandmother inCalifornia.

After her arrest, Tiffany made a videotaped statement to thepolice. The tape was played to the jury during the presentationof the State's case. In it, Tiffany claimed that she knew aboutJosh and Matt's plans to kill her husband but that she neveragreed to them. Rather, she claimed that she tried to discouragethem by pointing out flaws in their various schemes. She alsostated in the videotaped statement that she was afraid that ifshe told Josh not to kill her husband, he would leave her.

The defendant was acquitted on counts of attempt to commitfirst degree murder and home invasion, but she was found guiltyof conspiracy to commit first degree murder. She was thensentenced to a term of seven years in prison. She now appeals ontwo grounds. First, she contends that the trial court committedplain error when it did not, sua sponte, give the jury aninstruction on the definition of first degree murder. Second, sheclaims the trial court erred when it refused to submit anadditional nonpattern instruction relating to the crime ofconspiracy.ANALYSIS

• The Failure to Submit Jury Instruction on theDefinition of First Degree Murder

Appellant argues that it was error for the trial court notto submit an instruction on the definition of first degree murderwhen it instructed the jury on the definition of conspiracy tocommit first degree murder. Specifically, appellant complainsthat the jury was not instructed that it was required to findthat she possessed the specific intent to kill her husband beforeit could find her guilty of conspiracy to commit first degreemurder. The trial court's failure to submit a jury instructionthat was not tendered by the objecting party should be reviewedfor plain error. 177 Ill. 2d R. 451(c); People v. Huckstead, 91Ill. 2d 536, 543-44, 440 N.E.2d 1248, 1251 (1982).

Ordinarily, a party waives the right to appeal the failureof the court to tender an instruction if the party did not submitthe instruction itself. 155 Ill. 2d R. 366 (b)(1)(i); People v.Huckstead, 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251 (1982).However, an exception to this rule exists in cases where thefailure creates a substantial defect and the interests of justicerequire review. 177 Ill. 2d R. 451(c). Review under the exceptionis appropriate when the failure to instruct creates an error ofsuch magnitude that it deprives the defendant of a substantialright or where the evidence is so closely balanced thatfundamental fairness requires that the jury be properlyinstructed. People v. Hernandez, 267 Ill. App. 3d 429, 436, 644N.E.2d 769, 775 (1994). The waiver exception is "'applicable onlyto serious errors which severely threaten the fundamentalfairness of the defendant's trial'." Huckstead, 91 Ill. 2d at547, 440 N.E.2d at 1253, quoting People v. Roberts, 75 Ill. 2d 1,15 (1979).

As support for her argument that it was error to refuse theinstruction, appellant cites the Committee Note to IllinoisPattern Jury Instructions, Criminal, No. 6.03 (4th ed. 2000)(hereinafter IPI Criminal 4th) and People v. Trinkle, 68 Ill. 2d198, 369 N.E.2d 888 (1977) and People v. Harris , 72 Ill. 2d 16,337 N.E.2d 28 (1978), two cases that discuss the need forinstructions defining the object offense in cases of attempt.

There are two instructions that were required on theconspiracy charge -- IPI Criminal 4th Nos. 6.03 and 6.04. TheCommittee Note to IPI Criminal 4th No.6.03 states:

"The court must also give an instruction thatdefines the offense that is the alleged subject of theconspiracy. For example, if a defendant is chargedwith conspiracy to commit first degree murder,Instruction 7.01A [now 7.01] defining first degreemurder would be given following this instruction, butInstruction 7.02A listing the issues in a first degreemurder prosecution would not be given unless thedefendant was also charged with the substantive offenseof first degree murder." (Emphasis added.)

The dissent downplays the significance of the committeenotes, but they carry substantial weight. The instructions andthe notes are prepared by a committee appointed by the supremecourt and to which one supreme court justice serves as liaison. When the instructions and notes are approved, courts are directedby Supreme Court Rule 451 (177 Ill. 2d R. 451) to use the IPIcriminal instructions when the facts of the case so warrant. TheUser's Guide to IPI Criminal states: "If a Committee Noteindicates to give another instruction, that is a mandatoryrequirement." (Emphasis added.) IPI Criminal 4th, Committee Noteat VIII.

IPI Criminal 4th No. 6.03 (conspiracy) mandates giving aninstruction that defines the offense that is the subject of theconspiracy -- in this case IPI Criminal 4th No. 7.01. Thatinstruction, in pertinent part, defines the offense of firstdegree murder as follows:

"A person commits the offense of first degree murderwhen he kills an individual [without lawful justification]if, in performing the acts which cause the death,

[1] he intends to kill or do greatbodily harm to that individual [oranother];

[or]

[2] he knows that such acts will causedeath to that individual [or another];

[or]

[3] he knows that such acts create astrong probability of death or greatbodily harm to that individual [oranother];

[or]

[4] he [(is attempting to commit) (iscommitting)] the offense of __________." IPICriminal 4th No. 7.01.

The accompanying Committee Note provides the following directive:

"When the prosecution is for an inchoate offense(i.e., attempt first degree murder, solicitation tocommit first degree murder, conspiracy to commit firstdegree murder), do not give paragraphs [2], [3], or[4]. In addition, modify the murder definition inparagraph [1] in attempt first degree murder cases torequire that the defendant had the intent to killanother. See People v. Harris, 72 Ill.2d 16, 377N.E.2d 28, 17 Ill.Dec. 838 (1978)." (Emphasis added.) IPI Criminal 4th No. 7.01, Committee Note.

This analysis appears to undermine any argument that it issufficient to simply advise the jury that it must find thatdefendant had the intent to commit the crime of first degreemurder.

Turning to the cases, we have already acknowledged that thetwo cases cited by defendant involve charges of "attempt," ratherthan "conspiracy." We also recognize that both of those casesdealt with erroneous definitional instructions given to the juryand here we consider a case where no definitional instruction,right or wrong, was given.

Harris involved a defendant who, during an argument with hisgirlfriend, fired a gun at her car as she drove away. He wascharged with attempt to commit first degree murder. Along with aninstruction on the definition of attempt, the court submitted aninstruction on the definition of first degree murder, whichdescribed the mental state required for culpability. The jury wasinstructed that "'[a] person commits the crime of murder whokills an individual if, in performing the acts which cause thedeath, he intends to kill or do great bodily harm to thatindividual'." Harris, 72 Ill. 2d at 20, 337 N.E.2d at 30. Thedefendant objected to the instruction, since it told the jurythat he could be found guilty of attempted murder even if he hadacted only with the intent to cause "great bodily harm." Thecourt found that giving the instruction was reversible error.

In Trinkle, the defendant drank 20 to 30 glasses of beer ata tavern and, after being refused further service, left topurchase a handgun. He then returned and fired it into the bar,wounding a customer. On appeal from the defendant's attemptedmurder conviction, the court found that including instructions onthe lesser mental states of first degree murder was plain error,reasoning that "[i]t is not sufficient that the defendant [acted]'knowing such act created a strong probability of death or greatbodily harm * * *.' If this were the test, then a defendant whocommitted a battery with knowledge that such conduct could causegreat bodily harm would be guilty of attempted murder. But, inlaw, he would be guilty of aggravated battery, a completelydifferent offense with a different penalty." Trinkle, 68 Ill. 2dat 201, 369 N.E.2d at 890.

In Trinkle and Harris, the court was concerned that the jurywould find the defendant guilty of attempted murder, even if helacked the intent to kill. As the Trinkle court pointed out, thecharge of attempted murder could only be sustained if thedefendant intended by his acts to kill the victim. Trinkle, 68Ill. 2d at 203, 369 N.E.2d at 891.

The dissent cites People v. Carey, 94 Ill. App. 3d 631, 418N.E.2d 1119 (1981), as a case "clearly on point." Slip op. at____. Even though Carey deals with conspiracy (as we do) ratherthan attempt, we believe it is inapposite for three reasons. First, it was decided in 1981 -- 10 years before the legislatureabolished the crime of murder and enacted the offense of firstdegree murder. We believe the significance of that fact is thecreation of real doubt that everyone knows what first degreemurder is.

Moreover, first degree murder, as designed by thelegislature, can be accomplished with four different mentalstates. 720 ILCS 5/9-1 (West 1994). These are set out in IPICriminal 4th No. 7.01, quoted above. The jury needs to beinstructed on which form of murder the defendant is charged withconspiring to do in order to determine whether she intended tocommit that particular offense.

Second, the Carey court found "significant" support for itsdecision in the supreme court's reference to "the definitionalmurder instruction in an attempt murder case as 'the nonmandatorydefinitional instruction.'" (Emphasis omitted.) Carey, 94 Ill.App. 3d at 636, 418 N.E.2d at 1122, quoting People v. Roberts, 75Ill. 2d 1, 387 N.E.2d 331 (1979). As we have previouslydiscussed, the definitional instruction is no longer"nonmandatory."

Third, the Carey court relied on People v. Koshiol, 45 Ill.2d 573, 262 N.E.2d 446 (1970), another "attempt" case. Defendantin that case claimed error in the giving of a definitionalinstruction of murder at all. In finding no error, the courtsaid:

"'[I]t would seem utterly meaningless to instruct ajury on attempt to commit a 'specific offense' withoutdefining the specific offense alleged to have beencommitted. Such procedure would leave the juryentirely to its own devices in determining whatspecific offense the court was referring to in itsdefinition of attempt as well as in determining whetherthe defendant had taken a substantial step toward itscommission'. (45 Ill. 2d 573, 579, 262 N.E.2d 466[sic], 449-50.)" (Emphasis added.) Carey, 94 Ill. App.3d at 636, 418 N.E.2d at 1122.

The supreme court gave two reasons for defining the "specificoffense." The Carey court focused on only one -- as does thedissent here -- and gave short shrift to the other.

It is true, as Carey held and as the dissent argues, thatthe "substantial step toward the commission of the offense" andthe "act in furtherance of the conspiracy" require differentshowings of intent. The difference is reflected in the lastsentence of the Committee Note to IPI Criminal 4th No. 7.01,which requires the modification of paragraph [1] to limit theintent only to that to kill. That fact, however, is notdispositive of the issue here because, as Koshiol shows and theCommittee Note reflects, the jury should not be left "entirely toits own devices" in determining what "specific offense" is theobject of the inchoate offense. The offense of conspiracyrequires that the defendant have the intent that the objectoffense be committed, but the jury cannot accurately determinewhether the defendant had that intent unless it is given thedefinition of the offense.

It is for these reasons that we believe Carey to beinapposite and we choose not to follow it.

We do not agree with defendant's rationale for her claim oferror on this issue because neither the Committee Notes nor thecases that she has cited support the need to find a specificintent to kill in order to convict on a charge of conspiracy. Wedo, however, find that it is a substantial and prejudicial defectin the trial and, therefore, reversible error to fail to give themandatory definitional murder instruction in a case allegingconspiracy to commit first degree murder. As we have previouslyindicated, it is the responsibility of the parties to submit thenecessary instructions, but we hold that in the case of amandatory instruction, the trial court should submit it suasponte if the parties fail in that responsibility. Not to do sois, we believe, plain error.

• The Trial Court's Refusal to Submit a NonpatternJury Instruction on Conspiracy

At trial, the defendant proposed a jury instruction thatstated "mere knowledge of, acquiescence in, approval of, orevidence of a relationship or transaction between the partiesdoes not constitute a conspiracy." The instruction was requestedas support for defendant's defense that although she was aware ofJosh and Matthew's plans to kill her estranged husband, she neveragreed that the act should be committed. The trial court refusedto give the instruction and defendant claims this was reversibleerror.

A defendant in a criminal case is entitled to tender juryinstructions that state the law that applies to her theory of thecase. People v. Gilliam, 172 Ill. 2d 484, 519, 670 N.E.2d 606,622 (1996). If there is an applicable IPI instruction, it must beused. Gilliam, 172 Ill. 2d at 519, 670 N.E.2d at 622. Thedecision on whether to submit a nonpattern instruction is withinthe sound discretion of the trial court. Gilliam, 172 Ill. 2d at519, 670 N.E.2d at 622. When the essence of the nonpatterninstruction is covered by IPI instructions that are given, thecourt's refusal to give a nonpattern instruction is not an abuseof discretion. Gilliam, 172 Ill. 2d at 519, 670 N.E.2d at 622.

Here, the essence of defendant's proposed instruction iscovered by the IPI instructions that were given. The jury wasinstructed that it could only find the defendant guilty ofconspiracy if it also found that she had entered into anagreement with the other alleged conspirators to commit theoffense. Since the existence of an agreement is an element ofconspiracy, the jury is already required to find more than mereknowledge of the plot. Despite defendant's assertion to thecontrary, an ordinary lay member of the jury understands that "toagree" to something entails more than mere knowledge or evenacquiescence. Furthermore, the case from which the language ofthe proposed instruction was taken, People v. Perruquet, 173Ill. App. 3d 1054, 527 N.E.2d 1334 (1988), involved a situationwhere there was no independent evidence of an agreement to committhe object offense. In this case, there is substantialindependent evidence that the defendant agreed to the commissionof the offense.

The standard for our review of this issue is not whetheranother judge or another court would have given the requestedinstruction but whether the decision of the trial court in thiscase not to give it was an abuse of discretion. Since it doesnot appear that the defendant was prejudiced, we find that it wasnot an abuse of discretion for the trial court to refuse toinstruct the jury as requested.CONCLUSION The failure of the trial court to submit the mandatorydefinitional instruction (IPI Criminal 4th No. 7.01) to be givenwith IPI Criminal 4th No. 6.03 on conspiracy was plain error. However, for the reasons set out above, we do not find therefusal of the trial court to submit to the jury an additional,nonpattern, instruction on the crime of conspiracy to be an abuseof discretion. The essence of the proposed instruction wasalready addressed in IPI instructions that were submitted to thejury.

The judgment of the trial court is affirmed in part andreversed in part, and the case is remanded for proceedingsconsistent with this order.

Affirmed in part and reversed and remanded in part.

SLATER, J. concurs.

HOLDRIDGE, J., specially concurs in part and dissents inpart.

People v. Hopp, 3--01--0778

JUSTICE HOLDRIDGE concurring in part and dissenting in part:

I agree with the majority's conclusion that the trial judgedid not commit reversible error in refusing Hopp's non-IPIconspiracy instruction.

However, I disagree with the majority's conclusion that thejudge committed reversible error in failing to sua sponteinstruct the jury that conspiracy to commit murder requiresintent to kill. Such intent is an element of first degree murder(the object offense), not conspiracy (the charged offense). Thesignificance of this distinction was explained in People v.Ambrose, 28 Ill. App. 3d 627 (1975), a case involving conspiracyto commit armed robbery:

"The gist of the offense of conspiracy is theagreement to commit the object offense rather than theobject offense itself. It is not necessary to prove anact in furtherance of the actual object offense forconspiracy as it would be for attempt. *** [O]nly anact in furtherance of the agreement is necessary forconspiracy. This distinction *** controls the outcomeof this case. The jury as ordinary laymen have ageneral knowledge of what constitutes armed robberywhich is self-defining. If the offense which was theobject of the conspiracy were some technical orunusually complex offense of which the trier of facthas no general impression, a suitable instructionexplaining such an offense would be mandatory. This isnot such a case." Ambrose, 28 Ill. App. 3d at 633. Neither is the instant case such a case. The judge clearlyand repeatedly instructed the jury that a guilty verdict on theconspiracy count required a finding that Hopp acted "with theintent that the offense of First Degree Murder be committed." Every layperson knows that first degree murder requires akilling. Thus, the jury was clearly informed that it could notfind Hopp guilty on the conspiracy count without first findingthat she acted with intent to kill her estranged husband. Themajority's contrary assertion is unbelievable.

The cases the majority cites to support its conclusion(People v. Trinkle, 68 Ill. 2d 198 (1977), and People v. Harris,72 Ill. 2d 16 (1978)) dealt with the offense of attempt, notconspiracy. Those cases are thus distinguishable from theinstant case. See Ambrose, 28 Ill. App. 3d 627.

The only other authority the majority musters is thecommittee notes to IPI instructions 6.03 and 7.01. Althoughthose notes call for an instruction on the intentional killingaspect of first degree murder in a conspiracy case, they do notresolve the instant issue--whether the absence of such aninstruction rises to the level of reversibility. Hopp's failureto assert the instant issue below constitutes a waiver of herclaim on appeal. See People v. Huckstead, 91 Ill. 2d 536 (1982). The majority circumvents this well-established rule by invokingthe plain error doctrine as an exception. But that doctrine onlyapplies where a substantial defect at trial threatens theinterests of justice. Huckstead, 91 Ill. 2d 536. No such defectoccurred at Hopp's trial because, considering the instructionsthe jury received, any layperson would have known what she claimswas missing. I find it curious that the majority supports Part Bof its analysis with lay knowledge (the meaning of the phrase "toagree") but ignores such knowledge in Part A.

In People v. Carey, 94 Ill. App. 3d 631 (1981), thedefendant was convicted on a charge of conspiracy to commitmurder. She appealed her conviction using the same argument Hoppnow uses: "that the [judge] committed reversible error in failingto, sua sponte, instruct the jury as to the object offense ofmurder." Carey, 94 Ill. App. 3d at 632. The court, noting theobvious distinction between conspiracy and attempt, found noreversible error. Specifically, the court observed: "the failureof the [judge] to give such an instruction sua sponte does notconstitute a substantial defect invoking the limited exceptionto the waiver rule. " Carey, 94 Ill. App. 3d at 637, quotingPeople v. Underwood, 72 Ill. 2d 124, 131 (1978).

The majority deprecates Carey based on (1) the legislature'ssubsequent abolishment of the murder statute and enactment of afirst degree murder statute, (2) the Carey court's reference tothe definitional murder instruction as nonmandatory, and (3) anassertion that without the instruction the jury would be leftalone to determine the object offense. These points do notprovide meaningful distinction.

First, the change from "murder" to "first degree murder"does not obscure the patently obvious fact that a killing isstill required. Furthermore, the majority's reliance on thecommittee note to IPI 7.01 contradicts its claim that "[t]he juryneeds to be instructed on which form of murder the defendant ischarged with conspiring to do." In the note's prescribedinstruction, all forms other than intentional first degree murderare excluded. Second, despite the "nonmandatory" language inCarey, the court said, "even assuming that *** [definitional]instructions are required, such a result would not deter us fromreaching the conclusion that we do in the solicitation andconspiracy context." Carey, 94 Ill. App. 3d at 636. Third, thejury had no need to "determine" the object offense (first degreemurder). As the note to IPI 7.01 illustrates, the only pertinentelement of first degree murder in the instant case was intent tokill. Based on the instructions the judge gave, the jury knew ithad to find such intent before returning a guilty verdict. Careyis on point.

For the foregoing reasons, I respectfully dissent from theportion of the majority's order reversing the trial court'sjudgment.