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People v. Terrell
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0367 Rel
Case Date: 06/11/2003
Decision filed 06/11/03. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0367

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
                  Plaintiff-Appellee, ) Montgomery County.
)
v. ) No. 01-CF-186
)
WILLIAM R. TERRELL,  ) Honorable
) John W. McGuire,
                  Defendant-Appellant. ) Judge, presiding.

 

JUSTICE CHAPMAN delivered the opinion of the court:

After a February 2002 bench trial, the defendant, William R. Terrell, was convictedof one count of solicitation of murder (720 ILCS 5/8-1.1(a) (West 2000)). The defendantappeals, arguing that his request that his girlfriend's stepfather, Larry Wilkins, drive him andhis intended victim to the place where he planned to murder her did not fit within thestatutory definition of solicitation of murder. We reverse.

I. BACKGROUND

Wilkins became acquainted with the defendant while the defendant was datingWilkins' stepdaughter, Jewel Cooper. In August and September 2001, when the eventsleading to the charges against the defendant took place, Wilkins, his wife, and three of hischildren from a prior marriage were temporarily residing with Cooper in her home. BothWilkins and the defendant met the intended victim, Leslie Harp, when Wilkins' son, EdwardKampmon, brought her to Cooper's home after befriending her at a Hardee's restaurant. Kampmon is mentally disabled, and it appeared to Wilkins that Harp was also mentallydisabled. Cooper and the defendant had argued that day. The defendant began talking toHarp and later asked Wilkins to drive him and Harp to rural property Wilkins owned inSawyerville, Illinois, where the two spent the night in an abandoned car. Wilkins returnedto the property the following morning to drive Harp and the defendant home. After theydropped Harp off at her home, the defendant confided to Wilkins that he had a sexualrelationship with Harp and asked Wilkins not to tell Cooper about it.

Approximately three to four weeks later, Harp returned to Cooper's home andinformed Wilkins and his wife, Linda, that she was pregnant by the defendant. LindaWilkins told Cooper that Harp claimed to be pregnant with the defendant's child, and Cooperconfronted the defendant about it. He denied having been involved with Harp. Sometimethereafter, however, the defendant confided to Wilkins that he planned to kill Harp in orderto prevent Cooper from discovering his relationship with her.

Initially, the defendant told Wilkins that he intended to ask his sister to kick Harp inthe stomach to kill the baby and then he intended to get her drunk and give her capsule pillsfilled with boric acid. He intended to kill her at Wilkins' Sawyerville property and dump herbody in a well. Because the defendant has no car or driver's license, he asked Wilkins todrive him and Harp to the property. Wilkins told the defendant that he would help him, butinstead he informed the police of his conversation with the defendant.

The defendant later informed Wilkins that he had found a different location in whichto kill Harp, a location that he thought would be more appropriate. Although he did not tellWilkins where the location was, he again asked him to assist by picking up Harp in his car. Wilkins again contacted the police and reported what had transpired. He agreed to recordany further discussions with the defendant.

On September 26, 2001, Wilkins visited the defendant at his home, where thedefendant showed him a hatchet, some rope, and a steel bar. He told Wilkins that heintended to hit Harp in the head with the steel bar and use the hatchet to either cut her throator chop her up. At the defendant's request, Wilkins drove him to buy a shovel and thendrove him to an abandoned house outside of Litchfield, Illinois, where the defendantintended to kill Harp. Inside the house, the defendant used the shovel to dig a grave forHarp in the dirt floor. The shovel broke and Wilkins drove the defendant to Wal-Mart tobuy another shovel and then drove him back to the house, where he dug a second hole inwhich he planned to bury Harp. The defendant asked Wilkins to drive him and Harp to thesite two days later. He did not ask Wilkins to be present during the murder or assist in anyway beyond driving him and Harp to the abandoned house.

The following day, the State charged the defendant by information with one countof attempt (first-degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2000)) and one countof solicitation of murder (720 ILCS 5/8-1.1(a) (West 2000)). On February 22, 2002, thedefendant was tried in a bench trial. The court took the matter under advisement and, onMarch 1, 2002, found the defendant not guilty of attempt (first-degree murder) but foundhim guilty of solicitation of murder. On April 19, 2002, the trial court sentenced thedefendant to 18 years in the Department of Corrections. On May 17, 2002, the court deniedthe defendant's motion to reduce his sentence. This appeal followed.

II. ANALYSIS

The defendant argues that the State failed to prove him guilty of solicitation ofmurder beyond a reasonable doubt because he did not request, encourage, or commandWilkins to commit the murder; rather, he argues that he intended to kill Harp himself andthat he asked Wilkins only to drive him and Harp to the site where he planned to kill her. We agree.

In order to sustain a conviction for solicitation of murder, the State must prove thatthe defendant (1) intended that the offense of first-degree murder be committed and (2)commanded, encouraged, or requested another person to commit the murder. 720 ILCS 5/8-1.1(a) (West 2000). We review challenges to the sufficiency of the evidence in the lightmost favorable to the prosecution to determine whether any reasonable trier of fact couldfind the essential elements of the offense beyond a reasonable doubt. People v. Collins, 106Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). Although couched in terms of the sufficiencyof the evidence, the defendant's argument really goes to the definition of the words "tocommit" in the solicitation statute. We review questions of statutory construction de novo. People v. Glisson, 202 Ill. 2d 499, 504, 782 N.E.2d 251, 254 (2002).

The solicitation statute in Illinois provides, "A person commits solicitation of murderwhen, with the intent that the offense of first[-]degree murder be committed, he commands,encourages[,] or requests another to commit that offense." (Emphasis added.) 720 ILCS5/8-1.1(a) (West 2000). The defendant contends that requesting another person to assist himin committing a murder by driving him and the intended victim to the site where he plannedto kill her himself does not fall within this statutory definition. The State, by contrast,contends that because the act that the defendant requested Wilkins to perform would havemade Wilkins guilty of murder on an accountability theory had he performed it, thedefendant's request was in fact a request "to commit" the murder.

In support of its position, the State cites the Second District Appellate Court'sdecision in People v. Quiroz, 253 Ill. App. 3d 739, 625 N.E.2d 856 (1993). We find Quirozdistinguishable. There, the defendant was angry with his father for taking back control ofthe family cleaning business. He told his close friend, Brown, that he wanted to kill hisfather. Brown told the defendant that he might be able to find someone to kill his father forhim. The defendant asked Brown to "look into it." Quiroz, 253 Ill. App. 3d at 745, 625N.E.2d at 861. The defendant later asked Brown's friend if he could either kill his father orfind someone else to do so. Quiroz, 253 Ill. App. 3d at 743, 625 N.E.2d at 859-60. Thedefendant eventually decided to kill his father himself and asked Brown to provide an alibifor him and drive him to his father's apartment and drive him away from the apartment afterhe had killed him. Brown agreed to provide an alibi but refused to drive the defendant. Quiroz, 253 Ill. App. 3d at 743, 625 N.E.2d at 860. The defendant fatally shot his father andwas charged with two counts of solicitation as well as one count of murder. Quiroz, 253 Ill.App. 3d at 741, 625 N.E.2d at 858.

The defendant in Quiroz argued on appeal that the State failed to prove him guilty ofsolicitation with respect to his requests to Brown because he had not asked Brown to do theactual killing. Quiroz, 253 Ill. App. 3d at 744, 625 N.E.2d at 860. In affirming hisconviction, the Quiroz court relied on People v. Pagliuca, 119 Ill. App. 3d 906, 458 N.E.2d908 (1983). In Pagliuca, one codefendant requested that his cellmate find someone to killa witness for him. The appellate court upheld the solicitation conviction, finding that "[t]heentire sequence of events *** must be viewed as a single transaction, one solicitation," andthat, therefore, the defendant had solicited the intended "hit man" through his cellmate. Pagliuca, 119 Ill. App. 3d at 910, 458 N.E.2d at 912. The Quiroz court found this sequenceof events analogous to Quiroz's request that Brown "look into" arranging for someone tomurder his father. Quiroz, 253 Ill. App. 3d at 745, 625 N.E.2d at 861. Courts of otherjurisdictions presented with solicitation scenarios have reached the same result. See, e.g.,Moss v. State, 888 P.2d 509, 517 (Okla. Crim. App. 1994) ("If we were to hold otherwise,all one would have to do is place a third (or more) person in the chain and escapejudgment[.]"); State v. Yee, 160 Wis. 2d 15, 465 N.W.2d 260 (1990).

We acknowledge that in dicta the Quiroz court appeared to find that the defendant'srequests that Brown drive him to and from the scene of the crime and provide him with analibi provided additional support for the solicitation conviction. Before concluding that thedefendant's request that Brown look into finding someone to commit the murder wassufficient to sustain a solicitation conviction, the court noted that by making these requests,the defendant "also unsuccessfully attempted to involve Brown with the act of murder". Quiroz, 253 Ill. App. 3d at 745, 625 N.E.2d at 861. The court, however, did not need todecide whether these requests, standing alone, would have supported a conviction forsolicitation of murder. For the reasons that follow, we find that to be a significant differenceand agree with the defendant that Quiroz is distinguishable from the instant case.

The only case of which we are aware that addresses a situation analogous to thatbefore us is People v. Harsit, 193 Misc. 2d 680, 745 N.Y.S.2d 872 (N.Y. Sup. Ct. 2002). There, the defendant asked a man, who turned out to be a police informant, to help himpurchase an automatic or semiautomatic gun, which he intended to use to kill a judge whohad dismissed a case he had filed, the tenants in a building the defendant owned, and twoattorneys. Harsit, 193 Misc. 2d at 683, 745 N.Y.S.2d at 875. The defendant filed a motionto dismiss the solicitation charge, arguing, as the defendant does here, that he had intendedto use the gun himself and had never asked anyone to murder the intended victims for him. Harsit, 193 Misc. 2d at 688, 745 N.Y.S.2d at 878. The court rejected this argument becausethe New York solicitation statute under which the defendant was charged, unlike the Illinoissolicitation statute, expressly proscribed solicitation of any "conduct constituting a Class AFelony." Harsit, 193 Misc. 2d at 688, 745 N.Y.S.2d at 878. Because our own statutecontains no such express provision, Harsit does not aid in our decision.

The dearth of case law addressing analogous facts demonstrates the rarity of thescenario presented by this case. It is quite likely that the legislature, when drafting thesolicitation statute, did not even consider whether conduct such as that here at issue shouldfall within its purview. However, even assuming that the lack of language expresslyprohibiting conduct such as the defendant's is the result of legislative oversight, we may notignore the plain language of the statute. See People v. Reeves, 326 Ill. App. 3d 1083, 1085,762 N.E.2d 1124, 1126 (2002).

Moreover, we believe there are valid reasons to distinguish between requests to aidand abet in the commission of a crime and requests that another actually commit the crimeor procure a third person to do so. In People v. Kauten, 324 Ill. App. 3d 588, 591, 755N.E.2d 1016, 1018 (2001), a defendant argued that the sentencing statute for solicitation ofmurder violated the proportionate-penalties clause of the Illinois Constitution (Ill. Const.1970, art. I,

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