People v. Barnett

• Court: Appellate Court of Illinois
• Writing for the Court: NASH
• Citation: People v. Barnett, 527 N.E.2d 1071, 173 Ill.App.3d 477, 123 Ill.Dec. 433 (Ill. App. 1988)
• Decision Date: 18 August 1988
• Docket Number: No. 2-87-0536,2-87-0536
• Parties: , 123 Ill.Dec. 433 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patricia M. BARNETT, Defendant-Appellant.

Page 1071

527 N.E.2d 1071

173 Ill.App.3d 477, 123 Ill.Dec. 433

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patricia M. BARNETT, Defendant-Appellant.

No. 2-87-0536.

Appellate Court of Illinois Second District.

Aug. 18, 1988.

Cox & Simon, John W. Cox, Jr. (argued), V.V. Sprengelmeyer, Galena, for Patricia M. Barnett.

J. Christopher Moore, Jo Daviess State's Atty., Galena, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Virginia M. Ashley (argued), State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice NASH delivered the opinion of the court:

Defendant, Patricia Barnett, was charged with attempted murder (Ill.Rev.Stat.1985, ch. 38, par. 8-4(a)); two counts of solicitation to commit murder (Ill.Rev.Stat.1985, ch. 38, par. 8-1(a)); aggravated battery (Ill.Rev.Stat.1985, ch. 38, par. 12-4(c)); and three counts of forgery (Ill.Rev.Stat.1985, ch. 38, pars. 17-3(a)(1), (a)(2)). After a jury trial, defendant was found guilty of both counts of solicitation to commit murder, acquitted of the remaining charges, and sentenced to concurrent terms of imprisonment of six and eight years. She appeals, contending that (1) the State failed to prove her guilty of solicitation beyond a reasonable doubt; (2) the jury selection procedure and erroneous jury instructions on the definition of murder, the presumption of innocence, and the State's burden of proof denied her a fair trial; (3) cumulative trial errors, her trial counsel's ineffectiveness and the prosecutor's misconduct denied her a fair trial; and (4) the trial court's erroneous belief that solicitation is a Class X felony mandating a minimum sentence of six years' imprisonment requires resentencing. We affirm defendant's convictions for solicitation, vacate the sentences, and remand for resentencing.

John "Jerry" Arachikavitz testified that he and his wife, Pamela, worked with defendant, and they all became friends. Starting in December 1984, defendant visited the Arachikavitz residence approximately three times a week, bringing food on each occasion. Defendant's and the Arachikavitz' children would play in one room while the adults talked in another room. In January 1985, when defendant came over she was frequently crying and complained about her husband, Steven Barnett, a Galena police officer, and their financial situation. Jerry testified that defendant appeared more upset each time she visited, and at the end of February 1985 while defendant and the Arachikavitzes were alone, defendant asked Jerry whether he wanted to make some money by "knock[ing] off my husband." Defendant stated that she would pay Jerry $25,000 from life insurance proceeds on her husband's life but that he would have to be killed on duty because defendant would make more money. During the first week of March 1985, defendant asked Jerry whether he was going to take her up on her offer. Pamela was also present during this conversation. Jerry testified that defendant appeared serious. During subsequent visits, defendant kept bringing up the topic of killing her husband, stating that the Arachikavitzes needed the money because Jerry was not working due to a back injury. Jerry testified that, while defendant laughed after his refusals, she appeared serious and had a straight face when she broached the subject. At the end of March 1985, defendant reiterated her request to have Jerry kill her husband and Jerry testified:

"And she says that you could cut his brake lines. You could have him chase you down Highway 20 towards Elizabeth because I got a motorcycle and have him go off. Or you could just blow up the car with him and Evie in the car and kill two birds with one stone.

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She says I can ride a motorcycle pretty good. If I cut his brake lines I could fly down that road because it was all curves and he could hit one of the curves and go off it.

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She asked if I wanted more I could have it. And she says I'll still give you $25,000.00 if you'll do it. I said no. And then she turned around and says well, how much more do you want and we just left it at that at the moment.

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She was--she looked like she really wanted to do it. And her manner was straight face. No giggles, no nothing. it was just straight out and asked."

Jerry testified that at about April 27, 1985, defendant told the Arachikavitzes that her offer of 10% of the insurance policies still stood, and later said she would increase the payment to $50,000. Steve Barnett testified that defendant knew that she would receive $50,000 if he died on duty. During their conversations, defendant told Jerry that the place to get her husband would be where he usually takes his breaks, the Galena General Store by the Poco Station on Highway 20. Jerry stated that at first he thought defendant was joking because he couldn't believe any man's wife would want to kill him. Jerry testified that in June 1985 defendant told him that her husband was in the hospital because of poisoning but that he did not go to the police to discuss the conversations he had with defendant until about a year after Steve Barnett was hospitalized.

Pamela Arachikavitz' testimony substantially corroborated her husband's. She testified that during their conversations about killing Steve Barnett, defendant had a straight face but that she thought defendant was joking because she did not think that someone would consider killing one's husband. Pamela testified that her conversations with defendant started scaring her and that the topic of killing Steve Barnett came up 30 to 40 times.

Joan Lincoln, a friend of defendant's, testified that in April or May 1985, defendant came to her house nervous and crying, and when she asked defendant what was wrong, defendant stated that her husband thought someone was going to kill him and he suggested that defendant have his will prepared. Steve Barnett testified that in October or November 1984, he and defendant retained John Cox, an attorney, in connection with the purchase of a new house and defendant then suggested that Mr. Cox be retained to prepare their wills. The wills were not prepared at that time but in May 1985 defendant told her husband that they then had the money to have wills prepared, and it was done. Defendant was the sole beneficiary of her husband's will.

Delbert Kern, an insurance agent, testified that defendant contacted him in November 1984, to discuss homeowner's insurance for a new house. Kern suggested that defendant also purchase life insurance, which she did, and he stated that, while the Barnetts used to carry life insurance through his firm, the policy had lapsed several years ago. Kern testified that he saw defendant sign the life insurance application but did not witness Steve Barnett's signature. Steve Barnett testified that he did not know that an insurance policy on his life had been issued until he received the bill while in the hospital and that he had not applied for the policy. He stated that he formerly had life insurance but that defendant cancelled the policy because they could not afford it.

Prior to voir dire examination of potential jurors, defense counsel submitted a list of questions which he requested the trial judge to ask, in a specific sequence, during voir dire. The trial judge stated that while he may not ask defense counsel's questions in the form and sequence submitted, the subject matter of the questions would be covered during voir dire. At the commencement of voir dire, the trial judge stated:

"[T]hat our system of justice is such that a person is brought to court by the formal method of the State's Attorney charging them with an offense. That charge creates absolutely no presumption. In fact, the opposite is true. A person is always presumed to be innocent unless and until the State can prove them guilty beyond a reasonable doubt."

During voir dire examination, the trial court essentially asked each prospective juror if it was understood that there were seven separate charges; that these charges create no presumptions; that defendant was innocent unless the State proved her guilty beyond a reasonable doubt; that defendant did not have to prove anything; and asked whether the juror would find defendant not guilty if the State failed to meet its burden of proof on any one or all of the charges. The trial court did not ask prospective jurors whether they understood that defendant did not have to testify and that her failure to testify could not be held against her.

After voir dire, defense counsel objected to the manner in which it was conducted because the questions submitted by defendant were not asked in the precise manner and order submitted, particularly questions which would have allowed defendant to obtain a firm commitment regarding adherence to the principles of presumption of innocence, demanding proof beyond a reasonable doubt of the State of each and every element of each crime charged, and acknowledgement that defendant had no burden of proof and did not have to testify. Defense counsel acknowledged that some of his suggested questions were touched upon but argued that the questions were asked in a mixed manner; he did not cite any specific questions which were not considered at all. Counsel also acknowledged that at the conclusion of each examination the court asked whether he wanted any other questions asked or wanted any areas further explored.

At the conference on instructions a Federal instruction tendered by defendant purporting to define reasonable doubt and expounding on the presumption of innocence was refused by the trial court. The Illinois Pattern Jury Instruction on the presumption of innocence and the State's burden of proof were given at trial. See Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 2.03).

The State's tendered instruction No. 12 defined the offense of murder, as follows: "A person...