People v. Breton

• Decision Date: 20 November 1992
• Docket Number: No. 2-91-0087,2-91-0087
• Citation: 603 N.E.2d 1290,177 Ill.Dec. 916,237 Ill.App.3d 355
• Parties: , 177 Ill.Dec. 916 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith M. BRETON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1290

603 N.E.2d 1290

237 Ill.App.3d 355, 177 Ill.Dec. 916

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith M. BRETON, Defendant-Appellant.

No. 2-91-0087.

Appellate Court of Illinois Second District.

Nov. 20, 1992.

G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Thomas A. Lilien, argued, Asst. Defender, Office of State Appellate Defender, Elgin, for Keith M. Breton.

James E. Ryan, Du Page County State's Attorney, Wheaton, William L. Browers, Deputy Director, argued, State's Attorneys Appellate Prosecutor, Elgin, for People.

Justice UNVERZAGT delivered the opinion of the court:

Defendant, Keith Breton, was convicted of solicitation of murder for hire (Ill.Rev.Stat.1989, ch. 38, par. 8-1.2) and sentenced to a term of 30 years' imprisonment following a jury trial in the circuit court of Du Page County.

On appeal, defendant raises the following issues: (1) whether the State failed to prove the "agreement" element of its charge of solicitation of murder for hire; (2) whether the trial court erred in admitting prejudicial evidence of other crimes; (3) whether the trial court erred by allowing the State to impeach a witness on a collateral issue; (4) whether prosecutorial misconduct denied the defendant a fair trial; and (5) ineffective assistance of counsel.

The following facts are relevant to our disposition of the issues raised on appeal. The defendant sold cocaine to Gary Wehrmeister at least 20 times between 1980 and 1989. On March 2, 1989, Wehrmeister purchased cocaine from the defendant to resell to a customer, Hogan, who was cooperating with law enforcement authorities. At that time, Wehrmeister was unaware that Hogan was cooperating with law enforcement authorities.

After Wehrmeister delivered the drugs purchased from the defendant to Hogan, authorities, who had been monitoring the transactions, arrested both Wehrmeister and the defendant. The defendant was charged with drug and weapons offenses and incarcerated in the Du Page County jail, where he remained pending trial.

Wehrmeister initially refused to cooperate with authorities in their case against the defendant. However, after learning that the defendant told authorities Wehrmeister was the supplier of the drugs sold to Hogan, Wehrmeister agreed on June 5, 1989, to cooperate with authorities against the defendant and testify against him at his trial scheduled for June 22, 1989. Defendant first became aware of this on June 5, 1989.

On June 12, 1989, John Bivins, a fellow inmate of defendant, advised the State's Attorney's office through his attorney that the defendant was looking for a hit man to kill Wehrmeister. Bivins later met with authorities and gave them two maps and two notes written by the defendant. Bivins told the authorities the maps and notes were to be used by the hit man. The maps showed the location of Wehrmeister's home. The notes threatened both Wehrmeister and Hogan.

The Du Page County State's Attorney's office implemented a plan to allow defendant to contact an undercover investigator posing as a hit man. State's Attorney investigators gave Bivins an untraceable undercover phone number which Bivins gave to defendant. With State's Attorney approval, Bivins also gave defendant the names "Dan" and "Bob" as persons defendant could call at the undercover number to arrange a hit. State's Attorney investigators Dan Callahan and Bob Holguin would answer the phone and pose as hit men. Bivins did not testify at the trial after it was determined that he would assert his fifth amendment privilege if called to testify.

Between June 15, 1989, and June 22, 1989, defendant made five phone calls to the undercover phone number. Law enforcement authorities tape-recorded the first four of these phone calls with judicial approval. During the four tape-recorded calls, defendant spoke with undercover State's Attorney investigator Dan Callahan, who posed as a hit man.

Defendant first called Callahan at the undercover phone number on June 15, 1989. During the conversation Callahan asked defendant what he wanted. Defendant responded "I gotta have a job done." Defendant stated the job involved "a guy" whom he identified as Gary Wehrmeister. When Callahan asked defendant what he wanted done to Wehrmeister defendant replied "I want him out. I only got about five days. He goes to trial. * * * He's gotta go." Defendant indicated that Wehrmeister had set him up for a drug charge, that he was not guilty, but that he did not want to take a chance of Wehrmeister testifying against him.

Also during the first call, defendant agreed to pay Callahan $5,000 for Wehrmeister's murder with $2,500 up front. Defendant stated he would need a day to make arrangements for the delivery of the up-front money. Defendant told Callahan he would call him the next day to further discuss the delivery of the up-front money.

Defendant called Callahan at the undercover phone number for the second time on June 16, 1989. Defendant told Callahan the up-front money was coming from out of town and Callahan could pick it up from Ken Drost, an attorney, at his downtown Chicago office. Defendant instructed Callahan to tell Drost he was an investigator there to pick up an envelope. Defendant also supplied Callahan with information to facilitate the murder of Wehrmeister. This occurred after Callahan told defendant "when your [sic ] payin' me to kill somebody I need to know everything I can." In response, defendant told Callahan where Wehrmeister lived, discussed Wehrmeister's habits, and described Wehrmeister's living arrangements.

Defendant made his third call to Callahan at the undercover number on June 19, 1989. Defendant told Callahan the up-front money was available and gave Callahan Drost's phone number. Defendant stated Drost would have the money in an envelope. Defendant also instructed Callahan he should tell Drost he was an investigator working on something for Keith (the defendant) if Drost asked what the money was for.

At defendant's request, defendant's wife had sent $2,500 in the form of a money order to Drost. On June 20, 1989, Callahan went to Drost's office and met Drost. At that time Drost endorsed the money order and delivered it to Callahan for the defendant.

Defendant made his fourth call to Callahan on June 21, 1989. Callahan told defendant he received the money order from Drost and expressed concern that a paper trail had been established. Defendant replied that he had told Drost to cash the money order and give Callahan cash. Callahan told defendant Wehrmeister's murder was "set for tonight." Defendant told Callahan he could pick up the rest of the money from Drost the next day.

On June 22, 1989, State's Attorney investigator Bob Holguin talked to the defendant by phone when the defendant called the undercover phone number and asked for "Dan." Holguin told the defendant he was "Bob." The defendant asked if Holguin knew whether Wehrmeister had gone to court and Holguin replied that he had not. The defendant said "Good" and asked whether Wehrmeister was taken care of. Holguin answered yes and said that Wehrmeister would never go to court. The defendant said the rest of the money would be available on Friday.

At his trial, defendant contended he did not really intend to have Wehrmeister murdered. He testified he wrote the maps and threatening notes to get Wehrmeister to submit an affidavit in May 1989 before he even knew Wehrmeister was going to testify against him. Defendant testified that he subsequently destroyed the original maps and notes. Bivins had given the authorities copies which defendant did not know Bivins had. Defendant also testified that after he discovered the hit man was a phony he went along with the scheme knowing no one would really be hurt. Defendant conceded that going along with the scheme was irrational and self-destructive. He said he felt angry, betrayed and frustrated and was overcome by an uncontrollable desire to pose as a bad person to "expose" the State's Attorney.

Defendant first contends that his conviction must be reversed because the State failed to prove the "agreement" element of its solicitation of murder for hire charge. This is an issue of first impression. We have found no previous case construing the term "agreement" in the solicitation of murder for hire statute.

Solicitation of murder for hire is an offense created by statute in 1988. Section 8-1.2(a) of the statute provides:

"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 or anything of value." Ill.Rev.Stat.1989, ch. 38, par. 8-1.2(a).

The State charged defendant with solicitation of murder for hire pursuant to an agreement. The agreement in question was between defendant and Callahan. The State did not charge defendant with solicitation of murder for hire pursuant to any of the other elements of the statute. The State argues that the term "any" in the statute means a defendant may be found guilty of solicitation of murder for hire if the solicitation is pursuant to any of the elements in the statute. We do not address that question here.

The issue in this case involves the "agreement" between defendant and Callahan, an undercover government agent who only feigned agreement with the defendant (Callahan of course did not really intend to murder Wehrmeister). The jury found defendant guilty of solicitation of murder for hire pursuant to an agreement between defendant and Callahan. Defendant contends his conviction cannot stand because Callahan's feigned agreement does not satisfy the "agreement" element of the solicitation of murder for hire charge.

Defendant argues that the issue is analogous to a similar issue in conspiracy law in Illinois. He contends that, like the conspiracy statute, at least...