People v. Cramer
| Decision Date | 12 October 1978 |
| Docket Number | No. 14061,14061 |
| Citation | 381 N.E.2d 827,64 Ill.App.3d 688,21 Ill.Dec. 500 |
| Parties | , 21 Ill.Dec. 500 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry P. CRAMER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Donald M. Tennant, Champaign, for appellant.
Larry P. Cramer, pro se.
William J. Scott, Atty. Gen. State of Ill., Chicago, Donald B. Mackay, Raymond J. McKoski, Thomas W. Connors, Asst. Attys. Gen., for appellee; Thomas J. Difanis, State's Atty., Urbana, of counsel.
Defendant appeals his convictions of conspiracy to commit murder (three counts), and solicitation to commit murder (six counts), entered upon jury verdicts.
Defendant's post-trial motion alleged some 70 errors, most of which are argued in defendant's brief. Upon Pro se oral argument it is contended that the cause should be reversed for accumulated error and the argument was directed to the several errors discussed severally hereafter.
The sum of the allegations of the indictment is that between February 1974 and December 13, 1974, defendant conspired with a client, Weathington, to murder defendant's wife and that within such period defendant agreed and requested and encouraged Weathington to commit murder. (Ill.Rev.Stat.1973, ch. 38, par. 8-1 and 8-2.) On November 18, 1974, Weathington advised both the police and the State's Attorney of the schemes which are the subject of the prosecution and cooperated with them in the recording of certain conversations between the conspirators. He testified in behalf of the prosecution, both before the grand jury and at trial. Defendant's wife testified in behalf of the defendant. Defendant did not testify.
The trial court instructed the jury upon the issues of conspiracy in the language of IPI Criminal No. 6.04. The operative words considered here are,
Defendant objected to the giving of the instruction for the reason that it failed to set forth the specific acts alleged in the indictment, and that it failed to require that one or more of the overt acts so alleged be proven beyond a reasonable doubt. The testimony includes and concerns acts of defendant and Weathington, any one of which may be deemed overt acts in furtherance of the conspiracy but which are not actually charged or alleged in the indictment.
The defendant also tendered an instruction which modified IPI Criminal No. 6.04 by stating in such third paragraph the overt acts which the indictment alleged were performed by defendant. The indictment did not allege any overt acts performed alone by the co-conspirator, Weathington. Defendant's tendered instruction was refused.
Illinois Revised Statutes 1973, chapter 38, paragraph 8-2, defines the elements of conspiracy. That definition concludes with the sentence:
"No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is Alleged and proved to have been committed by him or by a co-conspirator." (Emphasis supplied.)
During the period when the co-conspirator, Weathington, was cooperating with the police, certain telephone conversations of the alleged conspirators were recorded. The recordings were played before the jury during the course of the trial.
Shortly after retiring the jury requested a transcript of the several recordings. The trial judge concluded that such transcripts were not offered into evidence and could not be sent to the jury. The jury then requested that the tapes and a machine to play them be provided. The request was denied because of the judge's concern that the tape recordings might be damaged or erased.
After the jury had deliberated some 20 hours, the trial judge and counsel conferred on the record. At that time the judge stated that he would ask whether or not the jury was making progress, saying:
Defendant's counsel objected to the playing of the tapes at such time after the prior jury request had been refused, asserting such to be an abuse of discretion and argued that playing the recording at that time would be a prejudicial emphasis upon the testimony. He also asked that certain defense cross-examination and evidence be re-read to the jury. The court advised that he would not allow such defense testimony to be reviewed unless the jury asked for it.
The jury was returned to the courtroom and, upon inquiry, the foreman advised that he was of the opinion that the jury Was progressing in its deliberations. The judge then asked:
"Would it help, in your opinion, in this case if you were to hear the tapes played here in the courtroom?"
The foreman responded affirmatively as did each juror upon individual inquiry. The recordings were again played and the defendant's objections, together with a motion for a mistrial, were denied. The jury returned a verdict within 45 minutes. The issue is preserved in the post-trial motion.
The prosecution argues that there was a proper exercise of discretion in suggesting the replay of the recording because the previous denial may have discouraged renewal of the request although the jury may have continued to be uncertain or confused.
Certain other issues preserved in the post-trial motion and briefed and argued on appeal are noted.
Defendant argues that the issues instruction, IPI Criminal No. 6.04, was erroneous in that, while it required the prosecution to prove that the conspirators agreed to commit the crime, it did not require the State to prove that they intended to agree. The words "(I)ntended to agree" appear to be directed to the notion that they agreed to conspire. Thus, defendant alleges that the trial court erred in denying his tendered instruction, IPI Criminal No. 6.03, modified to read, "(I)ntends to, and does agree with another." He cites Marcus, Criminal Conspiracy; The State of Mind Crime, 1976 Illinois Law Forum 627.
We find that the study is directed toward the law required in Federal convictions. Title 18, United States Code Annotated, paragraph 371, provides "(I)f two or more persons conspire either to commit any offense * * *." We note that the former Illinois statute (Ill.Rev.Stat.1961, ch. 38, par. 139) defined conspiracy in the language "(I)f any two or more persons conspire or agree together * * *."
The present statute defining conspiracy uses different language. Illinois Revised Statutes 1973, chapter 38, paragraph 8-2, provides, "A person commits conspiracy when, with intent that an offense be committed, He agrees with another * * *." (Emphasis supplied.)
Under the prior Illinois statute it was held that at least two parties with a common criminal intent are necessary to conspiracy, and where there are but two parties an acquittal of one required the discharge of the other. (People v. Cohn (1934), 358 Ill. 326, 193 N.E. 150.) It was held that more than one person must be guilty to sustain a conviction. People v. Nathanson (1945), 389 Ill. 311, 59 N.E.2d 677.
The present statute, however, specifically provides that these holdings are no longer effective. The present statute states in paragraph 8-2(b) that:
Citing the present Illinois statute defining conspiracy, Marcus notes:
1976 Illinois Law Forum 627-28.
By reason of our present statute we conclude that the intent to agree which defendant argues is encompassed within the language which requires allegations and proof that defendant agreed with another to commit an offense.
Defendant argues that since the prosecution introduced evidence of motive, the trial court erred in denying his tendered instruction modifying IPI Criminal No. 3.04 to include "The State is required to prove a motive for the commission of the crime charged." The prosecution did not tender IPI Criminal No. 3.04. In People v. Enright (1912), 256 Ill. 221, 234, 99 N.E. 936, 941, the court said that if the accused committed the act, the question whether he had a motive or what it was is immaterial. While evidence tending to show the existence or non-existence of the motive is admissible and the People may so show, they are under no obligation to do so. The opinion continues to state:
"If the People claim that a motive existed inducing the commission of the act it must be proved, and,...
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Cramer v. Fahner
...the two alleging overt acts before November 18. The conviction was upheld by the Illinois Appellate Court. People v. Cramer, 64 Ill.App.3d 688, 21 Ill.Dec. 500, 381 N.E.2d 827 (1978). Leave to appeal was denied by the Illinois Supreme Court on January 25, 1979 (No. 51432), and the Supreme C......
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People v. Pagliuca
...the police units also fails. In a case strikingly similar to the instant matter, the defendant in People v. Cramer (1978), 64 Ill.App.3d 688, 21 Ill.Dec. 500, 381 N.E.2d 827, was charged with conspiracy and solicitation to commit murder. In Cramer, the court held that testimony of the defen......