People v. Hadden

2015 IL App (4th) 140226

• Court: Appellate Court of Illinois
• Decided: December 22, 2015
• Docket: 4-14-0226, 4-15-0133 cons.
• Status: Unpublished

Opinion

2015 IL App (4th) 140226 FILED December 21, 2015 Carla Bender NOS. 4-14-0226, 4-15-0133 cons. 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JONATHON D. HADDEN, ) No. 12CF554 Defendant-Appellant. ) ) Honorable ) Robert L. Freitag, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, and opinion. Justices Harris and Appleton concurred in the judgment and opinion.

OPINION

¶1 In June 2012, the State charged defendant with solicitation of murder for hire (720

ILCS 5/8-1.2(a) (West 2010)). At defendant's February 2014 jury trial, the State introduced into

evidence two audio-recordings of surreptitiously recorded conversations between defendant and

two other people in which defendant spoke about killing his codefendant in another case. The

jury found defendant guilty, and the trial court sentenced him to 25 years in prison.

¶2 On appeal, defendant argues that the (1) evidence was insufficient to prove him

guilty beyond a reasonable doubt of solicitation of murder for hire and (2) trial court failed to

inquire into defendant's posttrial claims of ineffective assistance of counsel. We affirm.

¶3 I. BACKGROUND

¶4 In June 2012, the State charged defendant with solicitation of murder for hire, al-

leging that he procured Nathan Luster, who was an Illinois State Police undercover special agent, to commit first degree murder pursuant to an agreement whereby Luster would kill Michael An-

derson—defendant's codefendant in a pending burglary case—in exchange for United States cur-

rency.

¶5 The following evidence was presented at defendant's February 2014 jury trial. In

December 2012, defendant and Anderson were arrested and detained in the McLean County jail

for a burglary that occurred at Bloomington Cycle and Fitness. In April 2013, Nidrell Lyons, an

inmate and barber at the jail, contacted McLean County sheriff's detective Dave Fritts. The de-

tails of the conversation between Lyons and Fritts are not apparent in the record, but after talking

with Lyons, Fritts set up a recorded overhear conversation between defendant and Lyons. The

conversation took place on April 23, 2013, as Lyons cut defendant's hair in the jail's recreation

room. The jury was permitted to hear the recording of the conversation.

¶6 The recording contained, in part, the following discussion between defendant and

Lyons. Defendant blamed Anderson for his burglary arrest and stated that he wanted Anderson

"gone." Defendant told Lyons that Anderson should be bonding out of jail the following day.

Lyons said he would talk to his cousin, who could do "what you're trying to do" for $500, with

the requirement that $250 be paid up front. Defendant responded that he could provide the full

$500 up front. Later in the conversation, defendant said that he would pay Lyons' cousin $1,000,

of which $500 would be provided up front. Defendant gave Lyons a phone number for defend-

ant's girlfriend, whom Lyons' cousin could call after defendant had bonded out of jail. At the end

of the conversation, Lyons asked, "You want him gone, right?" Defendant responded, "If that

what he's willing to do—yeah."

¶7 Luster testified that he was contacted by the McLean County sheriff's office to

participate in a surreptitiously recorded conversation with defendant. On May 9, 2013, Luster

-2- pretended to be a hit man during a conversation with defendant in the visiting area of the jail.

Luster entered the jail as a regular citizen and wore plain clothes and a hidden audio-recording

device. The jury was permitted to hear that audio recording.

¶8 The recording contained, in relevant part, the following discussion. Luster intro-

duced himself to defendant as Lyons' cousin. Defendant initially sounded confused, as he was

not expecting to meet with Lyons' cousin and no longer had contact with Lyons. Defendant told

Luster that he could not pay Luster until he bonded out of jail. Defendant expected that after he

bonded out, he would acquire the money to pay Luster. Defendant explained that he expected

his father to bond him out of jail that weekend. Defendant then gave Luster his girlfriend's

phone number. Defendant explained that Luster should call his girlfriend that weekend and ask

whether defendant had bonded out of jail. If she said yes, Luster should give her his phone num-

ber, and defendant would contact him to arrange payment. If defendant had not bonded out,

"then it's pretty much dead." Defendant explained that if he was able to bond out, he would ac-

quire money to also bond out Anderson and pay Luster.

¶9 Defendant gave Luster Anderson's full name and address so that Luster could

"take a look." Defendant then gave Luster a description of the inside of Anderson's residence

and identified where in the home Anderson would likely be located and where the security cam-

eras were. Luster asked what specifically defendant wanted done to Anderson, and defendant

responded, "I just want him gone." When Luster asked defendant to clarify what he wanted done

to Anderson, defendant responded that he wanted Anderson "gone completely," he did not want

Anderson seen from or heard from again. Defendant explained that he did not want Anderson to

testify at defendant's burglary trial. Luster asked defendant where on Anderson's body he wanted

Luster to shoot, but defendant did not answer that question.

-3- ¶ 10 Defendant testified that he "was just venting" when talking to Lyons. He stated

he had no money and never intended to give Luster any money. Defendant believed that Luster

would not take any action until and unless defendant paid him first. When defendant told Luster

that he would bond out that weekend, he did not actually believe that he would bond out.

¶ 11 The jury found defendant guilty.

¶ 12 Later in February 2014, the cause proceeded to a joint sentencing hearing on de-

fendant's charges of burglary and solicitation of murder for hire. During his statement in allocu-

tion, defendant asserted that he was "sold out" because trial counsel failed to obtain "a copy of

[Lyons'] sentencing transcripts," and instead told defendant that they were not needed. Defend-

ant also stated that he asked counsel to file a motion, which counsel did not do. (Defendant did

not specify what kind of motion he asked counsel to file or whether it was related to the Lyons

transcripts.) In addition, defendant argued that he was denied his right to a bench trial and that

had his case proceeded to a bench trial, the trial court would have found him not guilty. As to

sentencing, defendant asked for a sentence less than the statutory minimum.

¶ 13 The trial court responded that the evidence against defendant was "more than

enough" to find him guilty. The court rejected defendant's contention that he was denied his

right to a bench trial, noting that defendant never requested a bench trial. The court asserted fur-

ther that had the case proceeded to a bench trial, the court would have found defendant guilty.

The court did not address defendant's statements about his counsel's performance. The court sen-

tenced defendant to 5 years in prison for burglary and 25 years for solicitation of murder for hire,

to run consecutively.

¶ 14 This direct appeal of defendant's conviction followed (case No. 4-14-0226).

¶ 15 In November 2014, while defendant's direct appeal was pending in this court, de-

-4- fendant filed in the trial court a petition for postconviction relief pursuant to the Post-Conviction

Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)), in which he argued that he was denied

his sixth amendment rights to cross-examine Lyons and to the effective assistance of counsel.

The court summarily dismissed the petition, finding it frivolous and patently without merit. De-

fendant appealed that decision (case No. 4-15-0133).

¶ 16 On defendant's motion, we consolidated defendant's appeals.

¶ 17 II. ANALYSIS

¶ 18 Defendant argues that the (1) evidence was insufficient to prove him guilty be-

yond a reasonable doubt of solicitation of murder for hire and (2) trial court failed to inquire into

defendant's posttrial claims of ineffective assistance of counsel. We disagree with both conten-

tions. Defendant does not raise any argument regarding the summary dismissal of his

postconviction petition (case No. 4-15-0133).

¶ 19 A. Sufficiency of the Evidence

¶ 20 Defendant argues that the evidence at trial was insufficient to prove him guilty

beyond a reasonable doubt of solicitation of murder for hire. Specifically, he argues that the evi-

dence was insufficient to prove that an "agreement" existed between defendant and Luster be-

cause a condition precedent to a potential agreement never occurred—namely, that defendant did

not bond out of jail. As a result, defendant argues, he was guilty of attempted solicitation of

murder for hire, if he was guilty of anything. We reject defendant's argument.

¶ 21 1. Statutory Language

¶ 22 Section 8-1.2(a) of the Criminal Code of 1961 (Criminal Code) provides, as fol-

lows:

"A person commits the offense of solicitation of murder for hire

-5- when, with the intent that the offense of first degree murder be

committed, he or she procures another to commit that offense pur-

suant to any contract, agreement, understanding, command, or re-

quest for money or anything of value." 720 ILCS 5/8-1.2(a) (West

2010).

¶ 23 2. Standard of Review

¶ 24 The parties disagree as to the appropriate standard of review. The State urges us

to apply the usual standard used to review a challenge to the sufficiency of the evidence. Under

that standard we ask whether, viewing the evidence in a light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. People v. Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d 728, 740 (2007). Defendant, citing

People v. Giraud, 2012 IL 113116, ¶¶ 4-6, 980 N.E.2d 1107, argues that the present case in-

volves a question of statutory interpretation that should be reviewed de novo.

¶ 25 We agree with the State that the Wheeler standard is appropriate in this case.

Whether an agreement existed was a question of fact for the jury, which decided it in the affirma-

tive. The Wheeler standard "gives full play to the responsibility of the trier of fact fairly to re-

solve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury's deter-

mination that an agreement existed is entitled to the deference granted by the Wheeler standard.

¶ 26 Defendant argues that when the evidence is not in dispute, there is no need to de-

fer to the jury's findings, and a court of review is free to determine on its own, with no deference

to the fact finder, whether the evidence was sufficient to support the conviction. Some case law

supports defendant's contention. See, e.g., In re Ryan B., 212 Ill. 2d 226, 231, 817 N.E.2d 495,

-6- 497-98 (2004) ("Because respondent's challenge to the sufficiency of the evidence against him

does not question the credibility of the witnesses, but instead questions whether the uncontested

facts were sufficient to prove the elements of sexual exploitation of a child, our review is de no-

vo."); People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513, 514 (2000) ("Because the facts are

not in dispute, defendant's guilt is a question of law, which we review de novo."). Defendant

claims that because the evidence presented was audio-recorded, there is no dispute as to the

facts, and, therefore, no need to defer to the jury's finding of guilt. We disagree.

¶ 27 Although defendant is correct that the evidence—namely, the audio-recordings—

was not in dispute, the inferences to be drawn from those conversations were in dispute. As we

stated previously, "[i]n determining a defendant's guilt, the trier of fact is entitled to draw reason-

able inferences that flow from the evidence [presented]." (Internal quotation marks omitted.)

People v. Sorrels, 389 Ill. App. 3d 547, 551, 906 N.E.2d 788, 792 (2009) (quoting People v.

Kirkpatrick, 365 Ill. App. 3d 927, 929-30, 851 N.E.2d 276, 279 (2006)); see also People v.

Washington, 2012 IL 110283, ¶ 60, 962 N.E.2d 902 ("It is the jury's function to weigh the evi-

dence, assess the credibility of the witnesses, resolve conflicts in the evidence, and draw reason-

able inferences therefrom."). Because drawing inferences from the evidence was a task for the

jury, we apply the deferential Wheeler standard to review the jury's decision finding defendant

guilty. See Sorrels, 389 Ill. App. 3d at 551, 906 N.E.2d at 792 ("[An] issue in this case is what

inferences the jury could have reasonably drawn from the facts in this case as the jury deter-

mined those facts. Thus, the Wheeler standard of review applies ***.").

¶ 28 We note that deferring to the jury is particularly important when the jury is con-

sidering an audio-recorded statement as opposed to a written transcript. Spoken language con-

tains more communicative information than the mere words because spoken language contains

-7- "paralanguage"—that is, the "vocal signs perceptible to the human ear that are not actual words."

Keith A. Gorgos, Lost in Transcription: Why the Video Record Is Actually Verbatim, 57 Buff. L.

Rev. 1057, 1107 (2009). Paralanguage includes "quality of voice (shrill, smooth, shaky, gravely,

whiny, giggling), variations in pitch, intonation, stress, emphasis, breathiness, volume, extent

(how drawn out or clipped speech is), hesitations or silent pauses, filled pauses or speech fillers

(e.g., 'um/uhm,' 'hmm,' 'er'), the rate of speech, and extra-speech sounds such as hissing, shush-

ing, whistling, and imitations sounds." Gorgos, supra at 1108. The information expressed

through paralanguage is rarely included in the transcript, as there is generally no written counter-

part for these features of speech. Gorgos, supra at 1109.

¶ 29 The jury has the responsibility to interpret the paralanguage and draw the appro-

priate inferences therefrom. In this case, the jury and this court both have had access to the same

recordings of defendant's conversations with Lyons and Luster. However, we might reach dif-

ferent conclusions about the meaning of the conversations based on differing interpretations of

the paralanguage involved. Under the principles of appellate review embodied in the Wheeler

standard, this court is obliged to defer to the jury's interpretations. Therefore, contrary to de-

fendant's contention, the jury had fact-finding work to do. In light of that work, the deferential

Wheeler standard of review is applicable to our determination of the jury's decision that the evi-

dence was sufficient to prove defendant guilty beyond a reasonable doubt.

¶ 30 3. Whether the Evidence Was Sufficient in This Case

¶ 31 Applying the appropriate standard of review to defendant's claim, we ask whether,

viewing the evidence—and the inferences to be drawn therefrom—in a light most favorable to

the State, any rational trier of fact could have found beyond a reasonable doubt the essential ele-

ments of solicitation of murder for hire. Defendant does not contest that the evidence was suffi-

-8- cient to prove that defendant and Luster were discussing the murder of Anderson. Instead, de-

fendant argues that no "agreement" was reached between him and Luster. Therefore, the ques-

tion we resolve on appeal is whether a rational juror could have found that an "agreement" exist-

ed between defendant and Luster that Luster would kill Anderson.

¶ 32 Defendant urges us to apply principles of contract law to determine whether an

"agreement" existed. According to defendant, the term "agreement" in the solicitation of murder

for hire statute should be defined the same as the definition of a contract under contract law.

Thus, defendant cites Lyntel Products, Inc. v. Alcan Aluminum Corp., 107 Ill. App. 3d 176, 180,

437 N.E.2d 653, 656-57 (1981), and argues that an agreement is not "effective" if a condition

precedent to that agreement has not been performed. Applying Lyntel to the present case, de-

fendant argues that his bonding out of jail was a condition precedent to the agreement between

him and Luster that Luster would kill Anderson in exchange for $1,000. Defendant concludes

that because the condition precedent was not met, there was no effective agreement and defend-

ant was not proven guilty beyond a reasonable doubt of solicitation of murder for hire. Instead,

defendant argues, the evidence proved him guilty at most of attempted solicitation of murder for

hire, an offense recognized by People v. Boyce, 2015 IL 117108, ¶¶ 25-32, 27 N.E.3d 77.

¶ 33 We reject defendant's argument that principles of contract law should be applied

to define the term "agreement" in the solicitation of murder for hire statute. Agreement is a term

of common use, and a jury should need no help in understanding that term. See People v.

Sanchez, 388 Ill. App. 3d 467, 477-78, 904 N.E.2d 162, 170 (2009) ("When words in a jury in-

struction have a commonly understood meaning, the court need not define them with additional

instructions."). If the legislature had intended "agreement" to have a more technical meaning, it

could have provided such a definition by statute. Likewise, had the legislature meant for agree-

-9- ment to take on the meaning of a contract as defined by contract law, it could have used the word

"contract" instead of "agreement." The statute contains no indication that the legislature intend-

ed for the term "agreement" to incorporate the meaning of a "contract" as defined by contract

law.

¶ 34 In further support of our decision, we note that adopting the principles of contract

law to define "agreement" would require us to instruct the jury on contract principles such as "of-

fer," "acceptance," "consideration," and "condition precedent." Although the legislature chose to

define several terms in the Criminal Code (720 ILCS 5/2-1 to 2-22 (West 2010)), it did not pro-

vide definitions for "agreement" or any of the contract terms previously mentioned. The lack of

definitions for those terms further supports our conclusion that the legislature intended the jury to

give the term "agreement" its plain and ordinary meaning and not the meaning established legal

principles have ascribed to a contractual agreement. In addition, defendant did not seek a jury

instruction to define "agreement" in the trial court but, instead, chose to leave that definition for

the jury.

¶ 35 In reaching this conclusion, we also note that in section 8-1.2(a) of the Criminal

Code (720 ILCS 5/8-1.2(a) (West 2010)), the legislature uses the term "contract" but then imme-

diately goes on to mention "agreement, understanding, command, or request for money or any-

thing of value." By doing so, the legislature clearly meant this terminology to be far broader

than the term "contract" alone. This observation further supports our rejection of defendant's ar-

gument that the nuances of civil contract law should somehow apply to this section.

¶ 36 Having concluded that "agreement" was a term of common understanding for the

jury to define, we determine further that the evidence presented here was sufficient for the jury to

find beyond a reasonable doubt that an agreement existed between defendant and Luster. A ra-

- 10 - tional juror could have found that defendant and Luster agreed that Luster would kill Anderson

in exchange for $1,000 from defendant. Although defendant never spoke the word "kill," the

jury could infer that defendant intended for Luster to kill Anderson based on defendant's state-

ments that he wanted Anderson "gone completely" and that Anderson never be seen or heard

from again. The fact that the arrangement seemed to be predicated upon defendant's release from

jail did not preclude the jury from finding that an "agreement" existed between defendant and

Luster. The evidence was therefore sufficient to prove defendant guilty beyond a reasonable

doubt of solicitation of murder for hire.

¶ 37 B. Posttrial Claims of Ineffective Assistance of Counsel

¶ 38 Defendant argues that the trial court failed to inquire into his posttrial claims of

ineffective assistance of counsel. The State responds by arguing that defendant's claims were not

sufficient to warrant an inquiry by the court. We agree with the State.

¶ 39 Under People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), and its proge-

ny, when a defendant makes a colorable posttrial claim that his counsel was ineffective, the trial

court must conduct an inquiry—known as a Krankel hearing—to determine whether new counsel

should be appointed to help defendant present that claim. However, a defendant's claim must

meet certain minimum requirements to trigger an inquiry by the court. People v. Ward, 371 Ill.

App. 3d 382, 431, 862 N.E.2d 1102, 1147 (2007).

¶ 40 "[A] pro se defendant is not required to do any more than bring his or her claim to

the trial court's attention." (Internal quotation marks omitted.) People v. Taylor, 237 Ill. 2d 68,

76, 927 N.E.2d 1172, 1176 (2010) (quoting People v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631,

638 (2003)). However, a bald allegation that counsel was inadequate is insufficient to trigger a

Krankel hearing. People v. Radford, 359 Ill. App. 3d 411, 418, 835 N.E.2d 127, 133 (2005).

- 11 - Instead, a defendant's claim must be specific and supported by facts. Id.

¶ 41 In People v. Reed, 361 Ill. App. 3d 995, 998-99, 838 N.E.2d 328, 331 (2005), af-

ter the defendant was found guilty, he wrote the trial court a letter stating that counsel was inef-

fective for failing to subpoena certain witnesses. The court did not respond to defendant's allega-

tions and instead sentenced defendant. Id. On appeal, this court held that the defendant's

"conclusory allegations" did not merit remand for a Krankel hearing because they did "not speci-

fy what the witnesses would have said on the stand or how they would have helped his case." Id.

at 1003, 838 N.E.2d at 335. However, we noted "that if defendant can flesh out his claim with

sufficient factual allegations, he may still petition for postconviction relief." Id. at 1004, 838

N.E.2d at 335.

¶ 42 In this case, defendant claimed that counsel was ineffective for failing to (1) se-

cure transcripts of Lyons' sentencing hearing and (2) file an unspecified motion. Defendant did

not explain what relevance Lyons' sentencing proceeding might have on defendant's case. Nor

did defendant explain what kind of motion counsel should have filed or what effect that motion

might have had on the outcome of the proceedings. Defendant's claims were bald allegations of

ineffectiveness that did not necessitate a Krankel hearing. As in Reed, defendant's assertions are

conclusory and do not explain how the sentencing transcripts or the motion might have helped

his case. Remand for a Krankel hearing is therefore unnecessary.

¶ 43 Defendant cites People v. Peacock, 359 Ill. App. 3d 326, 833 N.E.2d 396 (2005),

in support of his argument that remand for a Krankel hearing is required. We disagree and find

the facts of Peacock distinguishable. In Peacock, after being found guilty of home invasion and

other crimes, defendant wrote a letter to the trial court containing the following language:

" '[M]y attorney[,] John Taylor[,] did not represent [me] to the

- 12 - full[e]st of his ability[.] [T]he reason I say that is because he did

not send out any [subpoenas] for all my [witnesses] and he also did

not cross[-]examine the [witnesses] to prove [whether] their

test[i]mony was cred[i]ble or not. [H]e would not ask any of the

questions I wanted him to ask or show how the victim told the po-

lice and investigators two different stories in the motion of discov-

ery. [He failed to elicit] the fact that I still lived in the house until

the day I turned myself [in to] the Champaign County jail[.] [F]or

that reason[,] I would like for you to grant me a new trial so I can

have all of these things brought forth.' " Id. at 330, 833 N.E.2d at

400.

The trial court sentenced defendant without responding to the allegations of ineffective assis-

tance contained in his letter. On appeal, this court found that the trial court failed to conduct a

proper Krankel hearing and remanded for that purpose.

¶ 44 We conclude that the facts in Peacock are distinguishable from those of this case.

In Peacock, the defendant provided more than mere bald allegations. He supported his allega-

tions of ineffective assistance with facts to explain how counsel failed to cross-examine the wit-

nesses and what a sufficient cross-examination would have revealed. The facts of Peacock are in

contrast to this case, in which the defendant made generalized conclusory allegations without any

factual support. Those allegations were insufficient to require a Krankel inquiry.

¶ 45 III. CONCLUSION

¶ 46 For the foregoing reasons we affirm the trial court's judgments. As part of our

judgment, we award the State it $75 statutory assessment against defendant as costs of this ap-

- 13 - peal.

¶ 47 No. 4-14-0226, Affirmed.

¶ 48 No. 4-15-0133, Affirmed.

- 14 -