concurring in part and dissenting in part:
While I agree with the result reached by the majority on the first issue addressed — namely, whether the defendant was denied his right to effective assistance of counsel when the trial court ordered him not to discuss his testimony with counsel during the recess between the defendant’s direct and cross-examination — I believe that the issue merits a few additional comments in light of recently decided case law. After the parties had submitted their briefs, but prior to oral argument, the State moved to add authority by citing People v. Seider (1981), 98 Ill. App. 3d 175, 423 N.E.2d 1217. The State’s motion was allowed, and defendant was permitted to respond thereto.
In Seider, the defendant was told that he could not discuss his testimony with anyone during a recess between defendant’s direct and cross-examination. On appeal, the State argued initially that the issue was waived because defendant had failed to object to the court’s order at the time it was given and because the issue had not been presented to the trial court in defendant’s post-trial motion. The appellate court, after reviewing relevant case law, concluded that the case before it was distinguishable from Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, and People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96 (wherein the United States Supreme Court and the Illinois Supreme Court found reversible error where defendants were prevented from consulting with their attorneys during recesses), in that neither the defendant nor defense counsel in Seider requested or indicated a need to confer with the other. Instead, the Seider court relied on United States v. Leighton (2d Cir. 1967), 386 F.2d 822, wherein the Second Circuit Court of Appeals held that it is not reversible error to impose an embargo order preventing a defendant from consulting with his attorney if the record does not show that defense counsel had something to discuss with the defendant.
In Leighton and Seider, as in the present case, the recess involved a relatively short period of time, unlike Geders and Noble which both involved overnight recesses. Recognizing that the trial judge needs to have broad — but not unlimited — powers in controlling the progress of the trial (Geders v. United States (1976), 425 U.S. 80, 87, 47 L. Ed. 2d 592, 598, 96 S. Ct. 1330,1334-35). I choose to review the trial judge’s determination on this issue only to consider a possible abuse of discretion.
One example of the trial court’s power and its limits concerns the power to control the timing of testimony. If, for instance, it is 3:30 in the afternoon and the next witness to testify in a criminal trial happens to be the defendant, the trial judge may legitimately inquire of counsel how long the defendant’s direct testimony is expected to take and how long cross-examination might take thereafter. With this information in mind, the trial judge may decide whether or not any part of the defendant’s testimony is to be heard before adjourning for the day. This decision is a common exercise of the trial judge’s discretion. To further order that during the overnight recess the defendant may not consult with counsel, however, is an abuse of discretion because such order impairs the defendant’s sixth amendment right to effective assistance of counsel. (Geders v. United States; People v. Noble.) Likewise, it would be an abuse of discretion to impose such an order during a dinner recess if either the defendant or his counsel expressed a need to consult during that period because, again, the order would impair the defendant’s sixth amendment rights.
On the facts before us, wherein the recess was of a relatively short duration, as opposed to overnight, and neither defense counsel nor the defendant expressed a need to consult with the other, the trial court did not abuse its discretion in ordering defense counsel not to discuss the defendant’s testimony with him over the recess. The defendant’s right to effective assistance was not impaired by the order. On this basis, I concur with the result reached by the majority.
In addition to reciting my views on the above issue, I must respectfully dissent from the majority’s views on the one-act one-crime issues presented in this case.
I agree with the majority that, if multiple convictions had been entered erroneously by the trial court, the matter would be a sufficiently serious violation of the defendant’s substantial rights as to warrant our review under the “plain error” rule. The convictions in the present case, however, were entirely proper in light of the multiple acts involved, culminating in attempt (murder) on an accountability theory. Initially, I believe that it would be less than honest not to point out that neither party has briefed or argued the issue of whether the defendant’s convictions for solicitation and conspiracy can stand in light of People v. King. In fact, the only one-act one-crime issue raised by the parties on appeal concerns whether the defendant’s convictions for conspiracy and attempt (murder) on an accountability theory may stand.
Whereas there is authority in Illinois for vacating convictions, despite failure of the parties to raise the issue on appeal where multiple convictions have been entered for a single offense (People v. Evans (1979), 80 Ill. App. 3d 87, 398 N.E.2d 1219), in my opinion this court should confine its sua sponte review of issues to those which are settled law.
In this case, the majority has determined that the defendant’s conviction for solicitation may not stand with his conviction for conspiracy. In so deciding, the majority erroneously asserts that there exists a “divergence of opinion” on the issue. Until the majority’s opinion herein, there was no such divergence. (See People v. Latham; People v. Harvey.) For this court to sua sponte overrule settled case law without affording the parties an opportunity to present arguments on this issue is contrary to the purpose of established rules for appeals which promote the type of careful consideration that a court of review is expected to apply. (Ill. Rev. Stat. 1979, ch. 110A, par. 602 et seq.) Furthermore, the majority’s analogy of the criminal offenses of solicitation and conspiracy to the offer and acceptance elements of a contract is fatally defective, as a cursory review of the statutory definitions of the two offenses readily reveals. As observed by the court in Latham:
“To prove the offense of solicitation, the State must show that an individual, with the intent that an offense be committed, requests another to commit that offense. (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 1(a).) To prove a conspiracy, the State must show that an individual agrees with another to commit an offense and then performs an act in furtherance of the conspiracy. Ill. Rev. Stat. 1975, ch. 38, par. 8 — 2(a).” 73 Ill. App. 3d 995, 997-98.
Contrary to the majority’s opinion, the agreement element for conspiracy does not necessarily include a command, encouragement or request by one individual to another to commit an offense. Certainly one can agree with another to commit an offense without one party having asked the other to commit that offense. Therefore, even if this were a proper case to reconsider the one-act one-crime aspect of convictions for solicitation and conspiracy, I could not subscribe to the rationale applied by the majority herein in reaching its unprecedented conclusion.
The second one-act one-crime issue considered by the majority— whether the defendant’s convictions for conspiracy and attempt (murder) on an accountability theory may stand in light of People v. King — is, in my opinion, properly before this court. This issue, as observed by the majority, was raised in the trial court at the defendant’s sentencing hearing. Inasmuch as the issue does not concern any claim of error in the defendant’s trial, I believe that trial counsel need not have included the issue in the motion for a new trial. Instead, counsel properly preserved the issue for appeal by bringing it to the trial court’s attention at the earliest appropriate opportunity — that is, at the sentencing hearing. The parties on appeal have fully briefed and argued the question of whether the defendant may properly stand convicted of both conspiracy and attempt (murder) on an accountability theory. Having considered the arguments of counsel and relevant case law, I find that the defendant’s position must fail.
The defendant grounds his argument on appeal on People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, wherein the Illinois Supreme Court stated that multiple convictions may not stand where: (1) more than one offense is carved from the same physical act; and (2) when multiple acts are involved and one or more offenses are, by definition, lesser included offenses. The court cautioned, however, that multiple convictions and concurrent sentences are permissible in cases where multiple acts are committed which support different offenses which are not by definition lesser included. 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.
The defendant argues on appeal that the same physical acts which constituted proof of the conspiracy charge were also used to convict him of attempt (murder) on an accountability theory. The defendant’s argument is essentially the same as that considered by the First District Appellate Court in People v. Vettese (1978), 61 Ill. App. 3d 279, 377 N.E.2d 1168.
In Vettese, the defendant and three other persons agreed to sell land owned by another without the owner’s authorization. The defendant contacted a prospective buyer and an attorney to handle the transaction. One of the defendant’s co-conspirators, after a series of other transactions, eventually signed the owner’s name to a deed of trust and a trust agreement. The fraud was thereafter discovered, and the defendant was convicted of conspiracy and attempt (theft by deception). On appeal, the defendant, relying on King, claimed that the trial court had erred in convicting him of the conspiracy charge because that charge was based on the same physical acts which supported the conviction for attempt (theft by deception). The court rejected the defendant’s argument. Initially the court found that the agreement element of the conspiracy offense was met with proof that the defendant and three others attempted to sell land belonging to another without his authorization. The second element of the conspiracy offense — an act in furtherance of the conspiracy — was met by the defendant’s act of contacting a potential buyer and offering to sell the land.
Once these acts had established the elements of conspiracy, further acts which constituted a substantial step toward completion of the agreed upon offense, whether committed by the defendant or any other member of the group, imposed on the defendant criminal liability for attempt (theft by deception). In Vettese, the substantial step to prove attempt was found to be the execution of a trust deed and letters of direction to complete the land transfer. The act constituting this substantial step was, in fact, committed by one of the defendant’s co-conspirators rather than by the defendant himself.
In the present case, as in Vetesse, the acts sufficient to comprise the conspiracy offense were completed before the substantial step to establish the second offense was taken by the defendant’s co-conspirator. The State in the present case, proved the existence of an agreement between the defendant and McCallister to commit murder. In furtherance of that agreement, the State proved that the defendant provided McCallister with a weapon and transported McCallister to the intended victim’s residence. The agreement to commit murder plus the defendant’s acts in furtherance of that agreement thus complete the offense of conspiracy. McCallister’s act of discharging the gun with the intent to kill the intended victim constituted the substantial step element of the offense of attempt (murder). On an accountability theory, this act imposed criminal liability for the additional offense of attempt (murder) on the defendant. See Vettese.
Thus analyzed, the offenses of conspiracy and attempt (murder) were not carved from the same physical acts. Nor can it be said that either attempt or conspiracy is, by definition, a lesser included offense of the other. Different elements were required to prove each offense, and it cannot be said that one offense could be established by proof of a less culpable mental state than the other. Ill. Rev. Stat. 1979, ch. 38, par. 2-9 (a).
Because the trial court properly ruled that the acts comprising solicitation, conspiracy and attempt (murder) were sufficiently distinct to sustain convictions for all three offenses, I would affirm the defendant’s convictions.