dissenting:
I respectfully dissent. I do not agree with the majority’s holding that the information used to charge the defendant with the present offense was fatally deficient. Nor do I agree with the majority’s further determinations that certain evidence was erroneously admitted at the defendant’s trial. Accordingly, I would uphold the defendant’s conviction.
The defendant was charged by information on June 25, 1987, with the offense of solicitation, a felony. According to the information, the defendant solicited George Nalan to murder the defendant’s wife, Barbara Thingvold. The information alleged that the offense was “based upon a series of acts performed at different times” and, moreover, that the acts constituting the offense were committed between December 1, 1983, and April 30, 1986, an interval falling largely within the applicable three-year limitations period for felonies (see Ill. Rev. Stat. 1987, ch. 38, par. 3—5(b)). In addition, the information cited the special tolling provision of section 3—8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 3—8), which provides that the limitations period for an offense based on a series of acts commences when the last act of the series is committed.
The information superseded an earlier two-count complaint, filed April 30, 1987. The complaint had charged the defendant with two separate acts of solicitation, one occurring on April 5, 1986, and the other occurring on December 3, 1986, in which the defendant asked Nalan to murder Barbara. Following a preliminary hearing on June 25, 1987, the trial court found probable cause on the first count but not on the second. The State apparently filed the superseding information later that day.
The majority concludes that the information used in the present case is fatally deficient because it does not specifically allege that any of the defendant’s acts occurred within the three-year period preceding the filing of that charge. In my view, the majority fails to consider the charging instrument in its entirety, ignoring the reference to the special tolling provision applicable to offenses comprising series of acts.
In the present case, the information alleged that the defendant’s offense comprised a series of acts, that the defendant committed those acts within a specified period of time, much of which fell within the governing limitations period, and, finally, that the special tolling provision for serial, or continuing, offenses was applicable. The reference to the tolling provision necessarily implied that the last act in the series occurred within the applicable limitations period. In my view, these allegations, in combination, demonstrated that prosecution of the defendant for the present offense was not time-barred.
For these reasons, I find distinguishable the cases cited by the majority to support its conclusion that the charging instrument used in the present case was fatally deficient. In People v. Morris (1990), 135 Ill. 2d 540, a subsequent indictment alleged the defendant’s commission of several offenses on a date outside the applicable limitations period. Although the defendant had initially been charged in a timely manner for the same misconduct, and the pendency of the original prosecution would have tolled the running of the statute of limitations, the later charge failed to cite the tolling provision, and we accordingly held that the second indictment was fatally deficient. In People v. Strait (1978), 72 Ill. 2d 503, the information alleged only a single occurrence on a date outside the applicable limitations period, and nothing on the face of the charging instrument indicated why the prosecution would not be time-barred. It appears that the charge in that case could have been saved by an allegation that the defendant was outside the State during the intervening years. (See People v. Strait (1977), 52 Ill. App. 3d 599, 604.) Finally, in People v. Toolen (1983), 116 Ill. App. 3d 632, the indictment alleged the defendant’s commission of an offense during a certain span of time, a portion of which was outside the applicable limitations period. The indictment failed to cite any statutory provision that would toll the limitations period, however, and the appellate court concluded that the prosecution was time-barred.
Unlike the invalid charging instruments at issue in Morris, Strait, and Toolen, the information used in the present case set forth the basis on which the limitations period was tolled and adequately alleged that the prosecution was not time-barred. I would conclude that the information used in the present case satisfied the pleading requirements prescribed by section 111—3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111—3(a)). Had the prosecution failed in its proof, the defendant would have been entitled to judgment in his favor. (See People v. Carman (1943), 385 Ill. 23, 25.) As a final matter, it should be noted that the defendant had at his disposal the means of obtaining further information concerning the charge against him. Although a bill of particulars will not cure a void or fatally deficient charging instrument, a bill may be used to supplement the allegations set forth in a valid charge by providing an accused with additional details of the alleged offense. (People v. Aud (1972), 52 Ill. 2d 368, 369-70; People v. Adams (1970), 46 Ill. 2d 200, 204-05.) In the present case, greater specificity could be, and was, supplied to the defendant by a bill of particulars.
Because the defendant may be retried for the present offense, the majority also examines several other issues raised by the defendant before this court. The majority first considers the admission of testimony by three witnesses regarding the defendant’s efforts to solicit them to commit murder. Sidney Haffendon and James Wagaman testified that the defendant asked them separately to murder the defendant’s second wife, Barbara. Roger Atkinson testified that the defendant asked him to murder the defendant’s first wife, Diane. The majority concludes that Haffendon’s and Wagaman’s testimony is admissible but that Atkinson’s is not. In light of the elements of the defendant’s offense, I believe that the trial judge properly admitted the testimony of all three witnesses.
The defendant was charged with solicitation, a violation of section 8—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 8—1). Under the version of the statute applicable in the present prosecution, that offense is defined as follows:
“A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a).)
Thus, the State was required to prove that the defendant intended for his wife, Barbara, to be murdered and, furthermore, that he commanded, encouraged, or requested George Nalan, the person solicited, to commit the murder.
As the majority opinion observes, evidence of other crimes committed by an accused may be admitted if the evidence is offered for a purpose other than to demonstrate a propensity to commit crime and if its probative value outweighs the risk of unfair prejudice. (145 Ill. 2d at 452.) Given the elements of the offense of solicitation, I would conclude that the trial judge did not abuse his discretion in admitting Atkinson’s testimony. The defendant believed that he would gain financially from the murder of his first wife, and he enlisted Atkinson’s assistance toward that end. This testimony supplied relevant evidence of the defendant’s later motive and intent in soliciting the murder of his second wife, Barbara. In People v. Bean (1990), 137 Ill. 2d 65, 106-07, we found no error in the presentation of testimony that the defendant, on trial in a murder-for-hire scheme, claimed to have committed other contract killings. The court found that the testimony was relevant evidence of the defendant’s “intent and willingness” to commit the charged offense. (Bean, 137 Ill. 2d at 107.) By the same token, the testimony relating the defendant’s attempt to persuade Atkinson to kill the defendant’s first wife was relevant evidence of the defendant’s efforts to persuade Nalan to murder the defendant’s second wife.
The majority also concludes that the trial court erred in admitting evidence of the April 1986 stabbing attack on Barbara. The incident occurred several weeks after a conversation between the defendant and Nalan in which the two discussed the defendant’s plans for her murder. Like the testimony concerning the defendant’s efforts to solicit persons other than Nalan to commit murder, the testimony relating the April 1986 attack was introduced as evidence of the defendant’s motive and intent. The majority concludes that the testimony was erroneously admitted because the State failed to provide sufficient evidence establishing the defendant’s participation in the incident.
Evidence of a defendant’s other criminal misconduct is not admissible unless there is some proof that the offense occurred and that the defendant participated in its commission. (Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 55.) The offense and the defendant’s role in it need not be established beyond a reasonable doubt, however. (Wernowsky, 106 Ill. 2d at 55.) In my view, there was sufficient proof of the defendant’s responsibility for the stabbing. According to the trial testimony, prior to the attack the defendant told both Haffendon and Wagaman that Barbara had previously undergone abdominal surgery and suggested to them that Barbara be stabbed in the stomach because the ensuing complications could be fatal. In the course of the attack, Barbara suffered numerous stab wounds, including wounds to the abdomen. That the intended victim was attacked in a manner specifically suggested by the defendant raises more than a mere suspicion that the defendant was accountable for that offense and is sufficient, in my view, to connect the defendant to the offense. This evidence had unquestioned relevance, and I find no error in its introduction.
With respect to the defendant’s final allegation of error, the majority determines that the trial judge improperly admitted evidence that Barbara was murdered in March 1987. Characterizing this information as “other-crimes” evidence, and thus subject to the requirements governing the admission of evidence of that nature, the majority believes that there was insufficient proof linking the defendant to the offense and, moreover, that the testimony was offered for an improper purpose.
As the majority opinion recounts, the State initially resisted introduction of evidence of Barbara’s death but later sought to introduce that information in the wake of certain testimony given by the defendant. During direct examination, the defendant testified that George Nalan called him on the telephone late in March 1987 and attempted to extort money from him. According to the defendant, Nalan threatened to tell the police that the defendant had provided him with keys to Barbara’s car so that he could then tamper with thé vehicle. Following this testimony, the trial judge ruled that the State could present rebuttal evidence relating to Barbara’s murder. Testifying in rebuttal, George Nalan denied making the extortion attempt alleged by the defendant. Nalan further stated that he regretted Barbara’s death and that about V-k weeks after the murder — she was killed on March 10, 1987 — he approached the authorities and offered to assist them in their investigation. Later, on March 26, Nalan called the defendant on the telephone, apparently attempting to elicit incriminating evidence from him. In overruling the defendant’s objection to Nalan’s rebuttal testimony, the trial judge believed that the defendant had opened the door to the introduction of this evidence. I agree.
Unlike the majority, I would not categorize this testimony as “other-crimes” evidence requiring some showing of the defendant’s participation in the offense. The evidence of Barbara’s murder was used to explain Nalan’s cooperation with the police and was properly admitted to rebut the defendant’s assertion that Nalan attempted to extort him in the present case. Contrary to the majority’s view, then, it is of no moment that the State failed to connect the defendant to the murder. The fact of Barbara’s murder, rather than the cause or agency of her death, was significant here, and thus there was no need to show the defendant’s participation in the offense. In light of the proper and limited purpose for which this testimony was offered, the identity of the murderer was, in the circumstances here, irrelevant.
Finding no fatal deficiency in the charging instrument and no reversible error in the trial court proceedings, I would uphold the defendant’s conviction for solicitation. For these reasons, I respectfully dissent.
JUSTICE BILANDIC joins in this dissent.