dissenting:
I respectfully dissent. The appellate court correctly determined that the defendant is entitled to a new trial on the bases of both the trial court’s refusal to give the lesser included offense instruction and the prosecutor’s prejudicial misstatements in closing argument.
The majority opinion erroneously concludes that the trial court was correct in refusing the defendant’s lesser included offense instruction. The majority concedes that, generally, solicitation to commit aggravated battery is a lesser included offense of solicitation to commit murder. However, the majority determines that solicitation to commit aggravated battery "ceases” to be an included offense of solicitation to commit murder when the entrapment defense is raised. I disagree. The majority’s conclusion is neither required nor just.
As the majority notes, the analysis of whether a "lesser included offense” instruction is appropriate requires an examination of: (1) whether the charging instrument contains a "main outline” for the lesser offense, and (2) whether, under the evidence presented at trial, the jury could rationally find the defendant guilty of the lesser offense but acquit on the greater offense. (People v. Novak (1994), 163 Ill. 2d 93, 107-08.) The majority purports to adhere to the requirement of looking to the evidence presented at trial in determining whether the lesser included offense instruction is warranted. (166 Ill. 2d at 487-88.) However, the majority’s ultimate conclusion is totally inconsistent with such an analysis. The majority’s decision is based, not upon an analysis of the evidence, but upon an unwarranted and illogical interpretation of the effect of this court’s decision in People v. Gillespie (1990), 136 Ill. 2d 496.
In Gillespie, this court held that a defendant who denied committing an offense may not raise the defense of entrapment. The majority here reasons that because a defendant raising entrapment must, under Gillespie, admit the offense, the defendant is no longer entitled to an instruction on a lesser included offense. According to the majority, it would no longer be possible for the jury to rationally find the defendant guilty of the lesser offense but acquit on the greater offense.
I note, parenthetically, that I question the continued adherence to the holding of Gillespie. I find persuasive the argument espoused by the United States Supreme Court, and the lower Federal courts, that a defendant should be allowed to deny the commission of the charged offense but nevertheless raise the defense of entrapment. (Mathews v. United States (1988), 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883.) This court has repeatedly recognized that Illinois law allows a criminal defendant to raise inconsistent defenses. (People v. Whiters (1992), 146 Ill. 2d 437 (where there is evidentiary support for an involuntary manslaughter instruction, such an instruction is not prohibited by a claim of self-defense); People v. Bratcher (1976), 63 Ill. 2d 534, 540 (a defendant is entitled to the benefit of any defense shown by the evidence, even if the facts on which such defense is based are inconsistent with the defendant’s own testimony).) This court’s decision in People v. Everette (1990), 141 Ill. 2d 147, is particularly instructive in this area. In Everette, the court held that a defendant is entitled to an instruction on self-defense as long as there is some evidence in the record to support it, even if the defendant testifies that he accidentally killed the victim. In so holding, the court specifically rejected the State’s assertion that this conclusion was prohibited by the inconsistency of the two defenses, noting that the defendant had a right " 'to present as many defenses as he had or thought he had,,’ ” even if those defenses conflicted. (Emphasis in original.) Everette, 141 Ill. 2d at 155-56, quoting People v. Jersky (1941), 377 Ill. 261, 267.
I agree with the observation of the Supreme Court in Mathews that there is no reasoned basis for subjecting the entrapment defense to a rigid consistency requirement to which other defenses are not subject. (Mathews, 485 U.S. at 66, 99 L. Ed. 2d at 63, 108 S. Ct. at 888.) Nevertheless, I do not find it necessary to disturb the holding of Gillespie at this time because Gillespie is not applicable to this case.
Gillespie held only that a defendant who denies committing the offense charged is not entitled to have the jury instructed on the entrapment defense. (Gillespie, 136I Ill. 2d at 501.) The reason for this rule, the court explained, is the "common sense” proposition that it would be "factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he committed the offense, but only because of incitement or inducement by the authorities.” Gillespie, 136 Ill. 2d at 501.
The majority concedes that Gillespie did not address the issue presented in this case, that is, how the entrapment defense affects a defendant’s right to a lesser included offense instruction. I agree with the majority that this court has not yet addressed this important issue.
As the majority acknowledges, the controlling analysis in determining if the defendant here was entitled to a lesser included offense instruction, once the "charging instrument” test was passed, is whether the evidence could rationally allow the jury to find the defendant guilty of the lesser offense, while acquitting him of the greater offense. (166 Ill. 2d at 486.) This was entirely possible under the evidence presented in this case. The jury could have rationally found the defendant guilty of soliciting aggravated battery, while acquitting him of soliciting murder, based upon the entrapment defense. Gillespie would not alter that conclusion. As noted, the basis for the Gillespie decision was the determination that the defendant could not assert inconsistent defenses. When the evidence in this case is analyzed, there is no legal or factual inconsistency between the defendant’s assertion of the entrapment defense and the giving of the requested lesser included offense instruction. The rationale for the Gillespie decision is thus not present in this case, and Gillespie, therefore, does not apply.
The defendant’s theory at trial was that he did in fact solicit the aggravated battery of the two employees. The defendant further took the position that, while he did ultimately formulate the intent to have the two men murdered, he did not originate that intent but, rather, it was only the result of the persuasion of the government agents. In other words, the defendant essentially admitted to committing the offense of solicitation to commit aggravated battery, but contended that he was entrapped into forming the intent to "elevate” the solicited act to murder.
The evidence at trial was sufficient to support the defendant’s theory, in all of its aspects. The defendant’s testimony and the tape-recorded conversations supported the position that the defendant solicited the aggravated battery of the men. Further, both the defendant’s testimony and the tape-recorded conversations supported, strongly in my view, the position that the defendant did not originate the intent to have the men murdered, but that he was entrapped into formulating that intent.
Thus, the defendant’s theory at trial was logically and legally consistent and was supported by the evidence. It is well-established that a criminal defendant is entitled to an instruction on any defense; or lesser included offense, that has even slight foundation in the evidence. (People v. Novak (1994), 163 Ill. 2d 93, 109; People v. Everette (1990), 141 Ill. 2d 147, 156.) The defendant was therefore entitled to the requested lesser included offense instruction in this case.
I note that the majority, in what appears to be an alternative ground for its holding on this issue, asserts that there was very little evidence to support a finding that a solicitation for an aggravated battery took place. (166 Ill. 2d at 491.) The majority reasons that the defendant "entered into one agreement with Holguin,” i.e., to solicit murder. (166 Ill. 2d at 491.) The meaning of the majority’s statement is unclear, for two reasons. The majority seems to ignore the principle that a defendant is entitled to a lesser included offense instruction as long as there is any evidence to support it. (Novak, 163 Ill. 2d at 109.) Further, the majority’s assertion is not borne out by the record. The offense of solicitation requires only that the defendant have commanded, encouraged or requested another to commit an offense. (720 ILCS 5/8 — 1(a) (West 1992).) An actual agreement between the parties is not an element of that offense. (See People v. Breton (1992), 237 Ill. App. 3d 355, 361-62 (distinguishing solicitation, which does not require a bilateral agreement, from conspiracy, which does require a bilateral agreement).) Even considering only the excerpts from the record contained in the majority opinion, it is clear that there was enough evidence that the defendant encouraged or requested an aggravated battery to warrant the lesser included offense instruction.
The failure to give the lesser included offense instruction in this case was undeniably prejudicial to the defendant. The trial court’s refusal effectively denied the defendant any defense whatsoever. The defendant, having essentially admitted that he committed the solicitation of aggravated battery, was not allowed to have the jury consider that offense as a possible verdict, if he wished to raise the defense of entrapment. However, the entrapment defense was essential as it presented the defendant’s explanation for his ultimate formulation of the intent to have the employees murdered. The defendant was thus placed into the “Catch 22” situation of having to choose one of the two positions, neither of which, standing alone, provided a full explanation of the defendant’s theory. As a result, the jury was left with the options of convicting the defendant of solicitation to commit murder or acquitting him outright, even though the defendant had admitted to committing the lesser crime. Only the giving of both the entrapment and the lesser offense instructions could have given the jury the full range of options it needed to properly analyze the evidence and reach a verdict that was just.
In my view, the result reached by the majority in this case runs counter to the purpose behind the entrapment defense. The defense of entrapment evolved in recognition of the public policies that:
“The first duties of the officers of the law are to prevent— not to punish — crime. It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing it. *** There is common agreement that where a law officer envisages a crime, plans it and activates its commission by one not theretofore intending its perpetration, for the sole purpose of obtaining a victim through indictment, conviction and sentence, the consummation of so revolting a plan ought not to be permitted by any self-respecting tribunal. *** Public policy forbids such sacrifice of decency.” (In re Horwitz (1935), 360 Ill. 313, 327.)
The majority’s holding in this case leaves the government entirely at liberty to entrap persons who may be of a mind to commit a lesser crime into committing a more serious offense, and, in the process, almost ensure itself of a conviction on the greater offense. This result does not serve to deter entrapment by government agents but, rather, rewards it.
Accordingly, I believe that the trial court committed reversible error in refusing the defendant’s lesser-included offense instruction. Given that this court has repeatedly allowed a criminal defendant to raise multiple defenses which are, in fact, factually inconsistent with one another, I cannot comprehend the justification for the result reached by the majority in this case, where the defendant’s two positions are perfectly consistent. The majority’s decision is simply unjust. On this basis alone, I would remand for a new trial.
In criticizing this dissent, the majority states that I "ignore” the language of the indictment in concluding that a lesser included offense instruction was warranted. (166 Ill. 2d at 491.) May I remind the majority that, in making this criticism, the majority ignores the language of its own opinion wherein it finds that the indictment in this case did "provide the necessary main outline or broad foundation of a charge of solicitation to commit aggravated battery” (166 Ill. 2d at 487).
I also disagree with the majority’s resolution of the issue of the prosecutor’s misstatements in closing argument. I agree with the appellate court majority that the prosecution repeatedly misled the jury regarding the evidence necessary to disprove the entrapment defense. As the appellate court opinion fully explains, reversible error occurred when the prosecutor erroneously informed the jury on several occasions that the defendant’s entrapment defense failed if the evidence showed that the defendant originated either the criminal purpose of beating the victims or the criminal purpose of murdering them. Because I believe that the appellate court majority opinion adequately addresses this issue, I will not reiterate that reasoning here.
For the foregoing reasons, I would affirm the judgment of the appellate court granting the defendant a new trial.
JUSTICE McMORROW joins in this dissent.