dissenting:
I respectfully dissent.
It is my opinion that the trial court was correct in refusing an instruction on the lesser offense of solicitation to commit aggravated battery. I believe the majority is mistaken in failing to recognize the unique posture of the case when the issue of entrapment was presented.
I agree that, under other circumstances, this offense could be a lesser included offense of solicitation of murder for hire. In such a case, where intent of a defendant to cause the victim’s death is a disputed element, the trier of fact might find that the State has failed to prove that element but has nonetheless proved defendant’s intent to cause the infliction of an aggravated battery. Where a dispute exists as to the proper interpretation of the defendant’s intent, as manifested by his words and conduct, the defendant has a right to have the option of the lesser included crime submitted to the jury.
When the defense of entrapment is raised, however, there is no longer any dispute as to a defendant’s intent. A prerequisite to relying on entrapment is the defendant’s admission that he committed all elements of the charged offense, including in this case the intention to cause death. (People v. Gillespie (1990), 136 Ill. 2d 496, 503.) Once commission of the crime has been admitted by a defendant, the sole issue to be considered by the trier of fact is whether public policy requires that the defendant be excused from conviction in view of alleged police misconduct inducing him to so act. The fact that the defendant has incidentally committed some other lesser offense at or near the same time he solicited murder for hire is, I submit, wholly irrelevant to the determination of this public policy issue. It is mixing apples and oranges to suggest that a jury should be given the option of finding defendant guilty of a separate lesser crime as a compromise alternative to refusing to excuse him from liability for the greater crime which he has already admitted committing. Any such suggestion loses sight of the fundamental concept of an “included” offense.
A defendant cannot be convicted of an uncharged offense which is not an included offense of the offense for which the defendant is charged. (People v. Schmidt (1988), 126 Ill. 2d 179, 183.) An “included offense” is established “by proof of the same or less than all of the facts or a less culpable mental state (or both) than that which is required to establish the commission of the offense charged.” Ill. Rev. Stat. 1989, ch. 38, par. 2—9(a) (now 720 ILCS 5/2—9(a) (West 1992)).
Under the facts of the present case, solicitation to commit aggravated battery was a lesser offense, but it was not an included one. The offense of solicitation is consummated and complete when the principal offense is encouraged or requested with the specific intent that the principal offense be committed. (See 720 ILCS 5/8—1, Committee Comments—1961, at 408 (Smith-Hurd 1993); People v. McCommon (1979), 79 Ill. App. 3d 853, 862.) By asserting entrapment, defendant has admitted his intent that a murder be committed. He now argues, however, that the jury should have been invited to focus upon separate statements he allegedly made which could be construed as also requesting an aggravated battery. Stated otherwise, defendant’s argument claims two separate acts of solicitation, one committed of his own volition and the other allegedly resulting from improper inducement by the police. Because the aggravated battery solicitation, upon which defendant requested an instruction, was based upon a different act than the charged offense, it could not provide a basis for a lesser included offense instruction. Any finding that defendant committed the elements of aggravated battery but was not shown to have possessed the additional element of intent to cause death would irreconcilably conflict with defendant’s admitting all elements of solicitation of murder.
The majority also finds reversible error in what it characterizes as misstatements of law made by the prosecutor during final argument. First, it points to the prosecutor’s statement: “The judge will instruct you that induced to commit an offense, the defendant was never induced or incited to have a severe beating done on Aric Cherim or Jamie Haliotis.” The trial court overruled a defense objection to this statement. I find it significant, however, that almost immediately after that ruling the prosecutor went on to clarify this point by stating to the jury, “The defendant was never ever induced or incited to have these men beaten. And I suggest to you he was never ever induced or incited to have the men killed. It was his decision. He told you himself he made that decision.” (Emphasis added.) In my view, the post-objection explanation by the prosecutor removed any prejudice which might have existed, and this line of argument, taken in its entirety, was appropriate.
Next, the majority is legitimately concerned with the potential for misinterpretation of the State’s comment that defendant’s “criminal purpose” was to silence the witnesses, and that defendant’s method of accomplishing this purpose would be either a severe beating or killing them. The prosecutor added, “But the criminal purpose originated with the defendant.” I agree that, in isolation, this statement might be interpreted as inviting the jury to convict on the solicitation of murder charge even if defendant did not originate the purpose of soliciting a murder. Considering, however, the series of conversations between defendant and the undercover officer during which defendant spoke alternatively of killing the victims and severely injuring them, it was legitimate for the State to argue that the idea for any criminal attack originated with defendant and not with the police. Although not conclusive, this factor might be considered as evidence tending to prove that defendant also originated the intent to cause death. In overruling the objection the trial court might well have perceived this to be the thrust of the prosecutor’s argument. In any event, although admittedly ambiguous, the argument appears to stop short of constituting a pronouncement of law that any criminal purpose originating with defendant would suffice to convict for solicitation of murder. In light of the instructions to the jury on the elements of solicitation of murder and on entrapment, I would not find sufficient prejudice for reversal on this point.
Finally, the prosecutor argued that defendant could be acquitted on an entrapment theory only if the State “incited and induced and planted in an innocent man this idea of beating up or killing someone.” In response to defense counsel’s objection, the trial court responded, “’killing someone’ — objection is sustained as to the form of that” (emphasis added). The majority concludes that the trial court erroneously sustained the objection as to the “killing someone” comment while failing to sustain it as to the argument that defendant could be acquitted only if the jury found that the State initiated the idea of “beating up” the victim. As it appears in the lifeless record, this comment by the trial judge is ambiguous; however, depending upon inflection and emphasis, the judge may have been informing the jury instead that “killing someone” is what the prosecutor should have said. Also when the trial court sustained the objection as to the form of that, its reference might have been to the form of the entire statement, as opposed to only modifying the words “killing someone” as the majority assumes. In any event, in view of the evidence presented and the instructions given, I would not find such an ambiguity to require reversal.