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SIXTH DIVISION
MARCH 5, 2004

Following a jury trial, defendant, April Goodman, was found guilty of solicitation of murderfor hire (720 ILCS 5/8-1.2 (West 1998)), sentenced to 30 years' incarceration, and fined $25,000. Defendant timely appeals contending: (1) the trial court abused its discretion when it instructed thejury with a nonpattern instruction; (2) this matter must be remanded for fitness hearings because thetrial court failed to make sufficient rulings regarding defendant's fitness for trial and sentencing; (3)the trial court improperly admitted evidence of other crimes and the State made improper argumentsregarding that evidence; (4) the trial court improperly admitted evidence of a telephone conversationwithout an adequate foundation; and (5) the State improperly commented on defendant's failure totestify. We affirm.

The essential allegations of the State's case against defendant are relatively straightforward. On August 4, 1998, defendant met with an undercover police officer posing as a "hit man." Defendant and the hit man discussed killing her ex-husband, Albert Goodman, and agreed on a priceof $5,000. On August 10, 1998, defendant met with the hit man again, gave him a $1,000 downpayment, and asked him to kill Goodman. Both conversations were recorded electronically. Following the second encounter, the police arrested defendant and the State charged her withsolicitation of murder for hire.

Defendant filed a motion to suppress statements she made to the police after her arrest. OnApril 23, 1999, the trial court conducted a hearing on defendant's motion. At the hearing, a policeofficer, an assistant State's Attorney, and defendant testified. The trial court denied defendant'smotion. At the conclusion of the hearing, defense counsel requested a "BCX" (behavioral clinicalexamination) to determine if defendant was fit to stand trial. The trial court ordered the examinationand continued the matter.

On August 5, 1999, the trial court conducted a fitness hearing. The parties stipulated that Dr.Matthew Markos "would testify" that based on his experience and training he is qualified as an expertin the field of psychiatry. The parties stipulated that Markos "would testify" that he had revieweddefendant's medical records and conducted a clinical interview. The parties stipulated that Markoswas of the opinion that defendant was fit to stand trial with medication. The parties stipulated thatdefendant had a history of a mental disorder, bipolar type, and was currently in remission withmedication. The parties waived argument, and the trial court found that defendant was fit to standtrial without questioning defendant or hearing additional evidence.

Before trial, the State moved to allow the introduction of evidence that defendant hadpreviously asked other individuals to kill Goodman. The State argued that this evidence was relevantto establish defendant's motive and intent. Defendant responded arguing that the evidence was notrelevant and, if relevant, the probative value of the evidence was outweighed by its prejudicial effects. On June 16, 2000, the trial court ruled that the evidence of other crimes was admissible.

The trial court commenced a jury trial on October 2, 2000. Albert Goodman testified that hemet defendant through the Great Expectations dating service in January 1995. He and defendantwere married in June 1995. Goodman testified that problems with the marriage developed almostimmediately. Goodman filed for dissolution of the marriage in August 1995. The couple separatedand attempted reconciliation several times. Goodman testified that, in June 1996, defendantattempted to push him down the stairs at a home they shared. Goodman struggled with defendantbut testified that he never struck her or attempted to push her down the stairs. Goodman was laterarrested in connection with the incident. He was ultimately found not guilty of all charges.

Goodman further testified that, after the incident in June 1996, defendant informed him thatshe was pregnant. Goodman testified that defendant had a miscarriage as the result of a "tubularpregnancy." Goodman testified that, to his knowledge, nothing he had done caused defendant tomiscarry. The parties' marriage was ultimately dissolved in September 1997. On August 10, 1998,Goodman received a telephone call from defendant. Defendant told Goodman that she needed$10,000 for liposuction. Goodman testified that, as part of the divorce settlement, he was requiredto pay for defendant's medical and psychiatric needs. Goodman told defendant that he had alreadypaid for liposuction and would not give her any additional money. Defendant responded, "Thatsettles it then, you are evil," and hung up the telephone.

Nicholas Ellis testified that, in May or June of 1997, he met defendant in a bar in Oak Park. Ellis made a joke about knowing someone who could break kneecaps. Defendant seemed interestedin the comment and asked Ellis if he was in the mafia. Defendant gave Ellis her telephone numberand they later agreed to meet for dinner. The following weekend Ellis took defendant to dinner. During dinner, defendant asked several times about a favor she needed. Ellis asked about the favor,and defendant said she would tell him about it later. After dinner, the couple saw a movie. After themovie, Ellis asked about the favor again. Defendant's demeanor changed, and she told Ellis that sheneeded someone to kill her husband. Ellis told defendant that she had the wrong idea about him andtook her home. Ellis did not ask defendant for a second date. Ellis did not report his conversationwith defendant to the police until after he learned of her arrest in August 1998.

Hugh O'Neill testified that, in May or June of 1997, he met defendant in a bar in Chicago. Defendant gave O'Neill her telephone number, and he called her to arrange a date the next week. O'Neill took defendant to dinner. During dinner, defendant asked O'Neill whether he would bewilling to do something for her. O'Neill asked what, and defendant asked if he would be willing tokill her ex-husband. Defendant told O'Neill that her ex-husband had pushed her down a flight of stairsand killed her baby. O'Neill told defendant he had no interest in helping her and ended the date. Defendant said that she would have to find some other way and that she might try "hanging out instrip clubs" to find some guy willing to kill her husband. O'Neill testified that he did not report hisconversation with defendant to the police until after he learned of her arrest.

Victor Lazzaroni, a general contractor, testified that, in June 1997, he was meeting friendsfor dinner at a steakhouse on Rush Street in Chicago. While he was seated in the bar area with hisfriends, Lazzaroni saw defendant standing near their table. One of Lazzaroni's friends, SeymourGoldstein, asked defendant to join them for a drink. Lazzaroni asked defendant if she was married,and she responded that she was but wished she was not. Defendant said that she wished her husbandwould die. Lazzaroni cautioned defendant that she should not speak that way because someonemight overhear. Defendant said that she owned some real estate that she wanted to develop. Goldstein told defendant she should speak to Lazzaroni because he was a builder. Defendant joinedLazzaroni and his friends for dinner. During dinner defendant discussed her plans to develop the realestate, but said that she could not do so until the divorce was final. Defendant said she wished shecould find someone to kill her husband. Lazzaroni again cautioned her about speaking like that. During dinner, Lazzaroni saw a business associate in the restaurant. They briefly discussed aconstruction project and Lazzaroni gave the man his telephone number. Lazzaroni left the restaurantafter dinner.

Lazzaroni further testified that he received a telephone call from defendant a few days later. Defendant left a voice mail message for him, said she was April, and asked him to call her. Lazzaronidid not immediately recognize the name "April," but returned the telephone call. Lazzaroni spoketo defendant, who told him that they had met at the restaurant and said that she would like to discussthe real estate development. Lazzaroni said that he was busy and asked her to call back the nextweek. Defendant telephoned Lazzaroni the next week and spoke about the real estate. Lazzaroniasked if defendant's divorce was final, and she responded "not yet, but I wish that he would die." Lazzaroni cautioned defendant not to speak that way. Defendant said she wanted to meet withLazzaroni and told him that she was in Itasca. Lazzaroni was on his way to a meeting in Itasca andagreed to meet defendant at a hotel bar. At the bar, defendant again said that she wished her husbandwould die or that she could pay someone to kill him. Lazzaroni told her not to speak that way andtold her to call him if she ever got the land. Approximately one week later, defendant telephonedLazzaroni again. Lazzaroni was in his car approaching his home and told defendant that he wouldcall her back. Lazzaroni called defendant from his home telephone. Lazzaroni testified that defendantagain said that she wished she could find someone to kill her husband.

Lazzaroni further testified that he began to worry that he might be criminally liable ifdefendant made good on her threats to find someone to kill her husband. Lazzaroni called RonHasko, an acquaintance who worked for the Federal Bureau of Investigation (the FBI). Lazzaroni'sacquaintance was not available but his partner, Joseph Stiller, returned the telephone call. Lazzaronispoke to Stiller and told him about his conversations with defendant. Stiller told Lazzaroni thatsomeone from the FBI would telephone defendant and warn her that they were aware of the threats. Lazzaroni never heard from defendant again.

Ronald Loch, an FBI special agent, testified that, in June 1997, he was assigned to a violentcrimes task force in Chicago. Loch conducted a follow up investigation of Lazzaroni's complaint. Loch received a telephone number, 847-758-1107, from Lazzaroni. Loch called the telephonenumber and a woman answered and identified herself as April Goodman. Loch told the woman thathe had information that she had "reached out to somebody to have her husband killed." The womanasked who that person was. Loch responded that he could not divulge that information. The womansaid that her husband had been spreading rumors about her and that he might be the source of theinformation. Loch opened a case file and documented the telephone conversation, but did notattempt to locate Albert Goodman.

On cross-examination, Loch admitted that he had never spoken to defendant before or afterthe telephone conversation. Loch admitted that he did not call 796-9600 to determine an addressassociated with the telephone number he called. Loch testified that he and Stiller had driven pastwhat they believed was defendant's home but did not locate her. Loch testified that he did not seethe woman he spoke to on the telephone but that she identified herself as April Goodman. Lochadmitted that he did not attempt to determine who had access to the telephone he had called.

Following cross-examination, defendant moved to strike Loch's testimony arguing that theState failed to lay a proper foundation for the admission of the conversation. The trial court deniedthe motion, stating:

"The Court finds under the totality of the evidence that the manner of obtaining thenumber, the person identifying herself as April Goodman, the content of the statementcombined is sufficient for foundation purposes, and you can argue weight to the jury."

Peter Bukiri, a retired Chicago police officer, testified that in August 1998 he was a violentcrimes detective. On August 3, 1998, Bukiri was assigned to investigate defendant. When Bukiriwas first assigned to the case he spoke to Barry Wolf (no testimony was given describing hisrelationship with the defendant). After speaking to Wolf, Bukiri accompanied Wolf to his home. Wolf made a telephone call to defendant while Bukiri listened on an extension. Wolf told defendantthat he had found "someone to take care of her problem." Wolf told defendant that she could meetthis person the next day at a restaurant on Rush Street. Defendant asked if Wolf could still get hera gun.

Bukiri further testified that on August 4, 1998, he met with an assistant State's Attorney andprepared an affidavit and orders for a consensual overhear. Bukiri obtained a court order authorizingthe overhear and concealed an electronic recording device on his body. At approximately 4 p.m.,Bukiri and Wolf entered the restaurant. Wolf introduced Bukiri to defendant and left the restaurant. Bukiri identified two tape recordings made of his conversation with defendant and identified atranscript prepared from the tape recording. Defendant told Bukiri she had several wishes, includinga financial transfer and an arranged marriage to Goodman where he would drown on the honeymoon. Bukiri told defendant that he did not do the things she was contemplating and asked defendant "youeither want him killed or you don't want him killed." Defendant replied "Well, I do." Defendant andBukiri continued their conversation. Bukiri and defendant agreed that defendant would pay Bukiri$5,000 to kill Goodman and defendant would give him a $1,000 down payment. Bukiri concludedthe conversation saying "Before I walk away from here--you are gonna pay me $5,000 to kill him?" Defendant said that she was concerned that Bukiri was setting her up, but then said "That's my idea."

Bukiri further testified that he met defendant again on August 10, 1998, in a parking lot. Bukiri was driving an undercover vehicle that had been outfitted with audio and video recordingdevices. Defendant said she wanted to talk and began a lengthy rambling commentary on her life andher acquaintance with Wolf. Defendant's soliloquy included the following comments: "I couldn'tmess around once I started something. I had to go through with it the whole way or I would bekilled." The conversation continued and Bukiri told defendant "if you hand me the $1,000, I'm gonnakill Albert in the next couple of days." Defendant replied "I'm gonna give you the $1,000. That'swhat I want to have happen but this whole time it was Barry doing it." Bukiri testified that defendanthanded him $1,000 in cash while they were sitting in the undercover vehicle. A videotape shown tothe jury depicted defendant handing Bukiri the money and Bukiri counting the money.

Joann Jontz testified that in 1997 she was defendant's roommate. Jontz testified thatdefendant repeatedly said that she wanted Goodman killed. The State asked Jontz whether "847-758-1107" was the telephone number at the townhouse she shared with defendant. Jontz replied "Fromwhat I recall, yes." Jontz further testified that no one else lived in the townhouse and that she neverreceived a telephone call from an FBI agent.

The State rested its case, and defendant rested without presenting evidence. The Statesubmitted a proposed instruction on compulsion that included a modification of Illinois Pattern JuryInstructions, Criminal No. 24-25.21 (3d ed. 1992) (hereinafter IPI Criminal 3d No. 24-25.21). Themodified instruction added the language "A threat of future death or great bodily harm is notsufficient to excuse criminal conduct." Defendant objected to the modified instruction. The trialcourt ruled that the proposed modification was in accordance with a similar instruction approved inPeople v. Carini, 151 Ill. App. 3d 264 (1986), and that the modified instruction would be given overdefendant's objection. The trial court instructed the jury, and the parties made closing arguments. Defendant made no objections during the State's arguments. The jury retired to deliberate andsubsequently found defendant guilty. The trial court ordered a presentence investigation andcontinued the matter until November 3, 2000.

On November 3, 2000, defendant filed a motion for a new trial. Defense counsel indicatedthat he believed defendant was having difficulty assisting him in preparation for sentencing andrequested another BCX. The trial court ordered a behavioral clinical examination and continued thematter for hearing on defendant's posttrial motions and sentencing. On December 7, 2000, the trialcourt conducted a hearing on defendant's posttrial motions. The trial court indicated that it hadreceived a report from Dr. Markos regarding defendant's fitness. Before the trial court heardarguments on the posttrial motions, the following colloquy occurred:

"THE COURT: So the record is clear, the opinion of Doctor Markos is thatdefendant is fit for sentencing.

MR. BYRNE [assistant State's Attorney]: We will stipulate to the report, Judge.

MR. BREEN [Defense counsel]: If I may, Judge, for the record indicate that thereport further states that she has a history of mental disorders. Bipolar disorder mixed typebut is currently in remission with psychotropic medications. ***

The doctor indicates such that she is not experiencing any medical side effects whichinterfere with her fitness."

MR. BYRNE: We will stipulate to that.

MR. BREEN: So will I, your Honor.

THE COURT: Given that, a couple of procedural matters, are both sides ready toproceed on the arguments on the motion for a new trial?"

The trial court did not make any further reference to defendant's fitness for sentencing. The trialcourt subsequently denied defendant's posttrial motion.

On January 19, 2001, the trial court conducted a sentencing hearing. The trial court heardevidence in aggravation and mitigation and continued the matter for sentencing. On January 22,2001, the trial court sentenced defendant to 30 years' incarceration and fined defendant $25,000. Defendant filed a motion to reconsider the sentence. The trial court denied defendant's motion toreconsider, and defendant timely appeals.

Although defendant has elected to organize her contentions of error differently, we willaddress the various contentions of error as they arose chronologically during trial. Defendantcontends that this matter must be remanded for a new fitness hearing and, if necessary, a new trial,because the trial court failed to make an independent judgment regarding her fitness to stand trial. "[T]he due process clauses of the Illinois and United States Constitutions prohibit the prosecutionof a defendant who is unfit for trial." People v. Cleer, 328 Ill. App. 3d 428, 431 (2002), citing Ill.Const. 1970, art. I,