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FIFTH DIVISION
DECEMBER 10, 2004

Following a jury trial in the circuit court of Cook County, defendant Sharon Voit wasfound guilty of solicitation of murder for hire and attempted first degree murder. The trial courtsentenced defendant to concurrent terms of 23 and 10 years in prison, respectively. Defendantnow appeals.

The record on appeal discloses the following facts. Prior to trial, the State filed a motionin limine to exclude any expert testimony that defendant was vulnerable to influence andentrapment. The trial court initially reserved ruling on that motion, but ultimately granted themotion prior to trial.

At trial, Robyn Poe testified that she had been a figure skating coach for Katie and KirbyVoit, the daughters of defendant Sharon and her husband Kerry. Robyn testified that on March 8,2000, while at a skating competition in Buffalo, New York, Sharon asked Robyn whether sheknew any hit men who could "take [Kerry] out." Robyn was shocked, but treated it as if Sharonhad been joking. Sharon later blamed Robyn for Kirby's poor performance at the competition andleft an angry message on Robyn's cellular phone voice mail. Robyn discussed the matter withKerry, ultimately arranging a meeting with Kerry.

On March 11, 2000, Robyn met Kerry at a restaurant. Carl Poe (Robyn's husband and theVoit daughters' strength and conditioning coach) also attended, as did Matt Georgopolous (afriend of Kerry's) and Georgia Hopis (a friend of Sharon's and a fellow skating mother). Duringthe meeting Robyn asked Kerry if he knew that Sharon had asked her to hire a hit man to killKerry. Matt told Kerry that he had heard Sharon venting before. Matt testified that in thesummer of 1999, Sharon had said that she would not be happy until Kerry was dead and that sheneeded to find someone to kill him, and she had made similar comments twice before. Carl toldKerry that Sharon had said similar things to him. Carl testified that in the spring and fall of 1999,when venting her anger toward her husband, Sharon said that she wanted to have him "taken careof" and "gotten rid of." Carl had not taken those statements seriously at the time.

Allen Ording, the Voits' accountant, testified that on March 13, 2000, Sharon called himabout tax deductions for the Voits' cellular phone bills. During the conversation, Sharon askedwhether Kerry had changed the beneficiary on his life insurance policy. Ording responded that hedid not know whether the beneficiary had been changed.

Michelle Cohen, who knew the Voits through her daughter, who also skated, testified thatshe had known Sharon was unhappy in her marriage since at least 1996. On March 17, 2000,while watching a skating practice together, Michelle told Sharon that she looked nice. Accordingto Michelle, Sharon responded that she had someone to look nice for, named Scott Reeder. Toward the end of the conversation Sharon told Michelle that "something was going to change inthe very near future." Sharon could not tell Michelle what it was, but said that Michelle wouldfind out in the next few weeks.

On March 14, 2000, Chicago police detective John Duffy interviewed Kerry, who hadpreviously spoken to an assistant State's Attorney. The next day, Detective Duffy interviewedGeorgopolous and the Poes. Kerry gave Detective Duffy Sharon's home and cellular phonenumbers. On March 16, 20030 Detective Duffy arranged for Investigator Tim Kaufmann, of thespecial operations bureau of the Cook County sheriff's police department, to assist in the case.

Detective Duffy and Investigator Kaufmann decided to make a "predicate phone call" toSharon, the "target" of the investigation. Investigator Kaufmann placed the call, while DetectiveDuffy listened on an extension and took notes. The officers testified that in this phone call,Kaufmann stated that he understood that Sharon "had a problem" that she wanted "taken care of." Sharon asked whether Scott Reeder had given him her phone number; Kaufmann replied that hedid not want to mention any names. Kaufmann asked whether it was a serious problem; Sharonreplied that it was and that she needed it taken care of.

Kaufmann testified that Sharon wanted to meet him in person; Duffy testified thatKaufmann suggested the meeting. Kaufmann testified that when he suggested meeting in a publicplace, Sharon suggested the parking lot of a Jewel store at the intersection of Willow andWaukegan at 1:30 p.m. the next day. Kaufmann described himself and asked what she would bedriving. Sharon told him she would be driving a silver Chevrolet sport utility vehicle.

The officers obtained a consensual overhear warrant, which was valid for 10 days. Theofficers assembled a surveillance team to record the meeting on audio and video tape. Kaufmannwas wired with a body microphone, tape recorder and transmitter for a surveillance van. Threeother undercover cars would monitor the entrances to the Jewel parking lot.

The audio and video tapes of Kaufmann's meetings with Sharon were played for the jury. Police technicians enhanced the sound on some of the audio cassettes to boost the volume ofSharon's voice. The tapes were also transcribed; copies of the transcripts were provided to thejury.

In the first conversation, Sharon is overheard saying that Kerry's parting words to her inBuffalo were, "I should bash you right now, you deserve it, you should be in jail." Kaufmann saidthat he would solve her problems if she wanted it done. Sharon said "yep," and that "it's gotta bedone."

Kaufmann asked whether she had the money; Sharon said she could get it. Sharon saidthat she did not know an exact amount. Kaufmann asked how much money Sharon could raise. Sharon replied that "Scott" had mentioned "somewhere around seven possibly." Kaufman saidthat would be reasonable. Kaufmann then said that this would be their last contact, so that if shetold him she wanted it done, it is done. Sharon replied that there was no doubt in her mind.

Kaufmann then told Sharon that he was a Vietnam veteran, that the government had paidhim to kill people, so he had no problem doing anything. Sharon became quiet, then mentionedthat Kerry was going on a scuba diving trip the next week.

Kaufmann said that he was going to have Sharon write down some information; Sharonreplied, "Uh-huh." Kaufmann asked whether Sharon had a photo of Kerry to give him; Sharondid not think so. Kaufmann said he was going to ask about Kerry's habits and for her phonenumber, as he had thrown it away after his call the previous day. Sharon stated that she had acellular phone which only she used and that no one else saw the bill. Kaufmann asked her not toconfide in anyone about the matter, especially a boyfriend or someone like that; Sharon agreed. Kaufmann asked if there was anything in particular that she wanted done. Sharon stated that shejust wanted "to have the misery finished" and that she did not want to know how it would happen.

Kaufmann said that he would do it out of state, so that she would not have to deal withlocal authorities; Sharon said, "All right." Kaufmann told Sharon he would need a "deposit" largeenough to buy an airplane ticket. Kaufmann told Sharon to tell him when to do it. Sharon, aftermentioning that her daughter was getting married in July, ultimately answered, "Next week."

Kaufmann then discussed with Sharon what Kerry did for a living, about his habits, his car,his office, and where he was currently staying. Kaufmann asked whether Kerry always took thesame route to work. Sharon said that she thought he did. Kaufmann asked whether Kerry carrieda lot of cash or credit cards on his person. Sharon said that he did. Sharon said that Kerry wasstaying with his mother. Sharon said that she could not remember the mother's address, but thatshe had it in the back of the car; Sharon later gave it to Kaufmann. Sharon said that Kerry usuallyleft for work at 5:30 or 6 a.m. and would probably be leaving from his mother's house, unless hestayed overnight with Georgopolous. Sharon told Kaufmann that Kerry was going to be in theBahamas from Monday to Friday of the next week, but she was not sure what time Kerry wascoming back on Friday.

Kaufmann told Sharon he would giver her a post office box number to mail the rest of themoney. Kaufmann asked whether anyone else drove Kerry's car; Sharon said that Georgopolousdid on occasion. Kaufmann said that he would need a photo of Georgopolous also. Sharon saidthat she could get a photo. Kaufmann asked whether she wanted him to wait and meet her againin the parking lot. Sharon agreed.

Kaufmann told Sharon that he would make it look like a robbery. Kaufmann askedwhether she wanted him dead in any particular way, whether she wanted the remains. Sharon saidthat she did not care and did not want to see him again. Kaufmann said that it would be out ofstate and look like a robbery, but that he would not say more, so that she would look shockedwhen she was told what happened. Kaufmann and Sharon then discussed the amount of the"deposit" and timing of the later payments to the post office box. The two then agreed to meetagain in an hour or an hour and a half in the same spot.

During that meeting, Sharon wrote out information about Kerry's employment and car. She also gave Kaufmann a key to Kerry's car. Kaufmann gave her a paper listing a bogus postoffice box number.

Approximately an hour later, Sharon returned to the parking lot. Kaufmann got into hercar and had another discussion with Sharon. During this conversation, Sharon gave Kaufmann aphotograph of her husband and Georgopolous, with a third person cut out. She identifiedGeorgopolous as the one "in the yellow." Sharon gave Kaufmann $600. The two furtherdiscussed Kerry's habits. Kaufmann said that he would telephone Sharon and say, "[T]his is me,"and Sharon would say "yes" or "no." When Kaufmann said that Sharon seemed upset, Sharonreplied that she had been upset for "a lot of years." Sharon said that she was "remembering myselfwhen he bloodied my face." Kaufmann asked whether she understood that what he was going todo was going to be final. Sharon said, "yes."

At the end of the conversation, Kaufmann left Sharon's car and returned to his own. Thesurveillance teams then approached defendant's car and arrested her. The piece of paper with thebogus post office box number was found on the floor of Sharon's car.

After the State rested its case, defendant presented the testimony of Dr. Susan Nowak outof the presence of the jury as an offer of proof. The parties stipulated that Dr. Nowak wasqualified as an expert in forensic psychology. Dr. Nowak testified that she reviewed policereports from a 1995 domestic battery incident, treatment notes from court-ordered familycounseling in 1995 and 1996, abuse counseling notes from 1998, the police reports in this caseand records of forensic psychological examinations and psychiatric admissions while Sharon wasin jail awaiting trial. These examinations concluded that Sharon was fit to stand trial, was legallysane at the time of the offense, and was not challenged by symptoms of battered woman syndromeor post-traumatic stress disorder. Dr. Nowak also interviewed Sharon twice, as well as three ofSharon's friends, her mother and brother.

Dr. Nowak opined that Sharon had a personality disorder, not otherwise specified, withdependent, obsessive-compulsive and paranoid features. Dr. Nowak's report stated that Sharoncharacterized her marriage "as a series of escalating episodes of physical and mental abuse,punctuated by appeasing, conciliatory behavior by Kerry and periods of calm."

Sharon told Dr. Nowak that she met Kerry when she was 15 years old, Kerry was the onlyman she ever dated, and the two married when she was 20 years old. Sharon went to work as adental hygienist and put Kerry through dental school. Sharon said that she later worked inKerry's office and once discovered Kerry in a closet, using cocaine with one of his dentalassistants. Sharon claimed that Kerry also purchased jewelry and a fur coat for the dentalassistant, as well as cosigning a loan for her car.

Sharon told Dr. Nowak that she and Kerry were involved in orgies and cocaine. Sharonclaimed that Kerry pressured her into having three-way sex with him and Georgopolous onseveral occasions, which he and Georgopolous began videotaping. Sharon claimed that Kerryalso encouraged her to have sex with Georgopolous when Kerry was not around, then report thedetails to him later.

Sharon told Dr. Nowak that Kerry first hit her approximately a week after they gotmarried. Sharon recounted a 1995 fight in which Kerry knocked her to the ground three timesand punched her in the eye. Sharon blacked out briefly, then went to a neighbor's house andcalled the police.

Sharon claimed that Kerry was enraged that he had to participate in court-orderedcounseling. However, after the counseling, the Voit household was relatively peaceful throughmuch of 1997. The situation then began to deteriorate again; Sharon believed that Kerry mightsteal their daughters and that Kerry twice tried to sabotage her car to cause an accident.

Sharon told Dr. Nowak that in 1998, Kerry had begun taking his dental assistant on trips. Sharon claimed that on a family vacation, Kerry was very abusive, at one point having "violentsex" with her, holding her down and putting a pillow over her face. According to Sharon, Kerryalso humiliated her by expressing a desire to have more children to people who knew that Sharoncould not have any more children.

After that trip Sharon filed for divorce, but Kerry and an attorney talked her out of it.

According to Dr. Nowak, Sharon believed there was a plot to frame her for the currentoffense. Sharon claimed that she first believed that Kaufmann was a divorce lawyer, referred toher by Scott Reeder. Dr. Nowak believed that Sharon and Scott were initially friends, but laterdeveloped a sexual relationship.

Dr. Nowak opined that Sharon's reactions once she learned Kaufmann was a hit man werevague, confused and befuddled. Sharon claimed that the idea of having Kerry killed was fed toher as the solution to all of her problems, but she could not do it. According to Dr. Nowak,Sharon suspected that the meeting was a setup by Kerry to have her killed. When Sharon wasasked about having given Kaufmann the money, Sharon began talking about how the tapes hadbeen altered. According to Dr. Nowak, Sharon believed that the people who reported her, thepolice and the judge were all part of a plot against her.

Dr. Nowak also reviewed a report generated by Dr. Alan Morris, which contained similarinformation regarding the Voits' abusive relationship. Dr. Morris had found that Sharon struggleswith extreme emotions that overwhelm her at times. Although Dr. Morris did not find her to bepsychotic, he believed Sharon suffered a significant impairment of her ability to perceive andassess her environment. Dr. Morris opined that Sharon was highly vulnerable to direction andguidance by a strong male figure.

Based on her review, Dr. Nowak opined, to a reasonable degree of medical certainty, thatSharon's background, psychology and sufferance of domestic abuse made her vulnerable toentrapment and influence. At the conclusion of her testimony, the trial court reaffirmed its rulingexcluding the testimony.

Following closing argument, jury instructions and deliberations, Sharon was found guiltyof solicitation of murder for hire and attempted first degree murder. The trial court denied herposttrial motion and sentenced her to concurrent terms of 23 and 10 years in prison, respectively.

On appeal, defendant first contends that the State failed to prove her guilty beyond areasonable doubt of solicitation of murder for hire. However, as the State notes in addressing theentrapment issue, "[a] precondition to raising the entrapment defense is that the defendant mustadmit that a crime was committed and that he or she committed it." People v. Gillespie, 136 Ill.2d 496, 501, 557 N.E.2d 894, 896 (1990). This is because it would be both factually and legallyinconsistent for a defendant to deny committing the offense and then to assert as a defense thatshe committed the offense because of incitement or inducement by authorities. Gillespie, 136 Ill.2d at 501, 557 N.E.2d at 897.

Defendant claims that Gillespie does not hold that a defendant whose jury was instructedon entrapment cannot argue the sufficiency of the evidence. This is true in the narrowest sense--Gillespie involved the refusal of an entrapment instruction--but it ignores the logic of Gillespie,which merely restates well-settled Illinois law. The fact that defendant here was allowed to denycommitting the offense and assert entrapment does not require this court to perpetuate the error.

In this case, as in Gillespie, the defendant asserts factually and legally inconsistent positions,which is not allowed under Illinois law. Having asserted the affirmative defense of entrapment inthe trial court, defendant cannot claim on appeal that a crime was not committed or that she didnot commit it.

Sharon next contends that the trial court erred in granting the State's motion in limine toexclude the expert testimony of Dr. Nowak that Sharon was vulnerable to entrapment. Section 7-12 of the Criminal Code of 1961 provides as follows:

"A person is not guilty of an offense if his or her conduct isincited or induced by a public officer or employee, or agent ofeither, for the purpose of obtaining evidence for the prosecution ofthat person. However, this Section is inapplicable if the person waspre-disposed to commit the offense and the public officer oremployee, or agent of either, merely affords to that person theopportunity or facility for committing an offense." 720 ILCS 5/7-12 (West 1998).

Motions in limine are addressed to the trial court's inherent power to admit or exclude evidence;generally, a reviewing court will not disturb the trial court's ruling on motions in limine absent anabuse of discretion, so long as the trial court exercises its discretion within the bounds of the law. Beehn v. Eppard, 321 Ill. App. 3d 677, 680, 747 N.E.2d 1010 (2001), citing People v. Williams,188 Ill. 2d 365, 369, 721 N.E.2d 539 (1999). An abuse of discretion occurs when the ruling isarbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view. People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). An application ofimpermissible legal criteria also justifies reversal. Boatmen's National Bank of Belleville v.Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194, 1199 (1993). However, a reviewing court cansustain the decision of the trial court to admit or exclude evidence for any appropriate reason,regardless of whether the trial court relied on that reason or whether the trial court's reasoningwas correct. See People v. Novak, 163 Ill. 2d 93, 101, 643 N.E.2d 762, 767 (1994).

Regarding the admissibility of expert testimony regarding a defendant's vulnerability toentrapment, Sharon cites People v. Lambrecht, 231 Ill. App. 3d 426, 437, 595 N.E.2d 1358, 1366(1992), where the court granted the State's motion in limine to exclude expert testimony as towhether the defendant had the capacity, on his own, to formulate a plan to deliver drugs. Theexpert in Lambrecht was allowed to testify at length regarding the defendant's limited intelligenceand personality weaknesses, including the expert's opinion that defendant had a dependentpersonality disorder; the only opinion excluded was the opinion on the ultimate issue. Lambrecht,231 Ill. App. 3d at 438-39, 595 N.E.2d at 1367. This court held that the jury was entitled todetermine the weight to be given to the evidence of defendant's personality weaknesses and tobalance that evidence against the evidence that he was predisposed to commit the crime, butconcluded that the expert opinion testimony on the ultimate issue was properly excluded becauseit would have invaded the province of the jury. Lambrecht, 231 Ill. App. 3d at 439, 595 N.E.2dat 1367.

Although the testimony admitted in Lambrecht included an opinion that defendant had adependent personality disorder, the nature of the testimony in that case differs from that whichdefendant sought to admit in this case. The testimony admitted in Lambrecht addressed thedefendant's capacity to formulate the illegal activity. Indeed, the Lambrecht court went on tohold that it was proper in that case for the trial judge to ask the expert whether the defendantcould distinguish right from wrong, going so far as to state that had the judge not asked thequestion, the jury would have been left with an unfair impression. Lambrecht, 231 Ill. App. 3d at439-30, 595 N.E.2d at 1368. The testimony excluded in this case did not address defendant'smental capacity to formulate the illegal activity, only her susceptibility to persuasion.

There is federal precedent holding that psychiatric testimony seeking to demonstratesubjective susceptibility to inducement may be relevant and admissible. See United States v.Nunn, 940 F.2d 1148, 1149 (8th Cir. 1991); United States v. Newman, 849 F.2d 156, 164 (5thCir. 1988); United States v. Benveniste, 564 F.2d 335, 339 (9th Cir. 1977). However, thesecases also hold that, even if the psychiatric testimony regarding a defendant's peculiarsusceptibilities to entrapment is admissible, the testimony is nevertheless properly excluded if itwould "confuse the jury and not shed any light on the issue." Nunn, 940 F.2d at 1149; Newman,849 F.2d at 164-65; Benveniste, 564 F.2d at 339.

In this case, the trial court ruled that the expert testimony would have invaded theprovince of the jury, which is a proper basis for excluding such testimony. Indeed, a reasonabletrial judge could have concluded that the evidence sought to be admitted here would haveconfused the jury. The evidence defendant sought to admit--primarily a history of physical,mental and emotional abuse Kerry ostensibly inflicted upon Sharon--could have been interpretedby the jury as showing Sharon's motive for soliciting the murder, thereby proving herpredisposition, rather than her susceptibility, to entrapment. Moreover, the evidence is highlyinflammatory. The danger existed that the jury would let its opinion of Kerry color its verdict.

In short, defendant has not shown an abuse of discretion in excluding the expert testimonyin this case, particularly where, as here, the proffered evidence may not have been viewed by thejury as exculpatory.

Sharon next contends that the State engaged in prosecutorial misconduct by suggesting toScott Reeder that Scott was implicated in the offense, leading him to assert his fifth amendmentprivilege and refuse to testify on Sharon's behalf. The State maintains that it did not threatenReeder or intimidate him into not testifying. The State correctly points out that it is not improperfor a prosecutor to advise prospective witnesses of the penalties for perjury or to voice disbeliefabout the veracity of their proposed testimony. People v. Eubank, 46 Ill. 2d 383, 392, 263N.E.2d 869 (1970). Neither is it inappropriate for a prosecutor to suggest a witness be appointedcounsel to be advised of the privilege against self-incrimination. People v. Hammond, 196 Ill.App. 3d 986, 993, 554 N.E.2d 534 (1990), People v. Pantoja, 35 Ill. App. 3d 375, 380, 342N.E.2d 110 (1976). The two-prong test for establishing a violation of a defendant's right topresent witnesses in her own behalf in such cases is: (1) whether the admonitions actually causedthe prospective witness to decline to testify, and (2) whether the admonitions are "somehowimproper." People v. King, 154 Ill. 2d 217, 224, 608 N.E.2d 877, 880 (1993). The facts andcircumstances of each case must be considered. King, 154 Ill. 2d at 225, 608 N.E.2d at 881.

In this case, the record shows that when Reeder was subpoenaed by the defense, Reeder'sattorney contacted the State to obtain copies of the audiotaped discussions between defendantand Kauffman. Reeder's attorney also asked about areas on which the State might cross-examineReeder at trial. The State responded to these requests by providing the discussions, in whichSharon asked whether Kaufmann was referred to her by Scott and at another point to Scott'sestimate of Kaufmann's price. The State also stated that Reeder would be cross-examined as towhether Reeder and defendant had an affair and whether he lied about such a relationship to thepolice. The trial court properly ruled that there was nothing improper in the State's conduct onthese points, as the State had evidence upon which to base its actions.

Sharon claims that the 20- to 40-year sentencing range for solicitation of murder for hire isunconstitutional in that it violates the proportionate penalties and due process clauses of theIllinois Constitution. A statute is presumed constitutional; the party challenging the statute bearsthe burden of demonstrating its invalidity. People v. Moss, 206 Ill. 2d 503, 519-20, 795 N.E.2d208, 219 (2003). This court has a duty to construe a statute in a manner that upholds its validityand constitutionality if it can reasonably be done. Moss, 206 Ill. 2d at 520, 795 N.E.2d at 219. The question of whether a statute is constitutional is subject to de novo review. Moss, 206 Ill. 2dat 520, 795 N.E.2d at 219.

The proportionate penalties clause of the Illinois Constitution provides that "[a]ll penaltiesshall be determined both according to the seriousness of the offense and with the objective ofrestoring the offender to useful citizenship." Ill. Const. 1970, art. I,