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Docket No. 96879-Agenda 6-September 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DAMARIS CUADRADO, Appellant.

Opinion filed January 21, 2005.
 

JUSTICE KILBRIDE delivered the opinion of the court:

Defendant, Damaris Cuadrado, was convicted in the circuit courtof Cook County for solicitation of murder for hire (720 ILCS5/8-1.2(a) (West 2002)). She appealed, and the appellate court held,inter alia: (1) when a challenge to the sufficiency of an indictment israised during trial, after the close of the State's case and denial of adefendant's motion for a directed verdict, an indictment will stand ifit is specific enough to apprise the defendant to allow preparation ofa defense; (2) the State's substitution of the word "procured" for theword "solicited" in the indictment did not impede defendant's abilityto prepare a defense; (3) the evidence was sufficient to support aconviction; and (4) defendant was not deprived of the right toconfront a State's witness. 341 Ill. App. 3d 703. We alloweddefendant's petition for leave to appeal (177 Ill. 2d R. 315(a)) andnow affirm the appellate court's judgment.

I. BACKGROUND

Defendant was indicted for solicitation of murder for hirebecause, with the requisite intent, she allegedly solicited BenjaminJimenez to commit first degree murder for money. The evidence attrial showed defendant offered to pay Jimenez $10,000 to murder herhusband. Jimenez told defendant he would look into it, and the twoagreed to meet again. Jimenez recorded their second meeting andasked for confirmation that defendant wanted her husband killed, notjust beaten. Defendant replied she wanted her husband "gone" and"out of the picture." Jimenez told her he had not found anyone tocommit the murder, but he would continue to look.

At a later meeting, defendant inquired whether Jimenez had foundanyone to kill her husband. Jimenez said he had not. Sometime later,defendant paged Jimenez and told him she no longer needed hisservices because she had someone else murder her husband. At thatpoint, Jimenez told defendant he had recorded their previousconversation and would give the tape to the police unless she paid himsome money. Defendant responded that she needed some time to getthe money. Eventually, defendant paid Jimenez a total of $4,000, andthen told him she would meet him one more time to give him anotherpayment.

Subsequently, defendant arranged to have her boyfriend, DarrylMitchell, shoot Jimenez. As a result of that attack, Jimenez wasparalyzed and remains in a wheelchair. After being shot, Jimenezinitially maintained he had been injured by members of a street gang.Jimenez later identified the shooter as Mitchell from a photo array andfrom a lineup.

At trial, Jimenez's mother, Teresa, testified she called police ather son's request. Jimenez had stated to her that defendant hadarranged his shooting and he wanted to prevent her from "gettingaway with this." Teresa testified she had listened to the conversationtaped by her son but at that time did not recognize the female voice onthe tape. Later, after the police became involved and Teresaparticipated in a confidential overhear of a telephone call betweenJimenez and defendant, Teresa identified defendant's voice as the oneon the tape. Additionally, Teresa overheard defendant beingquestioned at the police station and again identified defendant's voiceas the one on the tape and in the confidential overhear.

Defendant was convicted and appealed, raising three main claims:(1) the sufficiency of the indictment; (2) the sufficiency of theevidence; and (3) a violation of her constitutional right to confront thewitnesses against her. The appellate court affirmed. 341 Ill. App. 3d703.

The appellate court held that defendant was not prejudiced by theState's substitution of the word "solicit" for the word "procure" in theindictment. 341 Ill. App. 3d at 714. The court also determined thatsufficient evidence existed for a rational trier of fact to find thatdefendant "procured" Jimenez to commit first degree murder pursuantto an agreement for money. 341 Ill. App. 3d at 716. Finally, the courtheld that defendant's constitutional right to confrontation was notviolated by her inability to see the entire face of witness Jimenez dueto the placement of his wheelchair in the courtroom. 341 Ill. App. 3dat 717. We allowed defendant's petition for leave to appeal. 177 Ill.2d R. 315(a).

Before this court, defendant renews her challenges to: (1) thesufficiency of the indictment; (2) the jury instructions substituting theword "solicit" for the word "procure"; (3) the positioning of Jimenez'swheelchair at trial; and (4) the admission of Teresa Jimenez's hearsaytestimony because it denied defendant's rights to due process, a fairtrial, and to confront the witnesses against her. Although raised in theappellate court, defendant has not challenged the sufficiency of theevidence in this appeal.

II. ANALYSIS

A. Sufficiency of the Indictment

The primary issue in this appeal is whether the trial court erred by refusing to dismiss the indictment because it failed to allege an element of the crime, namely, procurement of an individual to commit murder. The relevant statutory provision states:

"Solicitation of Murder for Hire. (a) A person commitssolicitation of murder for hire when, with the intent that theoffense of first degree murder be committed, he procuresanother to commit that offense pursuant to any contract,agreement, understanding, command or request for money oranything of value." (Emphasis added.) 720 ILCS 5/8-1.2(a)(West 2002).

Defendant's indictment provided, in relevant part:

"Damaris Cuadrado *** committed the offense ofsolicitation of murder for hire in that [she], with the intentthat the offense of first degree murder be committed, to wit:that Edgardo Cuadrado be killed, solicited Benjamin Jimenezto commit said offense of first degree murder, pursuant to anagreement or contract for money." (Emphasis added.)

A comparison of the statutory provision and the charginginstrument reveals the word "procures" in the statute was replaced inthe indictment by the word "solicited." Defendant argues that becausethe essential element of "procurement" was not included in theindictment she was not properly charged and, pursuant to People v.Scott, 285 Ill. App. 3d 95 (1996), the indictment should have beendismissed. The State counters that Scott was wrongly decided becauseit misapplied this court's decision in People v. Benitez, 169 Ill. 2d 245(1996).

In Scott, the defendant was ticketed for disorderly conduct andwith resisting or obstructing a peace officer, and the case proceededto bench trial. Scott, 285 Ill. App. 3d at 97-98. After the Statepresented its case in chief, the defendant filed a motion seeking adirected finding on the disorderly conduct charge. In his motion,defendant claimed the State had failed to allege a statutory offensebecause the ticket did not specify the applicable subsection of thedisorderly conduct statute and the nature and elements of the offense.Scott, 285 Ill. App. 3d at 98. The trial court concluded the defendanthad waived that claim when he proceeded to trial on the ticket ratherthan requesting a more specific formal information, bill of particulars,or verified complaint. The defendant was later convicted of bothcharges. Scott, 285 Ill. App. 3d at 98.

The appellate court reversed the disorderly conduct conviction,reasoning, in relevant part, that due process is implicated when acharging instrument fails to state a valid offense. Under thosecircumstances, the defective charge could be attacked at any time.Scott, 285 Ill. App. 3d at 98, citing People v. DiLorenzo, 169 Ill. 2d318, 321 (1996). According to the appellate court, "[s]uch a challengeto a complaint may be made before or during the trial-even at [the]end of the State's case." Scott, 285 Ill. App. 3d at 98-99.

The Scott court then noted that when the sufficiency of a criminalcomplaint is challenged the court must determine whether there isstrict compliance with the requirements of section 111-3(a) of theCode of Criminal Procedure of 1963 (725 ILCS 5/111-3(a) (West2000)). See also Scott, 285 Ill. App. 3d at 99, citing Benitez, 169 Ill.2d 245. That section requires the charge to be in writing, to name thecharged offense and the statutory provision allegedly violated, and toset forth the nature and elements of the charged offense. 725 ILCS5/111-3(a) (West 2000).

Turning to the merits of the defendant's challenge to the charginginstrument, the Scott court agreed that the instrument was fatallydefective under the strict compliance standard of section 111-3(a).Scott, 285 Ill. App. 3d at 99. While the instrument named the offenseand the general statute, it failed to cite the appropriate subsection andto allege the specific nature and elements of the offense with anyparticularity. Scott, 285 Ill. App. 3d at 99-100.

According to the State, we should reject Scott because that courtreached its conclusion based on an erroneous reading of Benitez, 169Ill. 2d 245. In Benitez, two days into trial, the defendant learned thatthe original indictment had not named him as a defendant and had notalleged the correct victim. Thus, the original indictment had notproperly charged defendant with any offense. Rather than followingthe proper procedures for obtaining an amended indictment, however,the State simply prepared its own corrected indictment that wassigned by neither the State's Attorney nor the grand jury foreperson.Benitez, 169 Ill. 2d at 246-47. Both the trial court and the appellatecourt treated the amended indictment as valid, finding that it "properlycharged and informed [the defendant] of the nature and elements ofthe charges." Benitez, 169 Ill. 2d at 250. Accordingly, the lowercourts concluded the indictment was not subject to attack as void.Benitez, 169 Ill. 2d at 250. This court reversed.

In relevant part, this court reasoned:

"It is undisputed that the State did not return the initial,endorsed indictment to the grand jury for correction. Nor didthe State file a motion to amend the initial indictment in thecircuit court pursuant to section 111-5. Rather, the Statearrogated for itself the power to amend the indictment as itsaw fit. Secretaries in the State's Attorney's office preparedthe second indictment to replace the first indictment. Thesecond indictment added two new defendants and changedthe name of a victim. We cannot sanction such a practice.Assistant State's Attorneys and their staff do not have theauthority to amend grand jury indictments at will.Accordingly, we find that the second indictment was not validas to the present defendant. Because the initial indictmentfailed to name defendant and the second indictment was notvalid, defendant was never properly charged with anyoffense." Benitez, 169 Ill. 2d at 255.

In reversing the appellate and trial courts, we noted that thetiming of a challenge to the indictment "has been consideredsignificant in determining whether a defendant is entitled to reversalof his conviction on that ground." Benitez, 169 Ill. 2d at 257. Underthe relevant case law and statutory provisions, posttrial motionsattacking the sufficiency of an indictment are subject to a prejudicestandard. Benitez, 169 Ill. 2d at 257. Applying this standard, thecharging instrument is sufficient if it " 'apprised the accused of theprecise offense charged with sufficient specificity to prepare hisdefense and allow pleading a resulting conviction as a bar to futureprosecutions arising out of the same conduct.' " Benitez, 169 Ill. 2dat 257, quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976); see alsoIll. Rev. Stat. 1991, ch. 38, par. 116-2 (as amended by Pub. Act86-391,