People v. Jones ( 2006 )

Docket No. 90282.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT D. JONES, Appellant.
Opinion filed January 20, 2006.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas concurred in the judgment and opinion.
Justice McMorrow, specially concurred, joined by Justice
Freeman.
Justice Kilbride concurred in part and dissented in part, with
opinion.
Justices Garman and Karmeier took no part in the decision.
OPINION
This appeal arises from the second trial of defendant, Robert D.
Jones, for the murder of Dr. Henry Dickerman, Jr. Defendant was
charged and later found guilty of first degree murder (720 ILCS
5/9B1 (West 1996)) following a jury trial in 1996 in the circuit court
of Sangamon County. Defendant appealed, and the appellate court
remanded for a new trial. People v. Jones, 294 Ill. App. 3d 1125
(1998) (unpublished order under Supreme Court Rule 23). On
remand, following a second jury trial, defendant was again found
guilty of first degree murder. Defendant appealed, and the appellate
court affirmed, with one justice dissenting. 315 Ill. App. 3d 500.
Defendant appealed to this court, arguing that (1) the trial court
improperly ruled on a motion for substitution of judge; (2) the trial
court failed to bar statements made during the course of plea
negotiations; (3) the trial court erred by refusing to instruct the jury
on involuntary manslaughter; (4) the State failed to prove a material
element of the crimeBnamely, venue; (5) the trial court improperly
allowed the State to amend the charges against him; and (6) Apprendi
v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000), required that his conviction be overturned.
On September 20, 2001, we filed an opinion reversing the trial
court and the appellate court with respect to the first issue; we
remanded to the trial court for a hearing on defendant=s motion for
substitution of judge for cause. People v. Jones, 197 Ill. 2d 346
(2001). We did not reach the other issues raised in defendant=s
appeal. We retained jurisdiction and directed that the trial court report
its findings, after hearing defendant=s substitution motion, to the clerk
of this court within 90 days of the issuance of the mandate. We have
been advised that the trial court has conducted a hearing on
defendant=s motion, has concluded that no cause exists to support a
substitution of judge, and has denied defendant=s motion. We granted
defendant leave to supplement his brief on this issue. In his
supplemental brief, defendant maintains that cause exists to support
his motion for substitution of judge. We now address defendant=s
arguments on appeal.
BACKGROUND
Defendant was first convicted of the first degree murder of Dr.
Dickerman after a jury trial in August 1996 and was sentenced to 85
years= imprisonment. On appeal, defendant argued that the trial court
erroneously admitted into evidence a written statement he made to
the police on August 15, 1994. Particularly, on August 15, 1994,
police detectives visited with defendant while he was incarcerated.
Defendant, as directed by the detectives, hand drafted a two-page
statement providing the terms of the deal he would be willing to
accept in order to plead guilty. The detectives informed defendant
that the statement was for the State=s Attorney. This statement was
read into evidence at trial. The appellate court agreed that the
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statement contained the Arudiments of the negotiation process@ and,
therefore, was an inadmissible plea-related statement under Rule
402(f) (177 Ill. 2d R. 402(f)). The appellate court reversed
defendant=s conviction and remanded for a new trial. People v. Jones,
294 Ill. App. 3d 1125 (1998) (unpublished order under Supreme
Court Rule 23).
On remand, prior to the start of the new trial, defendant filed a
motion for automatic substitution of judge pursuant to section
114B5(a) of the Code of Criminal Procedure of 1963 (725 ILCS
5/114B5(a) (West 1998)). The trial judge denied the motion as
untimely. Subsequently, defendant filed a motion for substitution of
judge for cause pursuant to section 114B5(d) of the Code (725 ILCS
5/114B5(d) (West 1998)). Defendant argued that Judge Zappa, the
original trial judge and trial judge on remand, was prejudiced against
him, and that this prejudice was evident in his pretrial rulings during
the first trial and his comments during sentencing. Judge Zappa heard
the motion, and denied the motion as untimely.
Defendant then filed a motion to suppress statements he made to
the police on July 27, 1994, and August 16, 1994. The trial judge
denied the motion on the basis that the statements were admitted
against defendant in the first trial and defendant failed to challenge
the admissibility of those statements on appeal. He held that
defendant=s failure to challenge the statements precluded a later
challenge on remand. The matter proceeded to trial a second time,
and the record reveals the following.
In June 1992, defendant approached Dr. Dickerman, a single 85-
year-old man and retired surgeon, with a proposal to paint his house
and do various minor repairs. Dr. Dickerman agreed, hired defendant,
and paid a sum up front with a remainder to be paid at the completion
of the work. Ultimately, the scope of defendant=s duties expanded,
and he worked as a handyman for Dr. Dickerman doing various
repair work as it was needed.
At approximately the same time, in July 1992, for a period of six
weeks, defendant additionally worked for Tri-State Foods. When he
began as an employee for Tri-State, defendant informed the manager
that he would do additional work if the manager advanced him
money to buy the necessary supplies to complete the job. The
manager agreed and advanced defendant money. Defendant failed to
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repay the money by the end of July, as agreed, and he was contacted
by an attorney. On August 4, defendant delivered part of the money
he owed, $850, in cash to the manager with a promise to repay the
remainder shortly.
On August 11, 1992, Dr. Dickerman arrived at the Department of
Rehabilitation Services, where he worked as a consultant reviewing
federal disability claims. Individuals in the office testified that Dr.
Dickerman seemed himself and appeared in good health. Dr.
Dickerman then met several friends for lunch, and each of those who
attended lunch testified that he was in good spirits and appeared to be
in good health. The lunch ended at 1:15 p.m.
Charles Rutschke, a United States Postal Service worker, testified
that on August 11 he delivered the mail to Dr. Dickerman=s house at
approximately 4 p.m. Rutschke recalled that the house had a front-
door mail slot. While delivering mail on August 11, he was greeted
halfway up Dr. Dickerman=s walkway by defendant. Rutschke stated
that defendant appeared anxious. Defendant asked whether there was
any mail for Dr. Dickerman. Rutschke testified that he refused to give
defendant the mail and instead placed the mail into the front-door
mail slot.
On August 12, 1992, Dr. Dickerman failed to appear at his
weekly Wednesday evening bridge game. Concerned friends went to
his home to check on him. Upon their initial search of the home
everything appeared normal, except that Dr. Dickerman=s 1988 Buick
Century was not parked in the garage. The police released a
description of Dr. Dickerman and his car.
Soon afterwards the police discovered that several of Dr.
Dickerman=s checks were missing from his checkbook, and that
defendant had deposited three checks on August 4, 7, and 8 totaling
$5,025 against Dr. Dickerman=s account. The police attempted to
contact defendant at the address and the telephone number listed on
the back of the cashed checks. Detectives left messages on the
answering machine at the listed number and later learned that the
number was registered to defendant=s mother-in-law. Defendant was
informed by his mother-in-law that the police were looking for him,
and he immediately left the state. Defendant=s wife eventually
delivered a handwritten note from defendant addressed to the deputy
chief of investigations in Sangamon County. The note stated:
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AI, Robert Jones, would like to make this statement to
assist you in effort to locate Mr. Dickerman. The last time I
seen him was on Tuesday afternoon, He left his house at
about 4:00 p.m. and said he was going to a dinner with his
friends. I did not leave his house until around 4:30 p.m.
because I was finishing an interior painting job.
Any checks I received from Mr. Dickerman were written
from him to me. I have no idea about the numbers of these
checks, I did not pay attention to that. I can tell you that I had
nothing to do with his disappearance.
I have had some trouble in the past, but I have tried to put
my life on the right track and anyone who knows me as a
person knows I could never harm a fly.
***
I am not trying to avoid you because I miss my family,
but I=ve been beat up by the system before. Believe me, I will
assist you in any way I can to help bring an end of this
nightmare that is happening to me all over again.
I hope Mr. Dickerman comes home soon for all of our
sakes.
Thank you, Robbie Jones.@
A crime scene investigator with the Illinois State Police testified
that on September 1, 1992, while Dr. Dickerman was still Amissing,@
he searched his house. The crime scene investigator discovered
bloodspatters on the bathroom wall, window sill, and rug. He
returned on September 2, 1992, and discovered additional
bloodspatters he had previously missed. Investigators could not
determine when the blood was deposited and could only testify that
the blood on the rug matched Dr. Dickerman=s DNA. Stains found on
the wall and window sill were insufficient for comparison.
Tina Clark testified that for seven years she cleaned Dr.
Dickerman=s house every Thursday. She testified that she last cleaned
Dr. Dickerman=s entire house August 6, 1992. She stated that she
washed his bathroom tub and sink, washed the walls around the
bathtub, and scrubbed the floors in the upstairs bathroom. On August
6, 1992, she did not notice any blood on the walls or the rug.
On September 5, 1992, hikers found Dr. Dickerman=s partially
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decomposed body at the bottom of a cliff in Missouri. His car was
later located in Lambert-St. Louis International Airport=s long-term
parking lot. A forensic pathologist determined that the cause of death
was homicide.
Defendant returned to Springfield, Illinois, on October 5, 1992,
and was arrested. On October 6, Frank Wright, an agent with the
Federal Bureau of Investigation (FBI), and Springfield police
detective Tim Young interviewed defendant, with his attorney
present, about his involvement in Dr. Dickerman=s disappearance. 1
Defendant explained that he last saw Dr. Dickerman on August 11, at
2 p.m., when they watched the Chicago Cubs baseball game on
television. He said the doctor was dressed in a dinner jacket and
slacks and mentioned that he had dinner plans with friends. After Dr.
Dickerman left, defendant said, he finished painting the dining room
at 4:30 p.m., locked up the house and left. He spent the remainder of
the evening with his wife, three daughters, and mother-in-law. He
further said that he spent most of the next day in Peoria, Illinois, at a
bar and gambling on a river boat casino. He said that, after gambling,
he returned to Springfield at approximately 3:30 p.m., changed into
his work clothes at a friend=s home to conceal the fact of his gambling
from his wife, and returned home for the evening. Defendant said he
fled to Alabama on August 14 after receiving the answering machine
messages from the police concerning cashed checks. Defendant stated
that he feared the police would learn about his parole violation for an
earlier Indiana offense. Agent Wright and Detective Young
additionally questioned defendant about paintings and foreign gold
coins missing from the doctor=s home. Defendant stated that Dr.
Dickerman gave him the paintings, and that he subsequently
Apawned@ them in an antique shop. He also said that Dr. Dickerman
gave him the coins for his children, but he did not recall what he did
1
The Springfield division of the FBI initially participated in the
investigation at the request of the Springfield police department because
investigators initially believed that Dr. Dickerman=s disappearance was the
result of a kidnapping.
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with the coins. Ultimately, defendant was charged and pleaded guilty
to forgery and was imprisoned.
Defendant spoke a second time with the agent for the FBI and
Detective Young several days later and repeated his same story. He
reiterated that he last saw Dr. Dickerman when the doctor left the
house to meet friends for dinner.
On July 12, 1993, at Graham Correctional Center, detectives
spoke again with defendant to confront him about the accuracy of his
earlier statement. Defendant informed the detectives that Aeighty-
percent of his earlier statement was true.@
One year later, on July 27, 1994, pursuant to defendant=s request,
he again met with Springfield police detectives. At the time,
defendant was incarcerated for his forgery conviction at Big Muddy
Correctional Center. Defendant requested an audiotaped interview,
and pursuant to his request Springfield detectives Young and Doug
Williamson tape-recorded the interview. Detectives, also pursuant to
defendant=s request, brought a note from the State=s Attorney
describing the punishments for involuntary manslaughter and first
degree murder. When taping began, detectives advised defendant of
his Miranda rights and noted that the meeting occurred at defendant=s
request to discuss his actions on August 12, the day after Dr.
Dickerman disappeared. When asked whether his October 1992
statement to the police regarding his August 12 conduct was accurate,
defendant instructed the detectives to turn off the tape recorders.
Thereafter, for a 55-minute period while the tape recorders remained
off, defendant admitted that he had fabricated his alibi in his October
1992 statement. Defendant repeatedly asked the detectives to tell him
what evidence they had in the case. Defendant asked whether the
detectives thought that Dr. Dickerman was murdered, defendant
asked about the autopsy report, and despite never being told by the
detectives about blood found in the house, defendant asked about
blood found in Dr. Dickerman=s bathroom. When the detectives told
defendant that they were not going to give him any information, he
became frustrated, eventually blurting out, AI know you don=t have
the murder weapon.@
When recording resumed, defendant provided a new statement
lasting approximately 17 minutes. Defendant informed the detectives
that Dr. Dickerman discovered his forgeries earlier in the week of
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August 11, 1992. Defendant said that Dr. Dickerman agreed not to
press charges if defendant would perform additional work around the
house to pay off his debt. When defendant arrived at Dr. Dickerman=s
house on August 11, 1992, he found Dr. Dickerman lying on the floor
of his living room, unconscious, with a spot of blood on his head. He
said that his attempts to revive Dr. Dickerman failed. Defendant told
detectives that he was afraid he would be implicated in Dr.
Dickerman=s death because he had forged checks, so he fled the
house and returned the next day to dispose of the body. The next day,
he gathered Dr. Dickerman=s clothes, medicine, glasses, and
checkbook, to make it look like Dr. Dickerman left for a trip, placed
Dr. Dickerman in the trunk of his car, drove the car to a deserted area
near St. Louis, and threw the body over an embankment. He denied
killing Dr. Dickerman.
Detectives Young and Williamson met again with defendant on
August 3, 1994, at the Franklin County jail in Benton, Illinois, in
order to provide defendant with a transcribed copy of their taped
discussion occurring on July 27, 1994. Defendant simultaneously
listened to the tape and read the transcript. Afterwards defendant
signed the transcript, indicating that the transcript was a true and
correct copy of his discussion on July 27, 1994. The transcribed copy
is several pages in length and contains no reference to any inquiry
regarding a bargain for his cooperation. Detectives testified that on
August 3, 1994, after signing the transcript, defendant suggested he
would be willing to plead guilty to a lesser offense to reduce his
sentence. The detectives informed defendant that they were not
authorized to negotiate with defendant, but they indicated that they
would take his message to the State=s Attorney.
On August 16, 1994, while defendant was still incarcerated at Big
Muddy Correctional Center, Detectives Williamson and Cox served
defendant with an arrest warrant for first degree murder. Defendant
was read his Miranda rights and indicated that he understood those
rights. Detectives also provided defendant a copy of the Illinois
Criminal Code of 1961, containing the statutory definition of first
degree murder. The detectives informed defendant that if he believed
his actions constituted less than first degree murder it would
Abehoove@ him to speak to them.
Defendant informed the detectives that he wished to clarify his
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earlier statement. He admitted that his prior statements to the police
were false and made a new statement. Defendant told the detectives
that he was painting the interior of Dr. Dickerman=s house on August
11, 1992, when the mailman arrived. Dr. Dickerman retrieved and
opened his mail and discovered that defendant had forged checks. Dr.
Dickerman became excited and began screaming at defendant, when
he suddenly grabbed his chest, turned away, fell forward, struck his
head on the fireplace, then fell to the floor and struck his head a
second time on a cloth-covered, brick doorstop. Defendant placed Dr.
Dickerman=s body in a reclining chair, unlocked the front door, and
fled the house. Defendant stated that he had hoped someone would
discover the doctor, but he returned early the next morning and
discovered the doctor untouched. Defendant decided to dispose of the
body and, therefore, gathered some of Dr. Dickerman=s personal
effects, including his checkbook, clothing, and medicine. Defendant
placed the body in the trunk of Dr. Dickerman=s car, drove the car
past St. Louis where he found a chained-off road, and threw the body
over a cliff. Defendant then drove the car to Lambert-St. Louis
International Airport, wiped his fingerprints from the interior of the
car, and left the car in long-term parking.
Detectives testified that, overall, during their discussions with
defendant he was controlling and continually attempting to elicit
information from them about the case and their impressions of his
involvement in the crime. He often made references to facts about the
crime that were never mentioned by the detectivesBand refused to tell
them how he learned of the information.
Defendant testified in his defense and denied any involvement in
Dr. Dickerman=s death or the disposal of his body. He testified that on
August 11, 1992, he finished painting the interior of Dr. Dickerman=s
house and received final payment for his work. He stated that at 4
p.m., Dr. Dickerman left the house to meet his friends, and defendant
left shortly thereafter to pick up his wife from work. He told the jury
that he spent the remainder of the evening with his wife and children.
He testified that the next morning, August 12, 1992, he woke up and
spent the morning and afternoon on the Peoria river boat casino. He
then spent the evening with his wife and children. Defendant
continued that on August 13, 1992, he started work on a
condominium. He spent the day painting and eventually picked up his
wife and children and took them to a motel for a promised Anight
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out.@
Defendant stated that he only spoke to the detectives on July 27
because they threatened to arrest his wife and take away their
children. Defendant said the detectives threatened him and gave him
the details for his statement, such as where the body was found.
Defendant testified that he had Ano choice@ but to admit to disposing
of the body to avoid first degree murder charges.
A jury convicted defendant of first degree murder, and the trial
court sentenced defendant to 85 years= imprisonment. Defendant
appealed and the appellate court affirmed his conviction. 315 Ill.
App. 3d 500.
ANALYSIS
On appeal, the defendant argues that (1) the trial court improperly
ruled on a motion for substitution of judge; (2) the trial court erred
when it failed to bar defendant=s statements made on July 27 and
August 16; (3) the trial court erred by refusing to instruct the jury on
involuntary manslaughter; (4) the State failed to prove a material
element of the crimeBvenue; (5) the trial court improperly allowed
the State to amend the charges against him; and (6) his sentence
violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000).
I. Motion for Substitution of Judge
On November 15, 2001, pursuant to this court=s order the trial
court conducted a hearing on defendant=s motion for substitution of
judge (725 ILCS 5/114B5(d) (West 1998)). On remand, the trial court
concluded that there was no evidence of prejudice and denied
defendant=s motion.
In his supplemental brief, defendant continues to allege that the
trial judge was prejudiced against him. Defendant complains that this
prejudice is evident from the following conduct: the trial judge failed
to force the State=s compliance with discovery orders, and he
negatively commented upon defendant=s assertions of prosecutorial
misconduct during sentencing, telling defendant he was Aoutraged@ at
defendant=s accusations against the State=s Attorney and the police.
We detail these allegations in our opinion remanding this matter to
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the trial court for a hearing. See Jones, 197 Ill. 2d at 353. Defendant=s
assertions in his supplemental brief to this court are identical to those
argued before the trial court on remand.
In order to prevail, defendant must demonstrate that there are
facts and circumstances which indicate that the trial judge was
prejudiced. People ex rel. Baricevic v. Wharton, 136 Ill. 2d 423, 439
(1990); see also People v. Mercado, 244 Ill. App. 3d 1040, 1045-46
(1993). Prejudice is defined as A >animosity, hostility, ill will, or
distrust towards this defendant.= @ People v. Patterson, 192 Ill. 2d 93,
131 (2000), quoting People v. Vance, 76 Ill. 2d 171, 181 (1979); see
also Mercado, 244 Ill. App. 3d at 1047, quoting Vance, 76 Ill. 2d at
181. A movant bears the burden of establishing actual prejudice, not
just the possibility of prejudice. Patterson, 192 Ill. 2d at 131; see
Mercado, 244 Ill. App. 3d at 1045. A reviewing court will not disturb
a trial court=s determination absent a finding against the manifest
weight of the evidence. See Mercado, 244 Ill. App. 3d at 1047.
Here, the trial court on remand noted that Adefendant has failed to
assert facts or instances during the second trial which evidence either
prejudice or the denial of a fair trial.@ Further, the trial court
determined that Judge Zappa=s discovery rulings did not evince
prejudice against the State; rather, Judge Zappa held several pretrial
hearings and in many instances forced the State to comply with
outstanding discovery orders. Last, the trial court held that while
Judge Zappa=s comments during sentencing were Aintemperate,@ they
did not amount to evidence establishing the formation of a fixed
anticipatory judgment. Likewise, we find that defendant offers no
facts or circumstances to find that Judge Zappa harbored animus
toward him or his counsel or was less than evenhanded at the
subsequent trial. We find that the trial court=s order on remand is not
against the manifest weight of the evidence.
II. The July 27 and August 16 Statements
Defendant maintains that his statements made in 1994, on July 27
and August 16, were plea-related and inadmissible at trial. Defendant
acknowledges that he did not challenge the admissibility of these
statements in his initial appeal, but he argues that the statements
should have been barred on retrial and the trial court erred when it
refused to consider his motion to suppress. We disagree. Collateral
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estoppel bars the relitigation of an unappealed order absent special
circumstances. The present case contains no special circumstances
warranting relitigation of the issue.
In People v. Enis, 163 Ill. 2d 367, 386 (1994), this court held that
where Aa defendant=s conviction has been reversed for trial error, and
the cause is remanded for a new trial, the doctrine of collateral
estoppel bars the relitigation of a pretrial ruling, such as a motion to
suppress, unless the defendant offers additional evidence or there are
other special circumstances.@ In Enis, the defendant was convicted of
murder and sentenced to death for that conviction. The defendant
challenged the scope of the State=s cross-examination of him, and we
reversed and remanded for a new trial based on that error. In his first
appeal, the defendant did not challenge the trial court=s denial of his
motions to quash his arrest and suppress evidence. At his second trial,
the defendant renewed his motions to quash and suppress. The trial
court refused to reconsider its rulings from the first trial, and the
defendant was convicted and sentenced to death. On direct appeal,
the defendant challenged the trial court=s refusal to reconsider its
rulings. This court stated:
AWe find no reversible error in the trial court=s refusal to
reconsider its earlier rulings that denied defendant=s motions
to quash his arrest and suppress evidence, or the court=s denial
of defendant=s request to exclude evidence of the sexual
assault charge filed against the defendant. The defendant
could have raised these arguments in his first appeal, and his
failure to do so justified the trial court=s refusal to reconsider
its rulings, under principles of collateral estoppel. ***
Defendant does not suggest that he did not receive a full and
fair hearing on his pretrial motions. Defendant points to no
new evidence or legal precedent that would have been
pertinent to the trial court=s rulings on these matters. Also, we
can find no special circumstances that would have warranted
relitigation of defendant=s pretrial arguments.@ Enis, 163 Ill.
2d at 386-87.
Our case law does not explicitly define Aspecial circumstances.@
At common law, however, special circumstances suspended the
doctrine of collateral estoppel as a matter of equity where estoppel
would result in manifest injustice. See St. Paul Fire & Marine
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Insurance Co. v. Downs, 247 Ill. App. 3d 382, 389 (1993). Illinois
courts have found special circumstances warrant relitigation of an
earlier ruling when the defendant was denied an opportunity to
litigate the issue in his first appeal. In People v. Mordican, 64 Ill. 2d
257, 261-62 (1976), we held that under the special-circumstances
exception a defendant who unsuccessfully challenged the legality of
his arrest, but was acquitted of the charge, may later raise the same
argument of the legality of the arrest with respect to separate charges
also filed against him because his acquittal prevented appellate
review of his motion in the first proceeding. In People v. Savory, 105
Ill. App. 3d 1023, 1027-28 (1982), the appellate court reached a
similar result. The defendant was charged with two murders after he
made a statement to officers and a confession the following day. At
his first trial, the trial court denied the defendant=s motion to suppress
his statement and later confession. On appeal, the defendant
challenged the admission of his confession but did not challenge the
admission of his statement. The appellate court reversed the
defendant=s conviction, holding that his confession was involuntary.
On retrial, the trial court declined to reconsider its ruling regarding
the admissibility of his statement. The appellate court reversed,
holding that special circumstances warranted relitigation of the ruling
because the Astatements which defendant sought to suppress in the
second trial were not relied upon by the prosecution in the first trial
and, necessarily, the issue of suppression of evidence which could not
have contributed to his first conviction would have been considered
moot on review in the first appeal.@ Savory, 105 Ill. App. 3d at 1027-
28.
Unlike the defendants in both Mordican and Savory, defendant
here was not prevented from raising in his initial appeal the issue he
raised on remand at the beginning of his second trial and in this
appeal. The record illustrates that defendant was clearly on notice
that the statements could have contributed to his first conviction.
Specifically, the State used the July 27 and August 16 statements to
prosecute defendant in the first trial, and he challenged their
admissibility prior to the start of his first trial. However, in his initial
appeal defendant did not challenge the admissibility of the July 27
and August 16 statements and acknowledges this fact in his current
appeal. Rather, defendant only appealed the admissibility of his
August 15 statement in his initial appeal. Thus, the circumstances in
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this case more closely resemble those in Enis, where we found no
special circumstances. Similarly, defendant does not suggest that he
did not receive a full and fair hearing on his motions in the initial trial
and, further, does not offer new evidence or new legal precedent that
would have been important to the trial court at the time of its initial
ruling.
The appellate court seems to conclude that Aspecial
circumstances@ exist to avoid application of the collateral estoppel
doctrine in this case because defendant was denied the opportunity to
litigate the admissibility of the July 27 and August 16 statements in
his first appeal. 315 Ill. App. 3d at 504. According to the appellate
court, defendant was denied the opportunity to litigate the
admissibility of these statements in his first appeal because the appeal
was resolved solely based upon the August 15 statement. 315 Ill.
App. 3d at 504 (AIt was not necessary for us to address the other two
interviews [the July 27 and the August 16 statements] when we
decided [defendant=s first appeal]@).
This is incorrect. The appellate court in the first appeal did not
fail to consider the admissibility of the July 27 and August 16
statements because it was Aunnecessary@ or because resolution of the
one issue precluded further review of other issues. Rather, the
appellate court did not consider the admissibility of the July 27 or
August 16 statements because the defendant did not challenge their
admissibility in his first appeal. Clearly, this court has never held that
a defendant=s mere failure to challenge the admissibility of a ruling in
the first appeal is a special circumstance sufficient to overcome
collateral estoppel.
Furthermore, certainly the trial court was not obligated to
reexamine each of its rulings, including any unappealed Rule 402(f)
issues. This defies common sense and precedent. The examination of
whether statements are plea-related is fact specific. A finding as to
one statement does not necessarily reflect upon the admissibility of
other statements. See People v. Friedman, 79 Ill. 2d 341, 352 (1980).
Therefore, the appellate court=s holding that the August 15 statements
were made in the course of plea negotiations did not require the trial
court to reconsider the admissibility of all other statements on
remand. As we noted in Enis, the trial court retains inherent authority
to reconsider rulings as long as the cause is pending before it.
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However, the Atrial court=s power to modify its rulings does not imply
that the court is obligated to hold@ a hearing. (Emphases in original.)
Enis, 163 Ill. 2d at 387.
Defendant argues that if this court should find that collateral
estoppel bars relitigation of the unappealed issue, reversal is
warranted because he was denied effective assistance of counsel by
his original appellate counsel. Defendant maintains that his original
appellate counsel was ineffective for failing to challenge the July 27,
1994, and August 16, 1994, statements. The appellate court declined
to consider the argument because it held that the July 27 and August
16 statements were independent admissions and not excluded under
Rule 402(f). 315 Ill. App. 3d at 508.
In People v. Albanese, 104 Ill. 2d 504 (1984), we adopted the
two-prong, performance-prejudice test first enunciated in Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), to examine claims of ineffective assistance of counsel. The
Strickland test applies to claims of ineffective appellate counsel.
People v. Johnson, 205 Ill. 2d 381, 405 (2002). In order to prevail on
his claim, defendant must show that counsel=s failure to raise the
issue on appeal was objectively unreasonable and that this decision
prejudiced him. Johnson, 205 Ill. 2d at 405-06. Appellate counsel is
not required to brief every conceivable issue on appeal and may
refrain from developing nonmeritorious issues without violating
Strickland (People v. Simms, 192 Ill. 2d 348, 362 (2000)), because
defendant suffers no prejudice unless the underlying issue is
meritorious (People v. Easley, 192 Ill. 2d 307, 329 (2000)). Because
we find the issue dispositive, we examine the underlying merits of
defendant=s claim to assess whether he was prejudiced by appellate
counsel=s failure to raise the issue on appeal.
Supreme Court Rule 402(f) encourages the negotiated disposition
of criminal cases because the rule eliminates the risk that the jury will
hear statements or admissions made by defendants during plea
negotiations. Friedman, 79 Ill. 2d at 351. Rule 402(f) states:
AIf a plea discussion does not result in a plea of guilty, or
if a plea of guilty is not accepted or is withdrawn, or if
judgment on a plea of guilty is reversed on direct or collateral
review, neither the plea discussion nor any resulting
agreement, plea, or judgment shall be admissible against the
-15-
defendant in any criminal proceeding.@ 177 Ill. 2d R. 402(f).
We have adopted a two-prong test to examine whether a
statement is an inadmissible plea-related statement. Friedman, 79 Ill.
2d at 351. To prevail, a defendant must satisfy both prongs. A
statement is plea-related and, therefore, inadmissible under Rule
402(f) if defendant exhibited a subjective expectation to negotiate a
plea and the expectation was reasonable under the totality of the
objective circumstances. Friedman, 79 Ill. 2d at 351.
We adopted this test in Friedman, wherein we held that the
federal analysis applicable to determine when a statement is plea-
related equally applied to our examination under Rule 402(f) because
of the Asubstantial similarity@ between the rules.2 Friedman, 79 Ill. 2d
at 351, citing United States v. Robertson, 582 F.2d 1356, 1365 (5th
Cir. 1978) (establishing the Ageneral framework for determining
whether a conversation is an inadmissible plea negotiation@ under the
then-existing federal rules).
In Friedman, the defendant was convicted of theft by deception
for his involvement in a series of fraudulent investment schemes. The
defendant was also charged with federal mail fraud for the same
conduct. On appeal, the defendant challenged the introduction of a
statement he made to an investigator for the office of the Attorney
General. Particularly, the defendant=s statement AIf I=m convicted, I
would rather go to a Federal prison as opposed to a State prison@ was
admitted against him. The record revealed that the defendant made
this statement during a telephone conversation with the investigator,
after the investigator answered the telephone with the greeting
AOffice of the Attorney General.@ The State responded that because
the investigator clearly informed the defendant that he had no
authority to negotiate, by telling the defendant that he A[had] no
2
Federal Rule of Criminal Procedure 11(e)(6), once substantially similar
in language to Rule 402(f), has now been formally amended and is more
limited in its application. See People v. Hart, 214 Ill. 2d 490, 502-03
(2005).
-16-
control over that,@ the defendant=s offer to bargain was not made as
part of a plea negotiation. Friedman, 79 Ill. 2d at 350. We disagreed
and held that Aactual authority@ to negotiate is not required under
Rule 402(f). Friedman, 79 Ill. 2d at 352. As an initial matter, we held
that a statement of an offer to plea is clearly an indication of a
Adefendant=s intent to pursue plea negotiations.@ Friedman, 79 Ill. 2d
at 352. Put another way, the defendant=s statement satisfied the first
prong because when he voiced his desire to bargain he exhibited a
subjective expectation to negotiate. The facts further revealed that
there was no other possible purpose for his statement. Consequently,
we held that under the circumstances the Areasonableness of
defendant=s expectations@ were evident. Friedman, 79 Ill. 2d at 353.
Accordingly, the defendant=s statement was inadmissible under Rule
402(f). Friedman, 79 Ill. 2d at 352.
We recently addressed Rule 402(f) in People v. Hart, 214 Ill. 2d
490 (2005). In Hart, we considered whether a defendant=s inquiry to a
detective regarding what the detective Acould do for him@ if he
cooperated was inadmissible under Rule 402(f). Hart, 214 Ill. 2d at
511. We held that Athis court never intended Rule 402(f) to exclude as
evidence mere offers to cooperate *** where the offers were not
accompanied by >the rudiments of the negotiation process.= @ Hart,
214 Ill. 2d at 504, quoting Friedman, 79 Ill. 2d at 353. There, we held
that because the defendant did not request that the detective initiate
contact or convey terms to the prosecutor or, alternatively, specify the
terms he would require in exchange for pleading guilty, the rudiments
of the negotiation process were not present, thereby rendering the
defendant=s statements admissible. Hart, 214 Ill. 2d at 511-12.
Defendant here contends that the record is clear that on July 27,
1994, and August 16, 1994, he conveyed offers to bargain, including
the terms he would require in exchange for pleading guilty. We note
that the record, including detectives= reports, a transcribed copy of
defendant=s statement, and a multitude of testimonial evidence
spanning several years during both pretrial motions and trial, contains
veiled references of an offer and is simply not clear when, and if,
defendant ever conveyed an offer to bargain on the dates at issueB
July 27, 1994, and August 16, 1994. Nevertheless, even if we accept
as true defendant=s assertion that he conveyed some offer to bargain
on July 27, 1994, and August 16, 1994, defendant=s claim must fail.
Under the totality of the circumstances, it was objectively
-17-
unreasonable for defendant to believe he was engaged in plea
negotiations on July 27, 1994, and August 16, 1994.
As an initial matter, our holding in Friedman does not dictate the
exclusion of defendant=s statements. In Friedman, we considered the
admissibility of a bare offer to plea, nothing more. We held that plea
negotiations was the purpose of the defendant=s statement and that no
other possible purpose for the defendant=s statement existed. Thus,
under the circumstances the Areasonableness of defendant=s
expectations@ was evident. Friedman, 79 Ill. 2d at 353. The instant
matter does not concern the admissibility of a bare offer to plea. In
fact, defendant=s alleged offers to bargain were not admitted against
him at trial. Rather, only his statements disavowing his involvement
in Dr. Dickerman=s murder were admitted against him. Thus, unlike
Friedman, here we consider the admissibility of defendant=s
exculpatory statements in the face of the detectives= express warnings
that they had no authority to negotiate. Under the totality of these
objective circumstances, we consider whether defendant=s
expectations were reasonable.
The factual distinctions between the instant matter and those
present in Friedman are of importance because we have held that the
characterization of a statement as plea-related is fact specific, and
courts may consider a variety of factors in making this determination.
Friedman, 79 Ill. 2d at 351-52; see also Robertson, 582 F.2d at 1366,
1368 (Athe trial court should carefully consider the totality of the
circumstances. Thus, each case must turn on its own facts. *** [W]e
eschew a simplistic per se approach in favor of requiring a holistic
examination of the circumstances surrounding the discussion@). A per
se approachBone in which any offer by a defendant to plea would
immediately render all subsequent statements inadmissible plea
negotiationsBwould confuse the instant analysis with that used to
resolve constitutional challenges pursuant to Miranda. See Miranda
v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966);
Smith v. Illinois,469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984)
(discussing the Arigid prophylactic rule@ that once an accused makes a
clear request for counsel, all further questioning must cease until
counsel has been made available or until the accused initiates further
conversation and knowingly and intelligently waived the right he
previously invoked). The analysis here is necessarily different from
Miranda: one provides a highly specific bright-line rule, the other
-18-
does not. Thus, courts may consider the nature of the statement, to
whom defendant made the statement, and what the parties to the
conversation said. See generally Friedman, 79 Ill. 2d at 352.
Importantly, not all offers to bargain are inadmissible plea-related
statements. In Hart, we reaffirmed this principle, stating that Aoffers
to cooperate, without more, do not constitute plea negotiations or
offers to enter into plea negotiations.@ Hart, 214 Ill. 2d at 507
(discussing United States v. Pantohan, 602 F.2d 855 (9th Cir. 1979),
United States v. Levy, 578 F.2d 896 (2d Cir. 1978), and United States
v. Robertson, 582 F.2d 1356 (5th Cir. 1978)). Thus, courts must be
careful to distinguish between a statement made in the furtherance of
a plea discussion, which is inadmissible, and an independent
admission, which may be admitted as evidence. Friedman, 79 Ill. 2d
at 353, citing United States v. Shotwell Manufacturing Co., 287 F.2d
667, 673 (7th Cir. 1961).
Our appellate court in the instant matter also aptly noted this
distinction:
AEvery guilty person who voluntarily speaks to a detective
probably hopes to benefit from the conversation, either by
convincing the detective that he did not commit the crime or
by obtaining leniency for his cooperation. We should resist an
approach that characterizes every conversation between a
defendant and a detective as a plea negotiation. The police
have an investigatory function that the courts and even the
State=s Attorney do not have.@ 315 Ill. App. 3d at 506.
This investigatory function is critical to law enforcement, and we
must be careful to recognize this distinction when interpreting
whether Rule 402(f) applies. Particularly, while Rule 402(f) was
enacted to encourage the negotiation process, it was not enacted to
discourage legitimate interrogation techniques. Those arrested often
seek leniency, and not all attendant statements made in the hope of
gaining concessions are plea-related statements under Rule 402(f).
See generally Hart, 214 Ill. 2d at 506-11 (examining numerous
federal and appellate cases); see also Robertson, 582 F.2d at 1368
(distinguishing a plea of guilty and a mere admission or confession,
noting that an admission may still be admissible Adespite the fact that
the accused makes some request of those in charge@).
Here, on July 27, 1994, and August 16, 1994, we take as true
-19-
defendant=s allegations that he offered to bargain. Again, however,
we can discern no detail of this offer in the record, rather only vague
references to offers to bargain. Pursuant to the second prong
articulated in Friedman, we consider whether defendant=s
expectations were reasonable under the totality of the objective
circumstances. Again, we consider the nature of the statements, to
whom defendant made the statements, and most importantly here,
what the parties to the conversations actually said.
The objective circumstances in the instant matter reveal that any
expectation that he was engaged in plea negotiations on both July 27,
1994, and August 16, 1994, was not reasonable. Defendant did not
give information to strike a deal with the detectives. Defendant did
not confess. Defendant=s statements were not prompted by a desire to
seek leniency for his actions. It is plainly obvious that defendant gave
information to exonerate himselfBdefendant spoke to the detectives
each time to convince detectives that he did not commit a crime. The
content of defendant=s statements offer no indication that he divulged
information with the intent to plead guilty, or even reduce his
culpability. In each statement defendant denied any involvement in
the circumstances causing Dr. Dickerman=s death: on July 27, 1994,
he claimed no knowledge of the circumstances surrounding Dr.
Dickerman=s death and, alternatively, on August 16, 1994, he claimed
that Dr. Dickerman=s death was the result of heart failure. We do not
believe these exculpatory discussions exhibit the requisites of plea
bargaining. The totality of circumstances here indicate that defendant
was simply not plea bargaining. Thus, we hold that any expectation
was not reasonable under the totality of the objective circumstances.
See Friedman, 79 Ill. 2d at 351.
We note that this outcome is not inconsistent with the appellate
court=s decision concerning the August 15 statements. People v.
Jones, 294 Ill. App. 3d 1125 (1998) (unpublished order under
Supreme Court Rule 23). The objective circumstances surrounding
the August 15 statements and the statements we consider today are
not analogous. On August 15, defendant did not make an unsolicited
offer to plead guilty in exchange for a lesser charge. Rather, the
detectives visited defendant for the sole purpose of obtaining
defendant=s handwritten version of the events for the State=s
Attorney=s review. The August 15 statement was a written statement
prepared at the direction of the detectives for the sole purpose of
-20-
negotiations. After the detectives instructed defendant to prepare the
statement, and defendant did so, the interview ended. On July 27 and
August 16, however, the detectives refused defendant=s attempts to
bargain, and defendant continued to discuss Dr. Dickerman=s death in
order to convince the detectives he was not culpable.
Defendant finally requests that we consider the admissibility of
the statements under the plain error exception to the waiver rule.
However, A >[b]efore plain error can be considered ***, it must be
plainly apparent from the record that an error affecting substantial
rights was committed.= @ People v. Keene, 169 Ill. 2d 1, 18 (1995),
quoting People v. Precup, 73 Ill. 2d 7, 17 (1978). However, because
we have determined that nothing in the record supports that defendant
ever engaged in plea negotiations on July 27 or August 16, his
statements were independent admissions, and our review under the
plain error doctrine is not warranted.
III. Involuntary Manslaughter Instruction
Defendant contends that he was entitled to a jury instruction on
the offense of involuntary murder. The trial court refused to give the
instruction, holding that there were no indications defendant acted in
a reckless manner. The appellate court affirmed. 315 Ill. App. 3d at
508. Defendant states in his brief, AThe jury could have found that
[Dr. Dickerman] had died from a skull fracture suffered in a fall and
further found that [defendant] had caused that fall, perhaps during a
brief struggle which ensued when [Dr. Dickerman] confronted
[defendant] about the forged checks.@ Accordingly, defendant argues
that because the jury did not receive the instruction he is entitled to a
new trial before a properly instructed jury.
The giving of jury instructions is a matter within the sound
discretion of the trial court. People v. Castillo, 188 Ill. 2d 536, 540
(1999). An instruction on a lesser offense is justified when there is
some credible evidence to support the giving of the instruction.
People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998). Where there is
evidentiary support for an involuntary manslaughter instruction, the
failure to give the instruction constitutes an abuse of discretion.
DiVincenzo, 183 Ill. 2d at 249. Whether an involuntary manslaughter
instruction is warranted depends on the facts and circumstances of
each case. DiVincenzo, 183 Ill. 2d at 251.
-21-
The offenses of involuntary manslaughter and first degree murder
require different mental states, such that involuntary manslaughter
requires a less culpable mental state than first degree murder.
Particularly, involuntary manslaughter requires that a defendant
unintentionally kill an individual by recklessly performing acts that
are likely to cause death or great bodily harm. 720 ILCS 5/9B3(a)
(West 2000). Recklessness is defined in section 4B6 of the Criminal
Code:
AA person is reckless or acts recklessly, when he
consciously disregards a substantial and unjustifiable risk that
circumstances exist or that a result will follow, described by
the statute defining the offense; and such disregard constitutes
a gross deviation from the standard of care which a
reasonable person would exercise in the situation.@ 720 ILCS
5/4B6 (West 2000).
Though defendant contends that some evidence supports that he
acted recklessly in causing Dr. Dickerman=s death, the record in no
way supports this assertion. At trial, defendant testified that he was
not present at the time of Dr. Dickerman=s death and that he last saw
Dr. Dickerman alive. Alternatively, in his various statements to the
detectives, defendant claimed that (1) he discovered Dr. Dickerman
dead, (2) while he was at the house Dr. Dickerman had a heart attack
and fell to the floor, and (3) while he was at the house Dr. Dickerman
had a heart attack and hit his head when he fell to the floor. This
evidence does not support a struggle and inadvertent fall.
In addition, pathology evidence admitted during trial did not
warrant an instruction. Pathologists at trial explained that Dr.
Dickerman sustained a skull fracture that was either the result of a
blow to the head by a blunt object or the result of a fall. Defendant
asserts that this evidence was sufficient for a jury to find that
defendant inadvertently knocked Dr. Dickerman down during a brief
struggle, causing his death. Again, defendant=s own statements rebut
this claim. There was simply no evidence at trial to support
defendant=s claim that he inadvertently caused Dr. Dickerman to fall.
In order to require an instruction of involuntary manslaughter,
defendant must be able to point to some evidence in the record that he
acted recklessly. Because there is a complete absence of any evidence
to support an involuntary manslaughter instruction, we find that the
-22-
trial court=s refusal to give the instruction was not an abuse of
discretion.
IV. Venue
Defendant argues that the State failed to prove that Dr.
Dickerman was killed in Sangamon County and therefore failed to
prove a necessary element of the offenseBvenueBand his conviction
must be vacated.
At the time of Dr. Dickerman=s death, section 1B6 of the Criminal
Code set forth the general venue requirements for criminal actions.
720 ILCS 5/1B6 (West 1994). Pursuant to this section, venue was a
material element of the offense and the State was required to prove
the element beyond a reasonable doubt. People v. Digirolamo, 179
Ill. 2d 24, 49 (1997). In the instant matter, the State was required to
prove venue beyond a reasonable doubt. 3
Therefore, we must determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. People v. Evans, 209 Ill. 2d 194, 209
(2004). It is not the province of this court to substitute its judgment
3
Amended section 1B6 provides, AThe State is not required to prove
during trial that the alleged offense occurred in any particular county in this
State.@ 720 ILCS 5/1B6(a) (West 2000). This amendment, however, does
not apply in the instant matter. Amendments that affect procedure or
remedies, and not substantive rights, apply retroactively to pending cases.
Digirolamo, 179 Ill. 2d at 50. This court has held that amended section 1B6
does not apply retroactively because the amended version of section 1B6
effected a change in substantive law. Digirolamo, 179 Ill. 2d at 50.
-23-
for that of the jury, and we will not reverse a conviction unless the
evidence is so unreasonable, improbable or unsatisfactory that it
raises a reasonable doubt of defendant=s guilt. Evans, 209 Ill. 2d at
209; People v. Hall, 194 Ill. 2d 305, 329-30 (2000); Digirolamo, 179
Ill. 2d at 43.
Venue is proper in any county where any element of the offense
occurred. See People v. Sims, 244 Ill. App. 3d 966, 1004 (1993).
Where the body of a homicide victim is discovered in Illinois, the
death is presumed to have occurred in the state. 720 ILCS 5/1B5(b)
(West 1994). When the victim is not discovered in Illinois, the State
does not receive the presumption and must establish venue beyond a
reasonable doubt. Venue may be established by either direct or
circumstantial evidence. Particularly, A[v]enue may be shown by
circumstantial evidence and is proved if there is evidence from which
it can be inferred that the crime was committed in the county where
the prosecution took place.@ Sims, 244 Ill. App. 3d at 1004.
Dr. Dickerman=s body was discovered beyond Illinois=
boundaries. However, the record contains evidence from which a
rational trier of fact could have concluded Dr. Dickerman=s death
occurred in Sangamon County. Importantly, the jury heard
defendant=s own statements of where the death occurred. In his July
27 and August 16 statements, defendant said Dr. Dickerman died in
his home in Sangamon County. The jury learned that defendant
informed the detectives that he removed Dr. Dickerman=s body from
his house in Sangamon County and drove the body outside Illinois,
thereby explaining why the body was discovered beyond Illinois=
boundaries. This evidence alone, viewed in the light most favorable
to the prosecution, is sufficient to survive the instant challenge.
However, we also note that the jury learned defendant forged Dr.
Dickerman=s checks, that on the day he died Dr. Dickerman
confronted defendant about the forgeries, and that on the day Dr.
Dickerman died defendant attempted to hide evidence of the forgeries
and appeared anxious and nervous when he was unable to retrieve the
mail containing evidence of his forgeries. Further, the jury was
presented with medical testimony at trial that Dr. Dickerman=s death
was more consistent with a blow to the head with a blunt object than
a fall from a cliff. Finally, the jury also heard testimony from forensic
investigators regarding evidence of bloodspatters on the bathroom
-24-
wall, window sill, and rug within Dr. Dickerman=s house. The
investigator testified that the blood gathered from the bathroom rug
matched the victim=s DNA. We find that this evidence, taken
together, is sufficient to support venue beyond a reasonable doubt.
V. Amendment of the Charges
Defendant argues that the State improperly amended the
indictment on the day of trial. The State amended count III of the
indictment, which charged that defendant=s conduct created Aa strong
probability of death,@ to state that defendant=s conduct Acreated a
strong probability of death or great bodily harm.@
The State may amend the charging instrument to correct formal
defects at any time. 725 ILCS 5/111B5 (West 2000) (providing a
nonexclusive list of formal defects). Defendant was charged with first
degree murder, and the indictment prior to the amendment properly
identified the relevant statute. 720 ILCS 5/9B1 (West 1996). The
amendment did not alter or change the charge, or broaden the scope
of the indictment. See People v. Griggs, 152 Ill. 2d 1, 32 (1992).
Further, it did not add an alternative mental state. In effect, the
indictment was amended to cure a scrivener=s error. Defendant was
neither taken by surprise nor unable to prepare his defense to the
allegation. The trial court did not err in permitting the amendment.
VI. Apprendi v. New Jersey
As a final matter, defendant argues that his conviction should be
overturned pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000), because a fact that increased his
imprisonment, the age of the victim, was not alleged in the charging
instrument and not submitted to the jury and proven beyond a
reasonable doubt.
An Apprendi violation is not per se reversible error and may be
subject to a harmless-error analysis. People v. Thurow, 203 Ill. 2d
352, 363 (2003). Here, the State presented uncontested and
overwhelming evidence during trial that Dr. Dickerman was 85 years
old at the time of his death. We conclude, therefore, that any
Apprendi violation in this case constituted harmless error.
Defendant cites Blakely v. Washington, 542 U.S. 296, 159 L. Ed.
-25-
2d 403, 124 S. Ct. 2531 (2004), as additional authority for the
proposition that Aan Apprendi error cannot be harmless.@ Blakely,
however, simply holds that the statutory maximum for Apprendi
purposes is the maximum sentence a trial judge may impose based
solely on the facts behind the jury=s guilty verdict or the defendant=s
guilty plea. See Blakely, 542 U.S. at 303, 159 L. Ed. 2d. at 413, 124
S. Ct. at 2537. Blakely does not dictate that an Apprendi violation
cannot be a harmless error.
CONCLUSION
For the reasons stated, the judgment of the appellate court is
affirmed.
Affirmed.
JUSTICES GARMAN and KARMEIER took no part in the
consideration or decision of this case.
JUSTICE McMORROW, specially concurring:
In the case at bar, defendant has raised a number of issues for our
review. For the most part, this court is in agreement on the resolution
of these claims. However, there is one issue upon which the court
does not agreeBwhether defendant=s appellate counsel following his
first trial was ineffective for failing to challenge the admissibility of
oral statements defendant made to police, on July 27, 1994, and
August 16, 1994, as plea-related pursuant to Illinois Supreme Court
Rule 402(f). The lead opinion finds that the July 27, 1994, and
August 16, 1994, statements were not plea related and, thus, these
statements were not inadmissible under Rule 402(f). As a result, the
lead opinion finds that defendant=s initial appellate counsel was not
ineffective for failing to challenge the trial court=s suppression ruling
with regard to these statements. The dissent, however, finds that
defendant did receive ineffective assistance of appellate counsel
because the July 27, 1994, and August 16, 1994, statements were plea
related and, thus, defendant was prejudiced by his initial appellate
counsel=s failure to challenge their admissibility under Rule 402(f).
I agree with the lead opinion that the oral statements made on the
-26-
two dates in question here were not plea related. However, I disagree
with the lead opinion=s analysis of this matter. First, the lead opinion
characterizes defendant=s statements on July 27, 1994, and August 16,
1994, as Aexculpatory@ (see pages 34 and 39) which is, in my view,
inaccurate. On July 27, 1994, defendant told police that he found Dr.
Dickerman, collapsed on the floor of his home, and attempted to give
him CPR. Defendant admitted that he called no one to assist because
he was afraid of getting in trouble. Defendant said that, instead of
notifying anyone about Dr. Dickerman=s condition, he returned the
next day and disposed of Dr. Dickerman=s body, making it look like
Dr. Dickerman left on his own. On August 16,1994, defendant
revised his July 27 statement, this time claiming that Dr. Dickerman
suffered a heart attack while yelling at defendant about the forged
checks. Defendant still said he did nothing to save Dr. Dickerman and
never called for assistance. He also admitted, as before, to disposing
of Dr. Dickerman=s body. In my view, these statements should not be
viewed as Aexculpatory.@
I also disagree with the analysis employed by the lead opinion to
support its statement that Aobjective circumstances in the instant
matter reveal that any expectation that he [defendant] was engaged in
plea negotiations on both July 27, 1994, and August 16, 1994, was
not reasonable.@ See slip op. at 20. The lead opinion reasons:
ADefendant did not give information to strike a deal with the
detectives. Defendant did not confess. Defendant=s statements
were not prompted by a desire to seek leniency for his
actions. It is plainly obvious that defendant gave information
to exonerate himselfBdefendant spoke to the detectives each
time to convince detectives that he did not commit a crime.
The content of defendant=s statements offer no indication that
he divulged information with the intent to plead guilty, or
even reduce his culpability.@ Slip op. at 20.
I disagree with each of the above statements. As I will explain,
defendant did give information to the detectives in the hopes of
convincing the detectives that his actions amounted to something less
than murder, i.e., involuntary manslaughter or concealment of a
homicide. Defendant did confess, albeit not to murderBdefendant=s
statements were inculpatory as to other criminal offenses. Defendant
did desire leniency in the respect that he was hopeful of convincing
-27-
the detectives that he was not responsible for and, therefore, should
not be charged with, Dr. Dickerman=s murder. Defendant hoped to be
charged with some other lesser offense. Defendant did not hope to
convince the detectives that Ahe did not commit a crime.@ See slip op.
at 20. Defendant gave information to exonerate himself of murder,
but he admitted to other crimes. Thus, the lead opinion offers no
justification for its holding that defendant=s expectation that he was
negotiating a plea bargain was not reasonable and its analysis fails.
However, I am not persuaded by the dissent on this matter. The
dissent, though lengthy, comes to one basic conclusionBthat
testimony presented at the June 1996 hearing on defendant=s motion
to suppress Aestablishes that, at least by the time of the July 27
interview, defendant was attempting to negotiate a plea with the
State=s Attorney=s office and that the police agreed to act as his
conduit for information.@ See slip op. at 48 (Kilbride, J., dissenting).
The dissent misses the point. It is true that defendant made offers
to plead guilty to certain lesser offenses on August 3, 1994, and
August 15, 1994. It may also be true that, at some point during
defendant=s meeting with police that took place on July 27, 1994,
defendant made an offer to plead guilty. But defendant is not seeking
to suppress these offers, which contain the Arudiments of the
negotiation process@ and which everyone recognizes as offers to
negotiate a plea. This is because defendant does not allege that
anyone ever testified at trial that he made an offer to plead guilty on
July 27, 1994, or August 16, 1994. Instead, defendant is seeking to
suppress, in their entirety, factual statements made to police during
interviews conducted on these dates. In my view, the fact that
defendant made offers to plead guilty does not, by itself, Aestablish@
that the statements defendant seeks to suppress were plea-related
discussions under Rule 402(f). See slip op. at 48 (Kilbride, J.,
dissenting).
Contrary to the dissent, I believe that, in order to determine
whether it was objectively reasonable for defendant to believe that he
was engaged in plea negotiations at the time he made the statements
he seeks to suppress, it is important to consider when the offers were
made, i.e., whether the offer to plead guilty was made prior to or
subsequent to the statement at issue, and what else was said by the
parties present. I reject the notion, espoused by the dissent, that there
-28-
is an Ainherent interrelationship@ (see slip op. at 49 (Kilbride, J.,
dissenting)). between defendant=s attempts to negotiate a plea, such
that, subsequent to an offer to plead guilty, every conversation a
defendant has with police, over the course of weeks or months, is
automatically transformed into Aplea negotiations.@
I also do not agree with the dissent that Friedman=s holding that
A >a preamble explicitly demarcating the beginning of plea
negotiations= @ is not required, is at odds with the need for some sort
of prefatory offer. (Emphasis omitted.) See slip op. at 51 (Kilbride, J.,
dissenting), quoting Friedman, 79 Ill. 2d at 352. Nor do I agree with
how the dissent interprets Friedman when it states that Aonly >[w]here
a defendant=s subjective expectations are not explicit, [do] the
objective circumstances surrounding defendant=s statement take
precedence in evaluating defendant=s subsequent claim that the
statement was plea-related.= @ (Emphasis omitted.) Slip op. at 52
(Kilbride, J., dissenting), quoting Friedman, 79 Ill. 2d at 353. As I
will explain, the dissent=s understanding of Friedman is
fundamentally flawed.
Finally, I find no justification for the dissent=s characterization of
the police officers= dealings with defendant as disingenuous. See slip
op. at 62 (Kilbride, J., dissenting). In my view, these remarks are not
supported by the record.
For all of the above reasons, I write separately.
BACKGROUND
At the heart of defendant=s sixth amendment claim is an issue of
importance: When is a statement part of plea negotiations and,
therefore, subject to suppression under Rule 402(f)? An answer to
this question was recently provided by this court in People v. Hart,
214 Ill. 2d 490 (2005). In Hart, we reaffirmed the two-part test
recognized in Friedman for determining whether a particular
statement is plea-related. We said that courts must consider, first,
whether the accused exhibited a subjective expectation to negotiate a
plea, and, second, whether that expectation was reasonable under the
totality of the objective circumstances. Hart, 214 Ill. 2d at 503, citing
Friedman, 79 Ill. 2d at 351. We also noted that, A >[b]efore a
discussion can be characterized as plea related, it must contain the
rudiments of the negotiation process, i.e., a willingness by defendant
-29-
to enter a plea of guilty in return for concessions by the State.= @ Hart,
214 Ill. 2d at 503, quoting People v. Friedman, 79 Ill. 2d 341, 353
(1980). According to Hart, then, a discussion is not plea-related
unless the defendant=s subjective expectation to enter into plea
negotiations is communicated by some type of offer to plead guilty in
exchange for concessions and the defendant=s subjective belief that
he is plea bargaining is objectively reasonable under the attendant
circumstances.
It is important to keep in mind that, in both Friedman and Hart,
the question before the court was whether it was error to have
permitted testimony at trial revealing that the defendants had made
certain Ainquiries,@ i.e., that the defendant in Friedman inquired into
Amaking a deal@ and that the defendant in Hart inquired into Awhat I
could do for him if he cooperated.@ The issue was whether these
inquiries were evidence of the defendants= subjective belief that they
were attempting to enter into a Aplea discussion.@ Thus, both
Friedman and Hart dealt with the first prong of the two-part test.
That is not the issue in the case at bar. Here, there is no question that,
on certain dates, defendant made offers in an attempt to enter into
plea negotiations. But the statements defendant made when
attempting to enter into plea negotiations were not admitted at trial, at
least with regard to the July 27, 1994, and August 16, 1994, dates.
The question in the case at bar is whether it was objectively
reasonable under the attendant circumstances for defendant to believe
that he was actually engaged in plea negotiations when he made the
factual admissions and other statements which he now seeks to
suppress.
Consequently, resolution of the issue before this court is highly
dependent upon the facts of the case. Thus, an accurate and detailed
statement of facts is of utmost importance. In the case at bar, any
decision about when defendant made the offer containing Athe
rudiments of the negotiation process@ and whether it was reasonable
under the circumstances for defendant to have believed that he was
engaged in plea bargaining when he made the statements he seeks to
suppress must be determined after a thorough examination of the
facts. To that end, I offer the following additional facts, which I
believe are important to the resolution of the matter before us.
Defendant, an itinerant painter, was hired in July 1992 by Dr.
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Henry Dickerman, an 84-year-old retired gentleman, to do some
painting and repair work on Dickerman=s home. Defendant was
working at the Dickerman residence in August 1992 when Dr.
Dickerman disappeared. On Tuesday, August 11, 1992, Dr.
Dickerman had lunch with a group of friends, but failed to attend his
regular Wednesday bridge game on August 12, 1992. His friends
reported him missing on August 12, 1992, and the authorities began a
massive investigation in an attempt to locate Dr. Dickerman. As part
of this investigation, the police wanted to speak with defendant. On
August 14, 1992, the police left a message for defendant on his
mother-in-law=s phone. The next day, August 15, 1992, defendant left
the State of Illinois. He gave his wife a note 4 to give to the police in
which he claimed to have no knowledge regarding the disappearance
of Dr. Dickerman.
On September 1, 1992, Dr. Dickerman=s home was processed as a
crime scene. At this time, high-velocity bloodspatter, consistent with
cast-off from a blunt-force injury, was discovered in the upstairs
master bathroom. On September 5, 1992, skeletal remains were
discovered in a Wildlife Preserve in Missouri, near St. Louis. On
September 27, 1992, these remains were positively identified as the
remains of Dr. Dickerman. Two days later, on September 29, 1992,
Dr. Dickerman=s car was located in a St. Louis airport parking lot.
Defendant returned to Illinois and was arrested in Springfield on
October 6, 1992, in relation to other alleged crimes. On this date,
defendant, in the presence of his counsel, was questioned extensively
by local police and an agent of the FBI regarding Dr. Dickerman=s
disappearance. Defendant admitted that he had been at the Dickerman
home on August 11, 1992, to do some painting. Defendant said he
saw Dr. Dickerman leave the home in the morning and return
sometime after 1 p.m. Defendant said that Dr. Dickerman left the
home again around 4 p.m., stating that he was going out to dinner
with friends. Defendant said that he finished painting, left Dr.
Dickerman=s home around 4:30 p.m., and never saw Dr. Dickerman
again. Defendant also told the police that, on August 12, 1992, he left
Springfield at about 7 a.m. to go to Peoria to gamble on a riverboat
4
The contents of this note is reported, in full, in the lead opinion. See slip
op. at 5.
-31-
casino. According to defendant, he missed the 9 a.m. cruise so he
went to a bar called Katy Hooper=s to wait for the next cruise at 11:30
a.m. He described the waitress who served him. Defendant also told
the police that he had a VIP pass at the casino and was Arated@ for his
gambling. Defendant repeated this story when police reinterviewed
him on October 13, 1992, in the presence of counsel.
The information defendant gave police was checked and
determined to be a fabrication. The waitress at Katy Hooper=s whom
defendant described had not been working that day. Moreover, no
one else at the bar remembered seeing defendant on August 12, 1992.
In addition, the casino checked defendant=s rating cards and could not
verify that defendant had been gambling on August 12, 1992.
In the course of the police investigation, it was discovered that
three out-of-sequence checks, made out to defendant and totaling
more than $5,000, had been drawn on Dr. Dickerman=s account.
Defendant was charged with three counts of forgery in relation to
these checks. On February 17, 1993, defendant pled guilty to one of
the counts of forgery and, on March 23, 1993, was sentenced to five
years= imprisonment.
On July 12, 1993, two Springfield police officers, Cox and
Young, went to the Graham Correctional Facility, where defendant
was serving his sentence for the forgery conviction. The officers
advised defendant that information he had given the police regarding
his whereabouts on August 11 and 12, 1992, did not check out. They
asked if he would be willing to speak with them. Defendant was also
advised that he would soon be charged with certain weapons charges.
Defendant indicated at this time that he wished to make another
statement regarding Dr. Dickerman=s disappearance because 80% of
what he had previously told police was true, but there were some
changes he wanted to make. Defendant stated, however, that he
wished to have counsel present. He noted that he was unsure whether
he was still being represented by the attorney who had assisted him in
the forgery matter. He asked the officers to check into the matter of
his representation because he had been unsuccessful in reaching his
previously assigned counsel. Nothing substantive regarding the
Dickerman matter was discussed on this date. Although defendant=s
counsel was contacted, no date was set for another interview.
On September 23, 1993, Springfield police officers Cox and
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Young accompanied FBI agent Schmidt to Graham Correctional
Facility. A warrant was served on defendant concerning certain
weapons charges. Although defendant was interviewed on this date,
the Dickerman case was not discussed.
In June 1994, Springfield police detectives traveled to Indiana to
meet with defendant=s mother and other relatives. The detectives
explained that it was likely that defendant would soon be charged
with first degree murder in connection with Dr. Dickerman=s death.
The officers asked the family if they had any further information
concerning defendant=s involvement in Dr. Dickerman=s death. It was
also suggested that, if defendant was not responsible for Dr.
Dickerman=s death, it would be in his best interests for him to contact
his attorney so that he could make arrangements to meet with the
police and explain the extent of his involvement.
Shortly thereafter, in July 1994, the Springfield police were
contacted by defendant=s mother. She said defendant wanted to talk
with the police, but wanted the conversation to be taped. She said that
defendant asked that the detectives bring two tape recorders so that
one copy of the taped interview could be retained by defendant.
Defendant=s mother also indicated that defendant wanted some type
of Anote@ from the State=s Attorney stating the penalty ranges for
various crimes from manslaughter on up to murder.
On July 27, 1994, Springfield police officers Young and
Williamson went to Big Muddy Correctional Facility, where
defendant was then being housed. They testified at the suppression
hearing that they brought two tape recorders, but could not remember
if they also brought any Anote.@ The officers testified that, upon
arriving at the facility, defendant was advised of his rights and that he
agreed to waive his rights. The tape recorders were started and the
interview began. Once the taped interview began, defendant was
again given Miranda warnings. Notably, defendant was told that
anything he said could and would be used against him in a court of
law. Defendant stated he understood. Nowhere in the taped interview
does defendant indicate that he is giving his statement for a particular
purpose other than to amend his earlier statements. In addition, the
officers who were present testified that no one promised defendant
anything in exchange for defendant=s taped statement.
The taped interview began around noon. Five minutes later, the
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tape was stopped at defendant=s request. Defendant spoke with the
detectives for about 55 minutes with the tape recorder off. Both
officers testified that during this time defendant essentially gave them
a Apreview@ of what he later said on the tape. The officers also
testified that, during this time, defendant began questioning them,
attempting to learn what the police already knew from their
investigation. At one point, defendant appeared frustrated because the
detectives were not forthcoming with information about the
investigation. He then blurted out, AI know you don=t have the murder
weapon.@ Defendant also asked the detectives about blood in the
upstairs bathroomBa fact that had not been publicly released.
At about 1 p.m., the tape recorders were turned on and the
interview resumed. According to the transcript of the interview,
defendant told the detectives that Dr. Dickerman discovered that
defendant had forged some of Dr. Dickerman=s checks on Monday,
August 10, 1992. Defendant said that Dr. Dickerman spoke to him
about the checks and, although Dr. Dickerman was not happy about
what he had done, they were able to come to an agreement.
Defendant said that they had agreed that defendant would do some
additional work around the Dickerman residence to work off the debt.
Defendant said that the next day, August 11, 1992, he did some
painting at Dr. Dickerman=s until around 4:30 p.m., when he went to
pick up his wife. They shopped for a birthday gift for his mother-in-
law and then he dropped his wife off at home. Defendant said he then
went back to Dr. Dickerman=s home between 4:30 and 5 p.m., to pick
up a check for some materials. He said that, when he arrived, the door
was open and he walked inside. Defendant said he found Dr.
Dickerman lying on the floor, dead, next to his green chair in the
livingroom. Defendant then said, AI don=tBin my opinion I don=t think
that he was murdered.@ Defendant said he thought Dr. Dickerman had
a heart attack and, for that reason, he tried to give Dr. Dickerman
CPR.
Defendant went on to explain, AI did not kill Dr. Dickerman,@ but
because only Dr. Dickerman knew about the arrangement they had
reached with regard to the forged checks, he became worried that he
would get into trouble. For this reason, defendant said, he did not call
for help. Instead, defendant said he left the Dickerman home, leaving
the door unlocked, hoping that someone else would find the body.
Defendant claimed that, later that evening, he returned to the
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Dickerman residence and, as a gesture of compassion, moved Dr.
Dickerman=s body to the couch.
Defendant said that, after a sleepless night, he came up with a
plan to get rid of Dr. Dickerman=s body. Between 6:30 and 7 a.m., he
went back to Dr. Dickerman=s home, placed the body in the trunk of
Dr. Dickerman=s car, and drove around until he found a place to
dump the body. After throwing the body over a cliff, defendant drove
to Lambert-St. Louis International Airport, left the car in long-term
parking, took the shuttle to the terminal, and took a taxi to a truck
stop, where he disposed of a number of Dr. Dickerman=s personal
items (checkbook, bank statement, keys, glasses, and medicine) that
defendant had taken to make it look as if Dr. Dickerman had gone
away on his own.
The transcript of the taped interview contains no offer to plead
guilty. In fact, Officer Young, when questioned at the suppression
hearing, did not recall that defendant made any offers on this date. It
was not until he was confronted with the fact that there was a brief
notation at the end of his notes regarding the visit that he remembered
any offer. When asked about the entry, Officer Young had only a
vague memory that, at some point during the officers= visit on this
date, defendant indicated that he believed the most he could be
charged with, based on his actions, was involuntary manslaughter or
concealment of a body; that defendant indicated a willingness to
plead to a lesser charge. Officer Young admitted that he agreed to
convey the offer to the State=s Attorney. It should be noted, however,
that Officer Young also testified, AI remember telling him [defendant]
we couldn=t negotiate anything with him.@ Moreover, as noted earlier,
no one ever testified at trial that defendant made an offer to plead
guilty on July 27, 1994.
Defendant pled guilty to gun charges on July 28, 1994, and, for
this reason, was moved to the Franklin County jail. On August 3,
1994, Springfield police officers Cox and Young went to the Franklin
County jail to review with defendant the transcript of the earlier taped
interview. Defendant listened to the tape as he read along with the
transcript. Defendant agreed that the transcript was accurate and
signed it. At the April 1996 suppression hearing, Officer Young
testified that, after the transcript was reviewed, defendant indicated
that he was willing to negotiate a plea to a lesser offense for a
-35-
reduced sentence. The officers said they told defendant that they had
no ability to negotiate any deals or accept any offers, but agreed to
transmit the offer to their supervisor. Officer Young testified that
when he returned to the police station he informed his supervisor,
Sergeant Conway, of defendant=s offer. At Sergeant Conway=s
request, Officer Young went back to see defendant on August 15,
1994, and had defendant write out his plea offer. This is the written
statement which the appellate court ruled inadmissible under Rule
402(f) after defendant=s first trial and, thus, was suppressed at
defendant=s second trial.
On August 16, 1994, Springfield police officers returned to the
Franklin County jail, this time to serve a warrant on defendant for the
murder of Dr. Dickerman. The officers said they brought a copy of
the Criminal Code so that defendant could read the elements of the
offense of murder. The officers suggested that, if defendant believed
the charge of murder was inappropriate, he should tell them why.
Defendant, in an effort to convince the police that he did not murder
Dr. Dickerman, agreed to speak with the officers. Defendant was
again given Miranda warnings. He then told police a different
version of what happened on August 11, 1992. Defendant said that
Dr. Dickerman received the bank statement and discovered the forged
checks on Tuesday, August 11, 1992 (not Monday, August 10, 1992,
as he had previously indicated). Defendant said that Dr. Dickerman
became quite angry and began yelling at him. At this point, defendant
said, Dr. Dickerman clutched his chest and fell down, hitting his head
on the fireplace as he went. The remainder of defendant=s story,
regarding the disposal of the body, remained the same as in his earlier
statement.
ANALYSIS
Only the statements defendant made to police on July 27, 1994,
and August 16, 1994, are at issue in the present appeal. Defendant
contends that everything he told police on these two dates constitute
plea discussions and, therefore, should have been ruled inadmissible
under Rule 402(f). Because defendant=s initial appellate counsel did
not challenge the admissibility of these statements in his first appeal,
defendant claims he received ineffective assistance of counsel.
Illinois Supreme Court Rule 402(f) provides:
-36-
AIf a plea discussion does not result in a plea of guilty, or
if a plea of guilty is not accepted or is withdrawn, or if
judgment on a plea of guilty is reversed on direct or collateral
review, neither the plea discussion nor any resulting
agreement, plea, or judgment shall be admissible against the
defendant in any criminal proceeding.@ 177 Ill. 2d R. 402(f).
Since the rule provides that Aplea discussions@ are inadmissible,
the rule begs the question, what is a plea discussion? As explained
above, we addressed this issue recently in People v. Hart, 214 Ill. 2d
490 (2005). In Hart, Decatur police detective Michael Beck testified
at defendant=s trial that he had interviewed defendant after his arrest,
advised the defendant of his rights, and the defendant agreed to speak
with him. Beck testified that defendant initially began talking about
an outstanding warrant, but Beck told the defendant that he wanted to
talk about the armed robbery. Beck testified that he told defendant
that he knew defendant was involved (defendant had been tentatively
identified by witnesses) and that defendant then asked Awhat I could
do for him if he cooperated.@ Beck testified that he told defendant he
could not make any promises, but would tell the State=s Attorney of
his cooperation. The interview ended and defendant never admitted
any involvement in the robbery. Based on Beck=s testimony, the
prosecutor argued, in closing argument, ALadies and gentlemen, only
guilty men want to know what they get if they cooperate.@ On appeal,
defendant argued, for the first time, that he was denied a fair trial
when the prosecutor elicited testimony that defendant attempted to
plea bargain and commented on the attempt in closing argument. In
resolving this appeal, we held that defendant=s offer to cooperate was
not a Aplea discussion@ within the meaning of Rule 402(f). After an
extensive examination of other cases, we concluded that defendant=s
inquiry into what could be done if he cooperated did not contain the
Arudiments of the negotiation process@ and, thus, was not a plea
discussion. Also, we held that defendant=s decision to make no
statement after hearing the detective=s response to his inquiry was an
indication that defendant did not have a Asubjective expectation@ that
he was negotiating a plea and that, even if defendant=s inquiry was
evidence of defendant=s subjective expectation, that expectation was
not reasonable under the totality of the objective circumstances. Hart,
214 Ill. 2d at 511-12.
The case at bar is quite different. Here, there is evidence that
-37-
defendant did make an offer which contained the Arudiments of the
negotiation process.@ The record suggests that, at some point on July
27, 1994, defendant made an offer to plead guilty to some offense
(involuntary manslaughter or concealment) in exchange for a
particular sentence. However, there is also evidence that defendant=s
offer to plead guilty did not come until August 3, 1994, after the
transcript of his July 27, 1994, statement was reviewed. In either
event, it is clear that any actual offers by defendant to plead guilty
were Aplea discussions@ and, as such, these plea offers, like the
August 15, 1994, written plea offer, would be inadmissible under
Rule 402(f).
As noted earlier, however, defendant is not seeking to suppress
his offers to plead guilty. Indeed, no one ever testified, at either of
defendant=s two trials, that defendant made an offer to plead guilty on
July 27, 1994, or August 16, 1994. Thus, the Adevastating effect@ that
revealing to a jury a defendant=s offer to plead guilty can have on a
case (see Friedman, 79 Ill. 2d at 353), which Rule 402(f) is intended
to prevent, did not occur in this case.
Here, defendant is asking us to find that admissions he made on
July 27, 1994, and August 16, 1994, regarding his involvement in the
disappearance and death of Dr. Dickerman, should have been
suppressed as plea-related discussions, i.e., statements made in
furtherance of his offers to plead guilty. To decide this issue, the facts
surrounding the statements must be considered. For this reason, I
analyze the two dates separately.
July 27, 1994
On July 27, 1994, Springfield police officers went to see
defendant in response to his request and conducted a taped interview.
The transcript of the interview, as well as the officers= testimony,
establishes that prior to any questioning, defendant was advised of his
rights and was specifically told that anything he said could be used
against him. Defendant acknowledged his understanding of these
warnings on the tape and, later, when he signed the transcript.
Nothing on the tape or transcript and no testimony at the motion to
suppress or at trial supports the notion that, prior to giving his
statements, defendant offered to plead guilty to any crime or that his
statements were made in furtherance of such an offer. Instead, the
-38-
evidence strongly suggests that defendant made his statement in an
attempt to cooperate with the police. Thus, as in Hart, the statements
are not plea discussions.
As noted above, there was some evidence presented at the hearing
on the motion to suppress which suggests that, at some point during
defendant=s meeting with police on this date, defendant tried to elicit
from the officers an agreement that his actions constituted some
offense other than murder and that he should be charged with some
other offense. However, based on the record and, in particular, the
testimony elicited from the officers at the hearing on the motion to
suppress, even if defendant did offer to plead guilty on this date, the
admissions defendant made during the taped interview were made
prior to any such offer.
I reach this conclusion based on the totality of the circumstances.
The officers testified that defendant was manipulative and conniving.
We know, too, that he was a good storyteller who could build
elaborate stories, complete with intricate and plausible
embellishments, to suit the situation. This is evident from the letter he
sent to police in August 1992, explaining his rationale for leaving the
state, and the story he told in October 1992, regarding his
whereabouts on August 11 and 12, 1992. It is also clear from the
record that defendant requested the meeting with police after he
learned that it was likely that he would soon be charged with murder.
Defendant knew that the police had investigated his alibi for August
12, 1992, and found that the alibi did not check out. It is reasonable
to conclude, therefore, that one of defendant=s motives for requesting
the meeting was to learn what the police knew about his involvement
in Dr. Dickerman=s disappearance and what the police knew about the
cause of Dr. Dickerman death. Defendant wanted to discern what
evidence the police had so that he could tailor his statements to
conform with the evidence. This explains why, five minutes into the
taped interview, as soon as defendant was asked to explain his
whereabouts on August 12, 1992, defendant asked that the tape be
stopped. It appears that defendant wanted to Atest@ some information
on the officers. For example, defendant suggested that Dr. Dickerman
had not been murdered so he could see the officers= reaction. This is
supported by the officers= testimony that, when the tape was shut off,
defendant began asking them questions about the investigation and
that he became frustrated when they refused to tell him about the
-39-
autopsy results and other information. When defendant was unable to
get the information he wanted, he tried to convince the officers that
he was guilty of some crime other than murder. To that end, he
recounted the story of how he found Dr. Dickerman already dead and
disposed of Dr. Dickerman=s body.
In my view, the contents of the taped interview, as well as
defendant=s behavior, indicate that any offer to plead guilty came
after he had the opportunity to provide the officers with a factual
basis for the lesser charges. The question, then, is whether
defendant=s subsequent plea proposal has the ability to convert his
earlier statements into a Aplea discussion.@ I would answer this
question in the negative. In People v. Friedman, 79 Ill. 2d 341, 353
(1980), this court held Athere is a distinction between a statement
made in the furtherance of a plea discussion and an otherwise
independent admission which is not excluded by our rule.@
Explaining, we held that Awhere a defendant=s subjective expectations
are not explicit, the objective circumstances surrounding defendant=s
statement take precedence in evaluating defendant=s subsequent claim
that the statement was plea related.@ Friedman, 79 Ill. 2d at 353. As
an example, we cited with approval United States v. Levy, 578 F.2d
896 (2d Cir. 1978), wherein the court held:
APlea bargaining implies an offer to plead guilty upon
condition. The offer by the defendant must, in some way,
express the hope that a concession to reduce the punishment
will come to pass. A silent hope, if uncommunicated, gives the
officer or prosecutor no chance to reject a confession he did
not seek. A contrary rule would permit the accused to grant
retrospectively to himself what is akin to a use immunity.
Even statements voluntarily made after Miranda warnings
would be later objected to on the purported ground that they
were made in anticipation of a guilty plea since reconsidered.
A balanced system of criminal justice should not be made to
function in such a swampy terrain.@ (Emphasis added.) Levy,
578 F.2d at 901.
In my view, the timing of defendant=s plea proposal is important.
Rule 402(f) may not be used to retrospectively immunize statements
made before an offer to plead guilty has been proffered. A
defendant=s failure to communicate his subjective expectation denies
-40-
the officers the opportunity to reject the defendant=s proffered
statements. Thus, in the case at bar, even if defendant had a
subjective expectation that his factual statements were being made in
furtherance of some later proposal, that expectation was not
reasonable. Accordingly, I would hold that the factual statements
defendant made on July 27, 1994, were not subject to suppression
because they were independent admissions and not made in
furtherance of any subsequent plea offer.
Finally, even if it is true that defendant made an offer to plead
guilty to a lesser offense at the outset of the July 27 meeting with
police, I would find that, under the objective circumstances, any
subjective belief that defendant had that he was engaged in plea
negotiations was unreasonable. Here, before, defendant gave his
taped interview, defendant was given Miranda warnings and was
explicitly told that his statements would be used against him.
Moreover, as the officers repeatedly testified, whenever defendant
made any offers to plead guilty, they expressly disclaimed any ability
to negotiate a plea. The transcripts of the suppression hearings clearly
show that the officers repeatedly informed defendant that they had no
control over what charges would be filed, that they told defendant
that they were not in a position to negotiate with him, and that
defendant said he understood that the most the officers could do was
to let the State=s Attorney know what offers defendant was willing to
make. In fact, the officers characterized all of defendant=s offers,
regardless of when they were made, as Aunilateral@ attempts to
negotiate.
These factors should take precedence over any subjective
expectation that defendant might have had. Thus, even if defendant
attempted to enter into plea negotiations at the outset of the meeting,
that attempt was rejected by the officers and, for that reason, I would
find that any subjective expectation that defendant may have had that
his taped interview was part of a plea discussion was not reasonable
under the circumstances. Rule 402(f) provides no basis for
suppressing the statements defendant made on July 27, 1994.
August 16, 1994
On August 15, 1994, defendant gave the police officers a written
offer to plead guilty. The next day, however, on August 16, 1994,
-41-
Officers Cox and Williamson returned to the Franklin County jail
with a warrant for defendant=s arrest on the charge of murder. Thus,
defendant=s offer had been rejected.
Officer Cox testified that, when they visited defendant on this
date, they brought with them a book containing the Criminal Code.
He explained at the suppression hearing:
AOfficer Cox: Mr. Jones, in the other interview[,] was
very interested in paperwork, and we wanted to make sure
when we went down there to talk to him in reference to the
warrant that we could show him that we weren=t stretching
anything, we wanted to be able to show him in black and
white what the first degree murderBwhat the statute said was
first degree murder and any other charges he may be curious
about.
Q. So you wanted to be able to show him what the statute
actually said?
A. Yes.
Q. And this was when you were bringing a warrant for his
arrest for that particular charge, first degree murder?
A. Yes.
Q. Okay. Why did you even care what he though at that
point, since he in fact had been charged; is that correct?
A. He had been charged with first degree murder but all
through this investigation I believe as a team we=ve done
everything we could to be straightforward with Mr. Jones,
and he expressed on earlier occasions that he believed it was
involuntary manslaughter and concealment of a homicide,
and we wanted to let him read the words out of the law book
himself to draw that conclusion.@
Detective Williamson also explained what transpired on August
16, 1994:
ADetective Williamson: Mr. Jones, as I=m sure you
know[,] is very thorough, he had a lot of time to read up and
did, he kept himself apprised of a lot of the law and we had
on a couple of conversations talked about the different
statutes under the Illinois law, and we did take that Chapter, I
believe it was still Chapter 38 at that time, it may have
-42-
changed, but we did take that book to Franklin County jail
anticipating that he would want to read that because he did
have materials with him or available to him that he cited
when we did interview him.
Q. [Prosecutor:] You mean like the differences between
first degree, second degree, that type of thing?
A. Well, he did ask questions about that but the materials
he had available were motions to file and more technical
aspects like we=re doing now, so I don=t know if he had a
Chapter 38 and he asked us questions related to that area.@
At some point during defendant=s discussion with the officers on
August 16, 1994, defendant expressed a desire to amend his previous
statement. The officers testified that, once again, they advised
defendant of his Miranda rights. Defendant then told the officers that
he had been present in Dr. Dickerman=s home when Dr. Dickerman
received his bank statement and discovered the forged checks.
Defendant said that Dr. Dickerman became extremely angry with
him, started yelling at him, and had a heart attack while yelling at him
about the checks. Defendant said that Dr. Dickerman fell down and
hit his head on the fireplace.
It is clear that defendant=s factual statements on this date were
independent admissions. It is important to note that there is no
indication that defendant prefaced his statements on this date with a
new offer to plead guilty. No one testified, either at the hearing on the
motion to suppress or at trial, that defendant ever made an offer to
plead guilty on August 16, 1994, or that his statements were part of a
plea discussion. Thus, while defendant may have had a subjective
expectation that his statements on this date were being made in
furtherance of some earlier offer, that subjective expectation was not
communicated, nor was it objectively reasonable. His earlier offer
had been rejected, as evinced by the fact that a warrant had been
issued charging him with murder. The officers who delivered the
warrant brought a Criminal Code with them to show defendant that
his actions constituted murder. Defendant=s additional statements
were made in an effort to convince the officers otherwise.
Defendant was well aware that the officers had no ability to
authorize a change in the charges against him. The officers had
testified on several occasions that they repeatedly told defendant that
-43-
they had no ability to plea bargain and that defendant acknowledged
and understood this. Defendant was knowledgeable and experienced.
He knew that the officers were investigating Dr. Dickerman=s death
and were seeking information from him. Defendant was given
Miranda warnings before he gave his new statement. Defendant
decided to cooperate, with the hope that he could convince the
officers with a new, more plausible story that he did not murder Dr.
Dickerman. Based on the objective circumstances, any subjective
expectations defendant may have had that he was engaged in plea
discussions were not reasonable. I conclude that the statement
defendant made on this date was not a plea discussion and Rule
402(f) simply does not apply.
CONCLUSION
For the reasons set forth above, I would find that defendant=s July
27, and August 16, 1994, statements were independent admissions
and not plea discussions. Therefore, they were not subject to
suppression under Rule 402(f). As a result, I agree with the majority
that defendant=s initial appellate counsel was not ineffective for
failing to challenge the trial court=s ruling on the motion to suppress
with regard to these statements.
JUSTICE FREEMAN joins in this special concurrence.
JUSTICE KILBRIDE, concurring in part and dissenting in part:
I agree with the lead opinion that the trial court did not err in
denying defendant=s motion for substitution of judge (slip op. at 11),
that the Aspecial-circumstances@ exception does not preclude the
application of collateral estoppel in this case (slip op. at 12-13), and
that the State sufficiently proved venue at trial (slip op. at 23-24). I
respectfully disagree, however, with the remainder of its analysis. I
particularly disagree with the rejection of defendant=s claim that his
sixth amendment right to effective assistance of counsel was violated
when his original appellate counsel failed to raise the issue of the
denial of defendant=s motion to suppress his July 27 and August 16
statements.
When examining a claim of ineffective assistance of counsel, we
-44-
apply the two-part test in Strickland v. Washington, 466 U.S. 668,
687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People
v. Evans, 186 Ill. 2d 83, 93 (1999). That test requires the defendant to
show: (1) counsel=s performance fell below an objective standard of
reasonableness; and (2) this deficiency prejudiced the defense
because in its absence a different result was reasonably probable.
Evans, 186 Ill. 2d at 93. To overcome the latter prong, the defendant
must show a differing result was sufficiently probable as to
undermine confidence in the outcome of the proceeding, thus
rendering the trial result unreliable or fundamentally unfair. Evans,
186 Ill. 2d at 93. Both the performance and prejudice prongs must be
satisfied for the defendant to prevail in an ineffective assistance
claim. People v. Sanchez, 169 Ill. 2d 472, 487 (1996).
Here, the lead opinion did not address the second prong of the
Strickland test because it concluded defendant failed to satisfy the
first prong. Slip op. at 15-16. I believe defendant has met both prongs
of the test and begin my analysis with the first prong: whether the
failure of defendant=s original appellate counsel to appeal the
admission of his July 27 and August 16 statements was objectively
reasonable. In defendant=s first appeal, counsel successfully argued
only that defendant=s August 15 statement should have been barred
under Supreme Court Rule 402(f) as part of plea-related discussions.
Appellate counsel never challenged the admissibility of the other two
statements.
I
As the lead opinion notes, not all statements Amade in the hope of
gaining concessions are plea-related statements under Rule 402(f).@
Slip op. at 19. I agree as well with that opinion=s recitation of the
factors relevant to a determination of the objective reasonableness of
a defendant=s subjective expectations, namely, the nature of the
statements, the defendant=s audience, Aand most importantly here,
what the parties to the conversations actually said.@ See slip op. at 20.
I disagree, however, with the application of these factors and the
characterization of the testimony in this case by the lead opinion and
the special concurrence.
In my view, these analyses apply Rule 402(f) far more narrowly
than this court intended in People v. Friedman, 79 Ill. 2d 341, 351-52
(1980). In doing so, they unduly limit the rule=s application only to
-45-
those statements constituting the skeletal offer to plead and those
stating potential plea terms. In contrast, in Friedman this court
recognized that the Rule also broadly encompasses the parties= plea-
related statements. Friedman, 79 Ill. 2d at 351-52. Before examining
these analytical differences in depth, I present the relevant testimony.
The pretrial hearing on defendant=s motion to suppress spanned
several days and included a great deal of pertinent testimony. In
addition, there was extensive related testimony presented at trial,
including significant evidence supporting defendant=s claim that he
attempted to initiate plea negotiations at the July 27 interview and
made additional plea-related statements on August 16. The
determination of whether a particular statement is plea-related must
be made on a case-by-case basis, making the specific evidence
offered critical to the analysis in this case. People v. Friedman, 79 Ill.
2d at 351-52. For this reason, I set forth much of the relevant
testimony verbatim.
During his pretrial testimony, Officer Young acknowledged that
defendant would Aset down some guidelines or whatever that he felt
was [sic] fair to him, that he would like to see happen.@ More
specifically, Young=s testimony revealed that on July 12, 1993,
defendant Aindicated to [Young] that he didn=t believe it was first
degree murder, that the most it could have been would be
concealment of a body and so forth, things of that nature.@ This
testimony establishes that even on that early date defendant was
discussing with the police his beliefs as to the appropriate charges.
Young=s subsequent testimony demonstrates that defendant=s July
27, 1994, interview unequivocally contained the rudiments of a plea
negotiation:
AQ. *** [A]t that time [July 27] [defendant] hadBhe had
told you, for instance, he would be willing to plead to
Involuntary Manslaughter and so forth, correct?
A. I=m not sure if it was on that date or a date after that to
be honest with you.
Q. Do you have your report right there?@ (Emphasis
added.)
After locating the relevant portion of Young=s report, the critical
testimony concerning the July 27 interview continued:
AA. Yes, that would beBif I could, please. I believe you=re
-46-
correct on that, I just wanted to be sure.
Q. Sure.
A. Yes, sir, that is correct.
Q. Okay. And on that occasion he would, for instance he
said, you know, the most he thought it could be is Involuntary
Manslaughter or concealment, correct?
A. Yes, sir, that=s correct.
Q. And that he wanted you to convey to the State=s
Attorney that he=d accept a ten year sentence and no more,
correct?
A. Yes, sir, that=s correct.
Q. And that he wanted it to run concurrent with the
federal charges he was facing, correct?
A. I believe that=s correct, yes, sir.
Q. And he wanted you to convey these things to the
State=s Attorney I believe, correct?
A. That=s correct.
Q. Okay. And you advised him that you would do that and
you would get back to him, correct?
A. I remember telling him we couldn=t negotiate anything
with him.
Q. Right.
A. But I do remember that I told him we would go back to
our boss and, which at that time was Sergeant Conway, and
convey that to him andB
Q. And you told him you would convey it to Mr. Kelley,
Patrick Kelley, with the State=s Attorney=s Office, correct, also
and get back to the Defendant?@ (Emphasis added.)
After being directed to the appropriate page of his report, Young
stated affirmatively: AA. Yes, sir, that is correct, that=s in my report.@
(Emphasis added.)
These facts alone establish that defendant was attempting to enter
into plea negotiations at the July 27 interview by offering specific
charges and sentencing terms acceptable to him. In addition, Young=s
testimony demonstrates that at that time the police agreed to convey
messages to the State=s Attorney on defendant=s behalf in furtherance
-47-
of his negotiation efforts.
Officer Young also provided support for these conclusions in his
subsequent testimony concerning his August 3 interview of
defendant. He confirmed that during that interview defendant again
brought up his desire to negotiate a plea for a 10-year sentence as
well as his request that his offer be conveyed to the State=s Attorney.
Defense counsel asked whether Young Ahad always advised
[defendant] that [Young] would provide the information and so forth
to the State=s Attorney=s Office,@ and Young answered, AYes, sir, that=s
correct.@ (Emphasis added.) The questioning then returned to a
discussion of the July 27 interview:
AQ. Okay. And just briefly as far as a note thatBdo you
recall a note you were to give to the State=s Attorney=s Office
from [defendant]?
A. I remember when we met with Sergeant Conway after
having [sic] coming back from the taped [July 27] interview
with [defendant] that we told Sergeant Conway about
[defendant] wanting to try to negotiate some terms for B for
himself, and Sergeant Conway requested I believe that when
we returned to have [defendant] read the transcript and that
we ask him I believe to put it into writing as to what he
wanted or what he was wanting to say, and I do believe that
heB[defendant] did do that.@ (Emphasis added.)
Notably, all the relevant testimony given by other police
witnesses verified that they did, in fact, return on August 15 to have
defendant put his prior oral offer in writing, lending further
credibility to Officer Young=s account of all the events that transpired
during the July 27 interview. The officer=s testimonial account was
not limited to the official statements defendant memorialized on the
audio tape recording relied on by the lead opinion and the special
concurrence. The testimony establishes that the July 27 interview
consisted of far more than defendant=s taped statement or even the
discussion that took place when the taping was temporarily
interrupted.
It is also noteworthy that Officer Young=s testimony was given in
June 1996, nearly two full years after defendant made the July 27 and
August 16 statements. After such a passage of time, witnesses=
memories can fade and lose the specific detail critical to the
-48-
determination in this case. After reviewing his official reports,
drafted contemporaneous to the interviews, however, Officer Young=s
testimony concerning defendant=s negotiation efforts was
unequivocal. When viewed in its entirety, this testimony, as
confirmed by the officer=s own timely reports, establishes that, at
least by the time of the July 27 interview, defendant was attempting
to negotiate a plea with the State=s Attorney=s office and that the
police agreed to act as his conduit for information. This evidence
establishes that defendant=s July 27 statements were a Aplea-related
discussion@ under Rule 402(f).
Additional support for the claim that defendant=s July 27
statements were plea-related comes from the testimony of Detective
Williamson, who was also present during that interview. He stated
that prior to the interview defendant had requested Aa note@ from the
State=s Attorney=s office concerning the penalties for various
homicide charges as well as the presence of two tape recorders during
the interview. Detective Williamson testified he and Detective Young
complied with defendant=s requests. Thus, the evidence shows that
defendant asked in advance for information about the possible
charges and penalties he was facing, and, at the July 27 interview,
stated he was willing to plead guilty to involuntary manslaughter or
concealment in return for a maximum 10-year sentence to run
concurrently with his federal prison term. In addition, he provided a
statement intended to show he was not culpable of first degree
murder. These factors neatly fit the mold of a conscious plan to enter
into plea negotiations at that time, and in fact, the testimony
establishes that all the parties involved then believed defendant was
attempting to negotiate a plea.
The special concurrence, however, chooses to examine the
various interviews solely as separate events, disrupting the continuity
of the negotiation process begun at the July 27 interview. As it notes,
evidence also exists showing that defendant offered to plead guilty on
August 3 after reviewing the transcript of his July 27, 1994,
statement. Slip op. at 35 (McMorrow, J., specially concurring, joined
by Freeman, J.). From this evidence, the special concurrence infers a
conflict regarding when the guilty plea first occurred. I believe there
is no necessary conflict. The defendant=s additional negotiation
attempt on August 3 does not negate or call into question the validity
of the prior July 27 testimony clearly showing the plea issue was
-49-
broached then as well. As various officers= testimony established,
defendant raised the plea issue on numerous occasions.
Rather than viewing the series of police interviews as unrelated
entities, I recognize the inherent interrelationship between
defendant=s various negotiation attempts, as did the police at the time
of the interviews. By considering each discrete interview as disparate
from the others, however, the special concurrence attempts to
acknowledge the evidence showing that Aat some point during the
defendant=s meeting with police on this date, defendant tried to elicit
from the officers an agreement that defendant=s actions constituted
some offense other than murder and that he should be charged with
some other offense@ (emphases added) (slip op. at 38 (McMorrow, J.,
specially concurring, joined by Freeman, J.)), while ultimately
concluding his statements were independent admissions (slip op. at
44 (McMorrow, J., specially concurring, joined by Freeman, J.)).
I find it hard to characterize defendant=s admitted attempt to
Aelicit ** an agreement@ from the police as anything other than an
offer to plead guilty to a lesser charge, particularly in light of his
contemporaneous reference to a possible set of sentencing terms. As
the previously quoted transcript excerpts establish, both defendant=s
offer to plead to a lesser charge and his specification of acceptable
sentencing terms on July 27 are readily apparent from the record. The
police themselves believed that defendant was attempting to negotiate
a plea. Under those circumstances, I cannot dismiss the statements
defendant made during that interview addressing his involvement in
Dr. Dickerman=s death and the disposal of the body as Aindependent
admissions@ or mere offers to cooperate.
The context of defendant=s statements shows they were intended
to support his efforts to negotiate a plea to some charge other than
first degree murder. It is difficult to envision why such a purportedly
savvy defendant would make those types of statements unless, in fact,
he made them in support of his attempt to negotiate a plea. We must
not forget that Rule 402(f) does not preclude the admission of only
statements directly offering to plead guilty or present possible terms
and conditions for a plea agreement. Rather, it broadly encompasses
all plea-related discussions, including statements supporting the
defendant=s desired disposition of the criminal case . See 177 Ill. 2d
R. 402(f); Friedman, 79 Ill. 2d at 352-52 (noting that plea-related
-50-
statements are inadmissible under Rule 402(f)). Read in context, I do
not believe the statements concerning defendant=s involvement in this
case can be dismissed as Aindependent admissions.@
I also cannot agree with the special concurrence=s insistence that
the requirement of a prefatory offer does not conflict with our
instructions in Friedman. Slip op. at 28 (McMorrow, J., specially
concurring, joined by Freeman, J.). Indeed, Friedman prominently
discussed the absence of a need for a Apreamble@ before a discussion
may be deemed plea-related. Friedman, 79 Ill. 2d at 352. As we
explained there:
ANor can we agree that the parties must be seated at the
negotiating table before our rule applies. A statement made
as an offer to enter negotiation is indistinguishable from a
statement made at an advanced stage of the negotiation
process in terms of its impact upon a jury. Statements related
to either stage of this process are equally devastating in the
trial of the accused. In determining whether a statement is
plea related, we do not require >a preamble explicitly
demarcating the beginning of plea discussions= [citation].
But where a preamble is delivered, such as defendant=s
inquiry related to >making a deal= in the present case, it
cannot be ignored. [Citation.] This is a clear indication of
defendant=s intent to pursue plea negotiations.@ (Emphasis
added.) Friedman, 79 Ill. 2d at 352.
Given our clear statement in Friedman, I cannot reconcile the special
concurrence=s requirement of a prefatory offer with our precedent.
Finally, I find that the conflicting testimony in the evidence is far
from conclusive in establishing that defendant made negotiation
attempts only after making the statements at issue
The special concurrence also concludes that Aone of defendant=s
motives for requesting the meeting was to learn what the police knew
about his involvement in Dr. Dickerman=s disappearance and what
the police knew about the case of Dr. Dickerman=s death.@ (Emphasis
added.) Slip op. at 39 (McMorrow, J., specially concurring, joined by
Freeman, J.). While that may well have been one of defendant=s
motives in meeting with the police, he could easily have held
additional motives, such as a desire to enter into plea negotiations.
Indeed, the latter possibility is supported by his advance request for
-51-
information on the possible charges and penalties as well as his
subsequent actions during the interview, laying out acceptable terms
and condition. These actions demonstrate a plan to pursue
negotiations. I also note that neither Rule 402(f) nor any cited
precedent precludes a finding that a defendant was attempting to
negotiate a plea merely because he is motivated by self-interest and a
desire to obtain the best possible deal. Those motivations presumably
underlie the negotiation efforts of most, if not all, defendants. Even if
defendant wished to obtain additional information from the police, it
does not negate his simultaneous intent to negotiate a favorable plea.
The record is clear that the police who conducted the interviews
understood that defendant was attempting to negotiate a plea. Indeed,
the detectives acknowledged that they had a mutual understanding
with defendant and that they agreed to Arun the options by the State=s
Attorney.@ The testimony on this point is further supported by their
actions. Although they initially informed defendant they could not
make a deal themselves, they told him they would relay information
to the prosecution to expedite the negotiation process and ultimately
did so.
Moreover, only A[w]here a defendant=s subjective expectations
are not explicit, [do] the objective circumstances surrounding
defendant=s statement take precedence in evaluating defendant=s
subsequent claim that the statement was plea-related.@ Friedman, 79
Ill. 2d at 353. Here, I believe the evidence readily supports the
conclusion that defendant=s subjective expectations were explicit. The
testimony shows that on July 27 defendant asked the police to take
his specified terms and conditions for a possible plea agreement to
the prosecutor for review. That is an explicit expression of a plea
offer. In light of the transcript, I reject the lead opinion=s
characterization of the evidence of a plea offer as minimal, consisting
of only Aveiled references of an offer@ (slip op. at 17 (McMorrow, J.,
specially concurring, joined by Freeman, J.)) and Aonly vague
references to offers to bargain@ (slip op. at 19 (McMorrow, J.,
specially concurring, joined by Freeman, J.)).
Even if defendant=s expectations are viewed objectively, however,
they remain reasonable under the totality of the circumstances. The
record indicates that the police contacted defendant=s family in
Indiana the month before the July 27 interview and told them that if
he was not culpable of murder, he should contact them. With the
-52-
knowledge that he would soon be charged with murder, defendant
asked for information about possible charges and applicable penalties
and requested a meeting, ultimately scheduled for July 27. At that
meeting, he talked to police about the investigation, and he gave them
a list of acceptable charges and sentencing options. The testimony
establishes that the police essentially agreed to act as a liaison to the
State=s Attorney and to convey these express terms for defendant.
Furthermore, at the time they accepted this role, they believed
defendant was attempting to conduct plea negotiations. Objectively
viewed at the time of the statements, the parties= interchange is a
plea-related discussion under Rule 402(f).
As for defendant=s August 16 statements, Detective Cox testified
that he believed that defendant had a subjective expectation that he
was negotiating a plea. He succinctly stated that Adefendant attempted
to negotiate terms for himself@ (emphasis added) at each of the
interviews conducted on August 3, August 15, and August 16.
Detective Cox=s testimony restated with absolute clarity that
defendant had been attempting to negotiate plea terms with the State,
that the police recognized those attempts as plea negotiations, and
that they had been conveying information in furtherance of that
effort. The record shows that, after determining Detective Cox had
interviewed defendant on August 3, August 15, and August 16,
defense counsel specifically inquired into defendant=s negotiation
attempts:
AQ. And all of those occasions [August 3, August 15, and
August 16] [defendant] would indicate and tell you he would
like to work out a deal and so forth, correct?
A. Yes.
Q. And he was attempting to negotiate with you, correct,
or the detectives or at least to have you convey that to the
State=s Attorney=s Office?
A. Yes.
Q. And he was informed that in fact what he had told you
and so forth and the deal he was proposing would in fact be
conveyed to the State=s Attorney=s Office, correct?
A. Yes.
Q. And basically he wasByou were here when Detective
Young testified, he was proposing a deal whereby he would
-53-
be sentenced to ten years concurrent on a federal charge,
correct?
A. Yes.@ (Emphasis added.)
As the lead opinion notes, the most important factor in
determining whether defendant=s July 27 and August 16 statements
were plea-related is Awhat the parties to the conversations actually
said.@ See slip op. at 20. Here, the record is replete with testimony
that defendant repeatedly evinced an obvious and explicit desire to
negotiate that was understood by everyone, as well as an expectation
that his negotiation efforts would be conveyed to the State=s Attorney.
The police substantiate that expectation by readily agreeing to
transmit information and messages between defendant and the State=s
Attorney in furtherance of defendant=s negotiation effort. At each of
the interviews held on July 27, August 3, August 15, and August 16,
the police witnesses stated that defendant was trying to negotiate a
deal and that the officers agreed to participate in the process by
relaying information for him. Even the prosecution recognized these
negotiation attempts in its closing argument to the jury. The record in
this case amply demonstrates that the parties to the conversations at
issue here understood that defendant was attempting to negotiate a
plea and verbally agreed to participate in that effort, defendant by
specifying initially acceptable terms and the police by acting as the
State=s Attorney=s liaison by conveying those terms and any
responses. Defendant=s statements during the July 27 and August 16
interviews flowed from defendant=s subjective beliefs as bolstered by
that mutual understanding. See Friedman, 79 Ill. 2d at 353 (requiring
merely the Arudiments of the negotiation process, i.e., a willingness
by defendant to enter a plea of guilty in return for concessions by the
State@). His repeatedly expressed desire to Amake a deal@ cannot
properly be ignored. Friedman, 79 Ill. 2d at 353.
Furthermore, the special trip the police made to Big Muddy
Correctional Center on August 15 to obtain a written copy of
defendant=s prior oral statement would demonstrate to an objectively
reasonable person that this defendant was, at a minimum, led by the
police to believe he was, in fact, conducting negotiations with the
State=s Attorney through his discussions with the officers.
The serving of a murder warrant on August 16 did not necessarily
alter defendant=s expectations or its objective reasonableness. From a
-54-
practical standpoint, the issuance of a charge is not the necessary end
to all negotiations. In some instances and for a variety of reasons,
plea negotiations may continue or even start after a charge is filed.
Moreover, even though the police served defendant with a murder
warrant, both detective Williamson and Cox testified their purpose in
going to see defendant that day was Ato interview@ him. In fact,
Detective Cox admitted at trial that on August 16 he was Asaying to
[defendant] basically tell us why it=s less than First Degree Murder@
and Awanted [defendant] to explain it in his words why it was less
than First Degree Murder ***.@ Cox also testified that he showed
defendant a book of statutes defining various homicide charges
during the session. This fact was verified by Detective Williamson,
lending credence to defendant=s assertion that the parties were still
conducting negotiations even though the warrant was served during
the interview. Under these circumstances, I conclude that defendant=s
expectations that he was continuing to pursue plea negotiations on
August 16 were objectively reasonable. Overall, I believe the facts
support the conclusion that defendant had a subjective expectation of
conducting plea negotiations on July 27 and August 16 and that this
expectation was objectively reasonable under the totality of the
surrounding circumstances.
II
In addition to differing in my characterization and application of
the facts in this case, I also disagree with the lead opinion=s
interpretation and application of this court=s recent opinion in Hart. I
strongly believe the factual differences between Hart and the instant
case are striking and compel the suppression of defendant=s
statements here. First, as the lead opinion accurately states, Hart
stands for the proposition that A >mere offers to cooperate= @ are not
excluded unless they are accompanied by A > Athe rudiments of the
negotiation process.@ = @ Slip op. at 17, quoting Hart, 214 Ill. 2d at
504, quoting Friedman, 79 Ill. 2d at 353. Here, Officer Young=s
testimony and contemporaneous report establish that defendant was
attempting to enter into plea negotiations at the July 27 interview and
specified acceptable terms at that time, distinguishing this case from
the mere offer of cooperation established in Hart.
Second, the lead opinion states that Hart Aheld that because the
-55-
defendant did not request that the detective initiate contact or convey
terms to the prosecutor or, alternatively, specify the terms he would
require in exchange for pleading guilty, the rudiments of the
negotiation process were not present, thereby rendering the
defendant=s statements admissible.@ (Emphasis added.) Slip op. at 17,
citing Hart, 214 Ill. 2d at 511-12. While I agree that the absence of a
request by the defendant was important in that case because it
provides critical factual background for the court=s ultimate Rule
402(f) determination, the necessity of a request does not constitute a
holding of this court. The absence of a request to involve the
prosecutor was one factor in our decision that Rule 402(f) did not
apply. It was not the sole determinant. We did not hold that
defendants must make that specific request before their plea-related
discussions will be held inadmissible under the Rule. The totality of
the circumstances is still the controlling standard in that
determination.
Applying that standard here, I note that this case presents exactly
the opposite factual scenario from Hart. Here, the police testified
both before and during trial that defendant did ask them to contact the
prosecutor, did attempt to convey possible plea terms to the
prosecutor, and did concretely identify the terms he desired. Contrary
to the lead opinion=s assertion that defendant made only Aveiled
references of an offer@ and that the even the existence of an offer was
unclear (slip op. at 17), the record establishes that defendant made an
express offer to negotiate a plea bargain, going so far on July 27,
1994, as to specify verbally the charges and sentencing conditions he
was willing to accept.
Even the State=s closing argument in the first trial specifically
relied on defendant=s attempts during the police interviews to
negotiate a deal whereby his release from prison for the homicide
would coincide with his release on his forgery conviction. These facts
again distinguish this case from Hart, where the court relied on the
prosecutor=s failure to ever Astate[ ] or impl[y] that defendant offered
to enter into >plea negotiations= or >plead guilty,= which is what Rule
402(f) is intended to prohibit.@ Hart, 214 Ill. 2d at 512. Here,
defendant=s statements, made as part of his acknowledged attempts to
negotiate a plea, were used against him in closing arguments in
contravention of the purpose at the heart of Rule 402(f).
-56-
Thus, unlike Hart, where this court relied on the absence of any
specific evidence that the defendant actually attempted to negotiate a
plea, this case is replete with such evidence. This critical factual
difference readily distinguishes this case from Hart. The testimony
here undeniably established Athe rudiments of the negotiation
process@ (Hart, 214 Ill. 2d at 511; slip op. at 17), mandating a
differing result, namely the exclusion of defendant=s plea-related July
27 and August 16 statements.
III
Although the lead opinion hypothetically accepts Adefendant=s
assertion that he conveyed some offer to bargain on July 27,1994, and
August 16, 1994,@ and proceeds to the next step of its analysis (slip
op. at 17), it then falters again, this time in its interpretation and
application of Friedman. I begin with the lead opinion=s interpretation
of Friedman.
A
The lead opinion concludes that Friedman held Athat no other
possible purpose for the defendant=s statement existed [apart from
plea negotiations]@ (slip op. at 17), but this assertion is unsupported
by the text of that opinion. Friedman is entirely silent on the possible
purposes for the defendant=s statement, stating only that the court did
not Aquestion *** the reasonableness of defendant=s expectations
under the circumstances.@ Friedman, 79 Ill. 2d at 352-53. The opinion
provides absolutely no explanation for that conclusion, and there is
no definitive basis for divining one now. The actual explanation
could be as simple as the parties= failure to argue the objective
reasonableness of the defendant=s expectations. Regardless of the true
reason, the absence of any examination of the Apossible purposes@
underlying the defendant=s statement cannot be properly extrapolated
into the conclusion that the Friedman court held the bare assertion
before it was made solely for the express purpose of plea
negotiations. See slip op. at 17. While that presumptive Aholding@
makes it possible for the lead opinion to distinguish Friedman
conceptually from this case, it is based on pure speculation and
cannot legitimately be used to differentiate the two cases.
The lead opinion makes another interpretive error by advancing
-57-
the proposition that Friedman Aconsidered the admissibility of a bare
offer to plea [sic], nothing more@ (slip op. at 17), contrasting it with
the more robust statements made by defendant here. My examination
of Friedman reveals it does not limit the exclusionary effect of Rule
402(f) to bare plea offers. Indeed, that proposition would be contrary
to common sense and to the language of both the rule and Friedman.
Application of the rule is not restricted to bare plea offers. The rule
precludes the admission of both Aplea discussion[s]@ and Aany
resulting agreement, plea, or judgment.@ 177 Ill. 2d R. 402(f). True to
the breadth of the rule=s scope, Friedman even broadly refers to the
defendant=s bare offer as Aa plea-related discussion.@ (Emphasis
added.) Friedman, 79 Ill. 2d at 352. Surely Rule 402(f) cannot stand
for the proposition that a bare offer to plead is inadmissible while
more detailed plea discussions are properly admitted. By attempting
to distinguish Friedman based on the depth of the parties= plea-related
discussions, the lead opinion unnecessarily restricts the application of
Rule 402(f) and conflicts with this court=s intent in adopting that rule.
As we explained in Friedman, A[t]he purpose of our rule is to
encourage the negotiated disposition of criminal cases through
elimination of the risk that the accused enter plea discussion at his
peril [Citations.] To accomplish this purpose, the boundaries of our
rule must of necessity be delineated in relation to the reasonable
expectations of the accused at the time the statement was made.@
(Emphasis added.) Friedman, 79 Ill. 2d at 351.
AA statement made as an offer to enter negotiation is
indistinguishable from a statement made at an advanced stage of the
negotiation process in terms of its impact upon a jury. Statements
related to either stage of this process are equally devastating in the
trial of the accused.@ (Emphasis added.) Freidman, 79 Ill. 2d at 352.
Although statements deemed inadmissible under the rule must invoke
the Arudiments of the negotiations process@ (Friedman, 79 Ill. 2d at
353; Hart, 214 Ill. 2d at 504), it does not logically follow that
statements encompassing more than the bare rudiments of negotiation
may be admitted. More elaborate statements are inadmissible if they
are Arelated@ to plea discussions. See 177 Ill. 2d R. 402(f) (stating
A[i]f a plea discussion does not result in a plea of guilty, *** neither
the plea discussion nor any resulting agreement, plea, or judgment
shall be admissible against the defendant in any criminal
proceeding@). See also Friedman, 79 Ill. 2d at 351 (recognizing that
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Aplea-related statements@ are protected under the rule).
I believe Friedman is misapplied again in the lead opinion=s
comparison of the circumstances surrounding defendant=s August 15
written statement, previously excluded under Rule 402(f), to his July
27 and August 16 statements. That section appears to assert that
defendant=s August 15 statement was inadmissible because it was
made at the behest of the police, who Avisited defendant for the sole
purpose of obtaining defendant=s handwritten version of the events
for the State=s Attorney=s review@ Afor the sole purpose of
negotiations.@ Slip op. at 20. Thus, according to the lead opinion,
defendant=s oral statements on July 27 and August 16 statements,
unlike his written August 15 statement, were properly admitted
because they were Aunsolicited@ offers not made Aat the direction of
the detectives.@ See slip op. at 20.
While this recitation of the record is facially accurate, the lead
opinion=s subsequent conclusion suffers from two fatal flaws. First, it
ignores the additional fact that defendant had already orally given the
police the same terms as those contained in the August 15 writing. As
the police witness acknowledged, defendant gave the earlier oral
statement with the mutual understanding that it would be conveyed to
the prosecutor as part of plea negotiations. The accuracy of this
depiction of the parties= understanding is amply demonstrated by the
return of the police on August 15 at the behest of the prosecutor to
get the statement in writing. Second, by overlooking the ongoing
nature of the plea discussions in this case as well as the police=s vital
role as a voluntary messenger and focusing instead on the plans and
motives of the police and the State=s Attorney, the lead opinion errs
by effectively making the subjective intentions of the police and the
State=s Attorney the key determinants of the objective reasonableness
of defendant=s expectations. Nothing in our precedent supports that
rationale.
That approach turns the proper analysis on its head and again
leads to a direct conflict with Friedman. In Friedman, not only were
the inadmissible statements entirely unsolicited (Friedman, 79 Ill. 2d
at 350, 352), but they were made to a person the defendant knew was
an investigator on the case and whom defendant had previously
spoken to on a number of occasions (Friedman, 79 Ill. 2d at 350).
The same can be said in the instant case. This court has also explicitly
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declared that the key to delineating the boundaries of Rule 402(f) is
Athe reasonable expectations of the accused at the time the statement
was made.@ Friedman, 79 Ill. 2d at 351. Therefore, it is manifestly
erroneous to use the purely subjective intentions of the police and the
prosecutor to determine the objective reasonableness of defendant=s
expectations. Nonetheless, that is the approach adopted in the lead
opinion.
B
I also dispute the lead opinion=s broad references to defendant=s
statements as Aexculpatory@ and designed to Aexonerate@ him. Slip op.
at 20. To that extent, I agree with the special concurrence=s discussion
of that portion of the lead opinion. Slip op. at 27 (McMorrow, J.,
specially concurring, joined by Freeman, J.). Furthermore, I reject the
role those references play in the lead opinion=s analysis.
Rule 402(f) provides, in pertinent part:
AIf a plea discussion does not result in a plea of guilty,
*** neither the plea discussion nor any resulting agreement,
plea, or judgment shall be admissible against the defendant in
any criminal proceeding.@ (Emphasis added.) 134 Ill. 2d R.
402(f).
Nowhere in the express language of the rule is there a requirement
that to be inadmissible statements must be inculpatory. Conversely,
nowhere in the rule is there a limitation that Apurely exculpatory@
plea-related statements may be deemed outside its scope.
Under the plain language of Rule 402(f), statements constituting
any part of a Aplea discussion@ are barred from admission. The
majority=s resort to this Ainculpatory/exculpatory@ distinction to
bolster its conclusion that defendant=s statements were properly
admitted is not supported by either the language of the rule or
Friedman.
In Friedman, this court used the rule=s broad term Aplea-related
discussion@ in its analysis and correctly applied it to minimal
statements at issue in that case. Friedman, 79 Ill. 2d at 352-53. In
those statements, the defendant did not admit his guilt of the charged
offense or even provide evidence that he had committed any crime,
yet the statements were held to be inadmissible under the
purposefully broad reach of Rule 402(f). See generally Friedman, 79
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Ill. 2d at 351 (explaining that A[i]mplicit in the promulgation of this
rule was our recognition of the significance of the negotiation process
to the administration of justice [citation] and our appreciation of the
devastating effect of the introduction of plea-related statements in the
trial of the accused [citation]. The purpose of our rule is to encourage
the negotiated disposition of criminal cases through elimination of
the risk that the accused enter plea discussion at his peril@). I cannot
find any basis for making a distinction between the admissibility of
statements based simply on the inculpatory or exculpatory nature of
their contents under either Rule 402(f) or Friedman, nor can I support
the application of that distinction here.
C
In addition to my differing legal analysis of Friedman, I disagree
with the lead opinion=s application of that case to the facts here. Thus,
I engage in a brief comparative analysis of factual aspects of the two
cases. My review will necessarily be brief because my prior
discussion has noted a myriad of similarities between the facts in
Friedman and this case. While the circumstances surrounding each
case must be evaluated to determine whether the discussion was plea-
related, I assert that the facts in this case are far more similar to those
in Friedman, where the defendant=s statements were held to be
inadmissible under Rule 402(f), than to Hart, where the defendant=s
statements were admitted because they did not constitute even the
bare rudiments of the negotiation process.
In Friedman, this court found the defendant=s statements
inadmissible despite the defendant=s knowledge that he was speaking
to an investigator rather than the State=s Attorney when he made the
statements. The defendant=s knowledge of the listener=s identity was
established because he had initially called the investigator himself
and left a message requesting a return call on Aa >very urgent= matter.@
Friedman, 79 Ill. 2d at 350. Further emphasizing the defendant=s
knowledge of the investigator=s identity, the same individual had
previously interviewed the defendant approximately three times
earlier.
Similarly, in this case the extensive series of interviews and other
contacts between the police and defendant undeniably establish
defendant=s knowledge that he was not dealing with the State=s
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Attorney when he attempted to negotiate. This knowledge, however,
does not constitute an impediment to finding defendant=s statements
to be plea attempts any more than it did in Friedman, where the
circumstances were analogous.
Moreover, the investigator in Friedman informed the defendant
he had Ano control over@ defendant=s request and even proceeded to
identify the appropriate contact person for defendant. Friedman, 79
Ill. 2d at 350. Thus, there can be no merit to any protestation that a
different outcome is warranted in this case because here the police
were not authorized to conduct negotiations. Indeed, the conduct of
the police themselves belies their asserted inability to participate in
plea negotiations. The police admitted repeatedly relaying messages
and information between their supervisor, the prosecution, and
defendant. In their testimony, the officers readily acknowledged their
role in this communication network as well as their belief that their
willingness to convey information to expedite the negotiation process
comprised part of the parties= Aunderstanding.@
Under these circumstances, as in Friedman, I conclude that not
only did defendant subjectively believe he was engaged in plea
negotiations, but, as in Friedman, that those beliefs were objectively
reasonable in light of the conduct of the police and the State=s
Attorney. The officers involved in the interviews testified that they
believed that defendant was attempting to conduct negotiations. The
prosecutor in the first trial appears to have held a similar belief
because he repeatedly informed the jury of defendant=s negotiation
attempts. Viewed objectively, the combination of the officer=s
agreement to act as a communication conduit and State=s Attorney=s
use of that conduit indicates the objective reasonableness of
defendant=s beliefs. A reasonable person in defendant=s position
would not have known that the officers who have been voluntarily
serving as his link to the State=s Attorney were behaving
disingenuously and actually had no intention of finalizing a plea
arrangement.
Although the officers= conduct may have been prompted by the
hope of winning defendant=s confidence and thereby garnering
additional information, that strategy turns the defensive shield created
by Rule 402(f) into an offensive sword for the State. Defendants
caught in such a strategic twist are not objectively unreasonable for
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unwittingly making potentially damaging statements during their
negotiation attempts. The injustice of such an investigative strategy is
even more manifest where, as here, all the parties involved are fully
aware of the defendant=s subjective beliefs. Upholding the use of this
type of investigatory tactic under those circumstances violates the
purpose underlying Rule 420(f), namely, Ato encourage the negotiated
disposition of criminal cases through elimination of the risk that the
accused enter plea discussion at his peril.@ (Emphasis added.)
Friedman, 79 Ill. 2d at 351.
By failing to recognize that the facts of this case are substantially
more similar to those in Friedman than to those in Hart, the lead
opinion and the special concurrence have started this court down a
path destined to undermine the fundamental protections intended by
Rule 402(f) and upheld in Friedman. If this court wishes to follow the
lead of our federal courts and limit the reach of our rule, it should do
so expressly by changing the language of the rule rather than by
unjustifiably narrowing the application of the existing language. I
cannot silently countenance the latter approach.
IV
After reviewing the record, I find appellate counsel=s decision to
appeal only the trial court=s refusal to suppress the August 15
statement inexplicable. In relevant part, defendant=s posttrial motion
was based on the allegation his statements were inadmissible because
they were made during the course of plea negotiations, and the
testimony soundly supports that argument.
Defendant=s original appellate counsel=s failure to appeal the
denial of defendant=s motion to suppress his July 27 and August 16
statements may have been predicated on an overly narrow reading of
defendant=s posttrial motion, combined with an inadequate
examination of the remainder of the record. In relevant part,
defendant=s posttrial motion argued A[t]hat the court improperly
allowed the State to introduce evidence of plea discussions between
the defendant and the Springfield Police Department, and,
specifically, a note obtained on August 15, 1994, whereby the
defendant set forth what plea agreement he would accept to dispose
of this cause of action.@
Rather than limiting itself to challenging the admissibility of the
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August 15 note, as appellant counsel appears to have interpreted it,
the motion cites both Aevidence of plea discussions@ and the August
15 written statement. Notably, the language in the motion refers to
plea >discussions,@ in the plural, and uses the conjunctive (Aand@)
rather than the disjunctive before Aspecifically@ listing the note. A
careful reading of the motion indicates it challenged the denial of
defendant=s pretrial motion to suppress because the statements were
plea-related. Original appellant counsel, however, appears to have
focused solely on the August 15 note that was specified in the
motion, neglecting to appeal the introduction of the other disputed
statements. Regardless of appellate counsel=s actual intent, this
omission is both inexplicable and unjustified based on a thorough
review of the record, indicating that counsel=s performance fell below
an objective standard of reasonableness.
Cumulatively, defendant=s July 27, August 15, and August 16
statements constituted the strongest evidence the State presented
against defendant at trial. In addition, appellate counsel should have
known the damaging July 27 and August 16 statements would come
in again at a new trial unless defendant could avoid the preclusive
effects of collateral estoppel by overcoming the heavy burden of
showing either special circumstances (see People v. Enis, 163 Ill. 2d
367, 386 (1994)) or a violation of fundamental fairness (see People v.
Gaines, 105 Ill. 2d 79, 91 (1984)).
Although defense counsel possesses broad latitude to choose
appropriate legal strategy in each case (see People v. Fuller, 205 Ill.
2d 308, 331 (2002)), I can conceive of no legitimate strategic
advantage to appealing only one of three damaging, inconsistent
statements, given the surrounding circumstances. Thus, I conclude
the conduct of defendant=s original appellate counsel fell below an
objectively reasonable standard of professional performance.
V
Having determined defendant has met the burden of overcoming
the first prong of the Strickland test, I turn next to the second prong,
requiring a showing of prejudice due to counsel=s deficient
performance (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S.
Ct. at 2064; Evans, 186 Ill. 2d at 93). This determination requires an
examination of the effect of the improperly admitted statements on
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defendant=s trial.
Taken together, defendant=s statements undoubtedly constituted a
substantial factor in his conviction for first degree murder. Indeed,
they were the primary evidence linking him to the death of Dr.
Dickerman. The remaining circumstantial evidence alone provides a
far more tenuous basis for convicting defendant. Recognizing the
importance of defendant=s statements, the State heavily emphasized
them to the jury during trial.
Moreover, conflicts between the statements undoubtedly
prejudiced defendant=s case by undermining his credibility as well as
his trial claim that he was not involved in any way in Dr.
Dickerman=s death. The State meticulously used every opportunity to
point out to the jury the shifting nature of defendant=s account over
time and expressly contended during its closing argument that both
the evidence and common sense established that defendant was a liar
and a schemer. In its closing argument, the State pointed out how
over the course of the interviews defendant Afashioned a little bit
more of a story, and every time he fashioned and drafted and styled
and tailored a new story, it was at odds at what he had said
previously.@ Later, the State explicitly called defendant a liar,
sprinkling the details of his various statements into its closing
argument for support. Finally, in its rebuttal argument, the State
raised the conflicts in defendant=s statements by asking the jury
whether it was Areasonable to lie [at the first opportunity] and then to
lie again and then to in =94 [sic], two years later after he already says,
>Oh, I never had anything to do with the forgeries=, to lie about that
and then plead guilty, and then in 1994 to lie again and to lie again?@
Clearly, the State used the variations in defendant=s statements to the
police to undermine his credibility in a case based exclusively on
circumstantial evidence and inferences.
These factors are sufficient to establish that defendant was
prejudiced by the admission of his July 27 and August 16 statements,
satisfying the second prong of the Strickland test. Having found both
prongs of the Strickland test are met, I conclude defendant=s right to
effective assistance of counsel was violated in his first appeal and
would reverse his conviction and remand the cause for a new trial.
VI
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Because I would remand this cause, it is necessary to consider
whether retrial invokes double jeopardy concerns. The double
jeopardy clause of the fifth amendment to the United States
Constitution and the corresponding clause in the Illinois Constitution
have been construed in the same manner. People v. Moss, 206 Ill. 2d
503, 535 (2003). Both clauses protect criminal defendants against
multiple prosecutions for the same offense. Jones v. Thomas, 491
U.S. 376, 381, 105 L. Ed. 2d 322, 331, 109 S. Ct. 2522, 2525 (1989). In
examining whether there was sufficient evidence to support a conviction
in this case, and therefore avoid subjecting defendant to double jeopardy
on remand, this court may consider all the evidence submitted at the
prior trial, even if it was improperly admitted. People v. Olivera, 164 Ill.
2d 382, 393 (1995). Circumstantial evidence must be reviewed under the
same standard as direct evidence for this purpose. People v. Pollock, 202
Ill. 2d 189, 217 (2002).
Viewing the evidence in the light most favorable to the prosecution
to determine whether any rational trier of fact could have found the
essential elements of the crimes beyond a reasonable doubt (see, e.g.,
People v. Collins, 106 Ill. 2d 237, 261 (1985)), I would hold the
evidence in this case was sufficient. The victim discovered defendant
had forged some of his checks and confronted defendant with this
information in his home shortly before his disappearance. Drops of the
victim=s blood were found in the home, and defendant admitted to
putting the body in the trunk of the victim=s car and disposing of it in
Missouri, where it was found. While defendant did not admit to actually
killing Dr. Dickerman, there was sufficient evidence for a reasonable
jury to find defendant criminally responsible for his death. Thus, double
jeopardy considerations are not implicated, and retrial is permissible. See
People v. Fornear, 176 Ill. 2d 523, 535 (1997).
CONCLUSION
In sum, I would hold defendant=s right to effective assistance of
counsel was violated by his original appellate counsel=s inexplicable
failure to appeal the denial of defendant=s motion to suppress all three of
his potentially damaging statements as part of inadmissible plea
negotiations. Counsel=s failure to appeal the admission of defendant=s
July 27 and August 16 statements fell below an objectively reasonable
standard of performance. Moreover, the improper admission of the
statements prejudiced defendant=s case and seriously undermined the
reliability of his conviction. For this reason, I would reverse defendant=s
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conviction and remand the cause for further proceedings. Under this
disposition of the case, the other arguments raised on appeal and
resolved in the lead opinion would not need to be addressed.
Accordingly, I respectfully concur in part and dissent in part.
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