People v. Pierce , 2021 IL App (2d) 190205-U ( 2021 )

2021 IL App (2d) 190205-UNo. 2-19-0205
Order filed June 3, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-2704
)
GEORGE W. PIERCE III, ) Honorable
) Mark L. Levitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court.
Justices Hutchinson and Zenoff concurred in the judgment.
ORDER
¶1 Held: Defendant’s statements to police at the scene of his arrest were not statements in
anticipation of plea negotiations and, thus, the trial court did not err in admitting
them. First, defendant’s statements did not manifest a subjective intent to enter into
plea negotiations. Second, even if his statements could be so construed, it would
be objectively unreasonable for defendant to believe that the police had the
authority to undertake plea discussions in the immediate aftermath of defendant’s
arrest. Therefore, we affirmed the judgment.
¶2 At issue in this appeal is whether statements defendant, George W. Pierce III, made to
police officers as they prepared to transport defendant to the police station were barred under
Illinois Supreme Court Rule 402(f) (eff. July 1, 2012) because the statements were made in
2021 IL App (2d) 190205-Uanticipation of plea negotiations. We determine that the statements were not made in anticipation
of plea negotiations and that, thus, they were properly admitted. Accordingly, we affirm.
¶3 I. BACKGROUND
¶4 Before trial, defendant filed a motion in limine, seeking, among other things, to bar the
State from playing at trial “any squad video or body worn camera which contains immaterial,
irrelevant and prejudicial images or statements by police officers, dispatch, the defendant’s
children or the defendant.” The motion was not more specific about the video content.
¶5 At a hearing on the defendant’s motion, defense counsel commented there was a large
amount of body-camera video. Counsel proposed that the State identify which parts it intended to
introduce. The State remarked:
“The defendant made some statements on that body camera, including some
statements that counsel alluded to regarding making a deal. And the State would draw a
conclusion making a deal in reciprocation for getting him an easier—sentence on whatever
he’s dealing with. Consciousness of guilt, [Y]our Honor. That’s a body camera video we
do intend to introduce.”
The State elaborated that, as defendant was placed in a squad car, he made a number of
“spontaneous utterances,” “offering to do some drug deals in exchange—well, in exchange for
leniency.” Defense counsel responded:
“With regards to the statements that’s on the body camera regarding making a deal,
there was an agreement. I agreed a hundred percent. So, based on that, I don’t have any
issue with that being played.”1
1
Neither party has explained what this agreement entailed, and this court has not found
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2021 IL App (2d) 190205-UThe trial court denied in part defendant’s motion in limine and allowed the State to present at trial
the body-camera video recording of the exchange between defendant and the officers that arrested
him.
¶6 Evidence presented at trial revealed that, on the afternoon of October 9, 2016, Rafael
Arroyo, who was 63 years old, was working in his yard with his grandson, Joel Montes, whom
Arroyo believed was involved in a gang. While the two were working, Arroyo saw defendant
looking over the fence that separated Arroyo’s property from the neighboring alley. Defendant
was standing on one of the posts that Arroyo installed next to the alley to prevent cars from hitting
the fence while driving through the alley. Arroyo testified that defendant, while standing on one
of these posts, fired two shots at Arroyo and then fired another two shots at Joel.
¶7 Wesley Montes, Arroyo’s son-in-law who lived upstairs with his family in Arroyo’s house,
heard gunshots being fired and looked out the window. He saw defendant and defendant’s son,
Anthony Pierce, standing on two of the posts that abutted the alley. Wesley saw Anthony, who he
knew was a gang member, fire a gun at Arroyo and then at Joel, who Wesley knew was a member
of a different gang.
¶8 Video surveillance of the area showed that three people were milling around in the area.
One of them, who is wearing clothes resembling what defendant was wearing that day, is seen
running down the alley, pointing a gun behind him and firing.
¶9 After the shooting, defendant and Anthony fled the scene. Both men were apprehended a
short distance away from Arroyo’s home. The gun used in the shooting was found in the area
where defendant was apprehended. Shell casings fired from that gun were discovered in the alley
anything in the record that clarifies what the terms of this agreement were.
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2021 IL App (2d) 190205-Unext to Arroyo’s property. No shell casings or projectiles were found in Arroyo’s yard. There
was possible gunshot damage in the yard, but no effort was made to determine if its source was
the gun found near defendant. Moreover, no gunshot residue was found on defendant or Anthony,
and no latent fingerprints were found on any parts of the gun that was discovered near defendant.
¶ 10 After defendant was arrested, two policemen escorted defendant to the squad car that took
him to the police station. One of the officer’s body cameras recorded the exchange between the
officers and defendant. In this recording, a dog is incessantly barking, and people are standing
outside of their homes. An officer conducts a pat-down search, and defendant asks the officers
numerous times about getting a cigarette, inquires about the location of his wallet and cellphone,
and asks one of the officers if he can have his sunglasses. Soon thereafter, while one of the officers
is struggling to secure defendant in a seatbelt, feeling behind defendant for the seatbelt-locking
mechanism, defendant asks, “So now what? We make a deal or what?” The officer trying to
secure defendant’s seatbelt responds, “Yeah, we’ll all talk about everything.” After a brief pause,
defendant asks, “What do you guys want? Cocaine? What do you got?” The same officer
responds, “There’s too many people here right now, okay?” Defendant replies, “Alright.”
¶ 11 In his closing argument, defendant argued that he was not the shooter, and even if he did
fire the gun, he did so in self-defense. In response to this self-defense theory, the State argued in
rebuttal:
“ ‘Let’s make a deal.’ ‘You want some cocaine?’ Okay. If you’re to take the
defendant at—for his defense of self-defense, you get picked up and you get put in a squad
car, is the first thing you say to the officers that are taking him in there, ‘Let’s make deal,’
or do you bring up the fact, ‘Hey, I was shot at, why am I sitting in a squad car?’
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2021 IL App (2d) 190205-UHis first reaction is, ‘I’m in trouble, I better make a deal here. Want me to go make
some cocaine deals for you?’ That is the reaction of somebody who is conscious of their
[sic] guilt. And he knew he was in trouble.”
¶ 12 The jury found defendant guilty of aggravated discharge of a firearm (720 ILCS 5/24-
1.2(a)(2) (West 2016)) and unlawful use of a weapon by a felon (id. § 24-1.1(a)). He was
sentenced to concurrent terms of 14- and 20-years’ imprisonment. At no point during the
proceedings in the trial court did defendant argue that the statements he made to the police before
he was transported to the police station were inadmissible.
¶ 13 This timely appeal followed.
¶ 14 II. ANALYSIS
¶ 15 At issue in this appeal is whether the statements defendant made to the police were barred
by Rule 402(f) because they were made in anticipation of plea negotiations. Before considering
this issue, we sua sponte raise the doctrine of invited error. Under that doctrine, a defendant may
not acquiesce to the trial court’s proceeding in a given manner and then, on appeal, contend that
that very course of action was in error. People v. Carter, 208 Ill. 2d 309, 319 (2003). “To allow
[a] defendant to object, on appeal, to the very [procedure] he requested at trial, would offend all
notions of fair play.” (Emphasis in original.) People v. Villarreal, 198 Ill. 2d 209, 227 (2001).
¶ 16 We are disinclined to find that defendant invited the error he raises on appeal. The State
does not suggest that defendant invited the error, and we do not know precisely what “agreement”
defense counsel was referencing at the hearing on defendant’s motion in limine. Moreover,
invoking invited error would not provide the State any real benefit, as defendant’s underlying
argument lacks merit. Infra ¶¶ 25-27. We caution the parties to raise such equitable principles in
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2021 IL App (2d) 190205-Uthe future where they are believed to apply, but here we hold that the invited-error doctrine does
not bar our consideration of the issue.
¶ 17 Turning to the issue defendant raises, we observe that defendant did not object during the
trial proceedings or in a written posttrial motion that the statements he made to the police were
barred under Rule 402(f). Defendant raises his challenge for the first time on appeal. “[B]oth a
trial objection and a written post-trial motion raising the issue are necessary to preserve an issue
for review.” People v. Enoch, 122 Ill. 2d 176, 186 (1988). When a defendant neglects one or both
steps, the issue is forfeited. Id.¶ 18 Defendant recognizes that he forfeited any claim that his statements should not have been
admitted. He asks this court to consider the issue under the plain-error rule, which bypasses normal
forfeiture principles and allows a reviewing court to consider unpreserved claims of error in limited
circumstances. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Specifically, the plain-error
doctrine permits a reviewing court to consider an unpreserved error when “(1) a clear or obvious
error occurred and the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or
obvious error occurred and that error is so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Sargent, 239 Ill. 2d 166, 189 (2010).
¶ 19 Defendant argues that review of the issue he raises on appeal is appropriate under the first
prong of the plain-error rule, i.e., that “a clear or obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error.” Id. We must first determine whether any error arose at
all. Id.-6-
2021 IL App (2d) 190205-U¶ 20 Resolving whether the admission of the statements was erroneous begins with examining
Rule 402(f). That rule provides that “[i]f a plea discussion does not result in a plea of guilty, ***
the plea discussion *** shall [not] be admissible against the defendant in any criminal proceeding.”
Ill. S. Ct. R. 402(f) (July 1, 2012). “The purpose of Rule 402(f) is to encourage the negotiated
disposition of criminal cases through elimination of the risk that the accused’s statements or
concessions made during the course of plea discussions could be used against him.” People v.
Neese, 2015 IL App (2d) 140368, ¶ 11.
¶ 21 That said, “not all statements made by a defendant in the hope of obtaining a concession
constitute plea discussions.” Id. ¶ 12. “Indeed, there is a difference between a statement made
during the course of a plea discussion and an otherwise independent admission, the latter of which
is not excluded by Rule 402(f).” Id. Deciding whether a defendant’s statements fall under Rule
402(f) turns on the specific facts of each case. Id. Courts should “consider the nature of the
statement, to whom the defendant made the statement, and what was said by the parties to the
conversation.” Id.
¶ 22 Police officers are one group of people defendants may make statements to in anticipation
of plea negotiations. “Courts should resist an approach that characterizes every conversation
between a defendant and the police as a plea negotiation.” ¶ 14. “[A]ny person who voluntarily
speaks to the police probably hopes to benefit therefrom.” Id. “Those facing criminal prosecution
often seek leniency, and thus not all attendant statements made in the hope of obtaining
concessions are plea-related statements under Rule 402(f).” Id. As a result, “Rule 402(f) was not
intended to exclude as evidence mere offers to cooperate with the police, at least where such offers
are not accompanied by the rudiments of the plea-negotiation process.” Id. ¶ 13. “One such
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2021 IL App (2d) 190205-Urudiment, for example, would be the defendant’s willingness to enter a guilty plea in return for
concessions by the State.” Id.¶ 23 Although determining whether a defendant’s statements fall under Rule 402(f) does not
involve the application of a bright-line rule, our “supreme court has recognized a two-part test for
deciding whether particular statements are plea-related.” Id. ¶ 15. First, “[t]he court must consider
*** whether the defendant had a subjective expectation to negotiate a plea.” Id. ¶ 15. “[S]econd,
[the court must consider] whether any such expectation was objectively reasonable under the
totality of the facts.” Id. “Where the defendant’s subjective expectations are not explicit, the
objective circumstances surrounding the statements take precedence in evaluating whether the
statements are plea-related.” Id. Further, “[a]lthough there is no required demarcation indicating
the beginning of plea discussions, it must be clear that the defendant actually intended to plead
guilty in exchange for a concession by the State, and such intent must be objectively reasonable.”
Id.¶ 24 In reviewing whether a defendant’s statements fell under Rule 402(f), we apply a bifurcated
standard. We greatly defer to the court’s factual findings and will not reverse those findings unless
they are against the manifest weight of the evidence. Id. ¶ 10. However, we review de novo the
ultimate question of whether defendant’s statements were made in anticipation of plea
negotiations. See id. ¶ 10 (reviewing de novo the admissibility of statements under Rule 402(f)).
¶ 25 Here, under the two-part test delineated above, defendant’s statements to the officers were
not related to a plea. First, no evidence indicated that defendant subjectively believed that he was
involved in any type of plea discussion. In speaking with the officers, defendant never mentioned
a plea or expressed a desire to plead guilty. He did not explain to the court why he made the
statements that he did. The only reasonable conclusion that can be drawn from defendant’s first
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2021 IL App (2d) 190205-Ucomment—“So now what?”—is that he wanted to know what was going to happen next. The mere
fact that defendant mentioned “mak[ing] a deal” does not transform his statements into a
discussion about pleading guilty. See People v. Tennin, 123 Ill. App. 3d 894, 897 (1984) (the
defendant’s statement, “ ‘I want to make a deal,’ ” did not “indicate any explicit offer to plead
guilty,” and nothing indicated what the defendant’s subjective intent was in making the statement).
Similarly, defendant’s statements about what the officers wanted, whether they were looking for
cocaine, and what they had is not evidence that defendant wished to enter a plea of guilty to any
charges. When defendant asked those questions, the officers were struggling to secure defendant
with a seatbelt, searching behind him for the seatbelt-locking mechanism. Given the
circumstances, defendant may have been inquiring about the object of what defendant perceived
was a further search, or he could have been asking about what the officers had already found. Even
if defendant asked these questions because he wanted to cooperate with the police by serving as
an informant in exchange for leniency, that is not evidence that defendant was seeking to initiate
plea discussions. See People v. Ward, 192 Ill. App. 3d 544, 553-54 (1989) (“[A]lthough [the]
defendant indicated that he had information about narcotics dealers, the record is unclear as to the
purpose he was offering the information. [The d]efendant never stated or otherwise indicated that
he was willing to plead guilty to the charge against him.”).
¶ 26 As to the second part of the test, even if defendant had a subjective expectation of
negotiating a plea, which we do not believe that he did, that expectation was not objectively
reasonable given the totality of the facts. Specifically, nothing about defendant’s conversation
with the police would indicate to a reasonable person in defendant’s position that the police had
the authority to (1) engage in plea discussions, (2) offer a deal to plead guilty, or (3) enter into a
plea agreement. The police never expressed that they had any such authority, mentioned a plea
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2021 IL App (2d) 190205-Uduring their conversation with defendant, or implied that they could negotiate a plea. The officers
did tell defendant that they would “all talk about everything,” in response to defendant’s question
about whether making a “deal” or something else would happen next. However, that does not
suggest that the police had the authority to negotiate, offer, and accept a plea. Rather, this
exchange between defendant and the officers, right after defendant was arrested, would suggest to
a reasonable person in defendant’s position that any discussion about the next steps in the
process—even if they included some type of plea discussion—would happen at a later point. Any
expectation by defendant of negotiating a plea right then would not have been objectively
reasonable.
¶ 27 Accordingly, we conclude that the second part of the test, like the first part, was not met
here. As a result, admission of the statements was not improper under Rule 402(f). Because
admission of the statements was not error, defendant cannot establish plain error, and the forfeiture
stands. People v. Hart, 214 Ill. 2d 490, 513 (2005).
¶ 28 Our determination that the statements were not barred by Rule 402(f) is not altered by the
State’s remark in rebuttal that defendant wished to make a deal and that this showed defendant’s
consciousness of guilt. The State never argued to the jury that defendant offered to plead guilty
or wished to enter into plea discussions. Rather, the State argued that defendant’s offer to
cooperate with the police showed his consciousness of guilt. As our supreme court has observed,
“a defendant might choose to offer cooperation to a police officer for a variety of reasons.” Id. at
512. But, “without a reasonably specific reference to a defendant’s willingness to either negotiate
or enter a guilty plea, neither evidence of a defendant’s willingness to cooperate, nor prosecutorial
comments thereon, [including an inference that defendant’s willingness to cooperate with the
police showed a consciousness of guilt,] violate Rule 402(f).” Id.- 10 -
2021 IL App (2d) 190205-U¶ 29 Moreover, we find inapposite defendant’s claim that the State “understood this clearly”
that defendant wished to negotiate a plea when it told the court during pretrial proceedings that
“the State would draw a conclusion [that defendant was] making a deal in reciprocation for getting
him an easier sentence on whatever he’s dealing with.” Aside from the fact that that argument was
never made before the jury and the State’s assertion is somewhat equivocal, the State’s subjective
belief about what defendant’s statement meant is simply immaterial. See People v. Victory, 94 Ill.
App. 3d 719, 721, 725 (1981) (the defendant’s statements to police that (1) “ ‘he realized [that he
was facing] a Class X felony,’ ” (2) “ ‘he could get a maximum of 30 years’ ” for a Class X felony,
(3) he could not “ ‘afford to take’ ” a Class X charge, (4) “ ‘he would accept 10 years’ ” and
(5) “ ‘would the State’s Attorney be willing to plea bargain’ ” were admissions of guilt and not
requests to plea bargain; therefore, their introduction at the defendant’s bench trial, where the trial
court relied on them, did not violate Rule 402(f)). If such statements are not improper under Rule
402(f), it makes no difference what the State subjectively believed regarding those statements.
¶ 30 Relying on People v. Friedman, 79 Ill. 2d 341 (1980), defendant argues that his statements
to the police should not have been admitted. There, the defendant was indicted in federal and state
court for offenses arising out of inducing unsophisticated investors to invest in various marketing
enterprises. Id. at 344, 346. Approximately one month after the defendant was indicted, the
defendant phoned an investigator with the Attorney General. Id. at 349-50. The defendant, who
had spoken to the investigator about his indictment three times before he called, left a message
indicating that he needed to talk to the investigator about a “ ‘very urgent’ matter.” Id. at 350.
When the investigator called the defendant back, the defendant asked the investigator about
“ ‘making a deal’ ” and asserted that, if he was convicted, he would rather serve his time in federal
prison, not state prison. Id. at 350. On appeal, the defendant argued that the statements to the
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2021 IL App (2d) 190205-Uinvestigator should not have been admitted, as they were made in anticipation of a plea agreement
and so fell under Rule 402(f). Id. Our supreme court agreed. Id. at 352. The court noted that
“[b]efore a discussion can be characterized as plea related, it must contain the rudiments of the
negotiation process, i.e., a willingness by [the] defendant to enter a plea of guilty in return for
concessions by the State.” Id. at 353. The court determined that the “defendant’s unsolicited
statement was an offer to enter negotiation, stating generally the terms upon which [the] defendant
would be willing to bargain.” Id. at 352.
¶ 31 The same cannot be said here. Although, like the defendant in Friedman, defendant here
referred to making a “deal,” nothing indicated that the deal here concerned pleading guilty to any
offense. Unlike the defendant in Friedman, where the defendant had spoken to the investigator
about his charges numerous times after he was indicted, defendant’s statements here were made to
the police who arrested him at the scene before defendant was officially charged with anything.
Moreover, unlike the defendant in Friedman, defendant here never expressed any terms of a plea
agreement he would consider. Rather, defendant’s questions about what the officers wanted were,
at best, an offer to serve as an informant for the police. Nothing in the entire encounter intimated
that defendant wished to broker a deal with the State whereby defendant would plead guilty in
exchange for certain concessions from the State, such as where he would serve his sentence if he
were convicted.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 34 Affirmed.
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