People v. Jones , 219 Ill. 2d 1 ( 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 Dicker-man, Jr. Defendant was charged and later found guilty of first degree murder (720 ILCS 5/9—1 (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 App. 3d 1125 (1998) (unpublished order under Supreme Court Rule 23).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 crime—namely, 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 statement contained the “rudiments 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 114—5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114—5(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 114—5(d) of the Code (725 ILCS 5/114—5(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. Dicker-man 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 TriState, 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 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. Dicker-man 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:

“I, 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 “missing,” he searched his house. The crime scene investigator discovered blood spatters on the bathroom wall, windowsill, and rug. He returned on September 2, 1992, and discovered additional blood spatters 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. Dicker-man’s DNA. Stains found on the wall and windowsill 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 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 riverboat 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 “pawned” 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 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. Dicker-man 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 “eighty-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, “I 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 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 “behoove” him to speak to them.

Defendant informed the detectives that he wished to clarify his 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 detectives—and 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 riverboat 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 “night 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 “no 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 crime—venue; (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 5/114—5(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 negalively commented upon defendant’s assertions of prosecutorial misconduct during sentencing, telling defendant he was “outraged” at defendant’s accusations against the State’s Attorney and the police. We detail these allegations in our opinion remanding this matter to 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 “ ‘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 “defendant 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 “intemperate,” 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 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 “a 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 re-litigation 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:

“We 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 “special 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 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 “statements 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 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 “special 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 (“It 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 “unnecessary” or because resolution of the one issue precludéd 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. However, the “trial 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:

“If 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).

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 “substantial similarity” between the rules.² Friedman, 79 Ill. 2d at 351, citing United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir. 1978) (estabhshing the “general 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 “If 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 “Office 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 “[had] no 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 “actual 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 “defendant’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 “reasonableness 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 “could do for him” if he cooperated was inadmissible under Rule 402(f). Hart, 214 Ill. 2d at 511. We held that “this 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 issue—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 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 negotiation 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 “reasonableness 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 (“the 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 approach—one in which any offer by a defendant to plea would immediately render all subsequent statements inadmissible plea negotiations—would 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 “rigid 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 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 “offers 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:

“Every 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 “despite 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 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 himself—defendant 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 indicates 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 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, “ ‘[bjefore 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, “The 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.

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 5/9—3(a) (West 2000). Recklessness is defined in section 4—6 of the Criminal Code:

“A 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 5/4—6 (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 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 offense—venue—and his conviction must be vacated.

At the time of Dr. Dickerman’s death, section 1—6 of the Criminal Code set forth the general venue requirements for criminal actions. 720 ILCS 5/1—6 (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 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 5/1—5(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, “[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 blood spatters on the bathroom wall, windowsill, and rug within Dr. Dicker-man’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 “a strong probability of death,” to state that defendant’s conduct “created 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 5/111—5 (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 5/9—1 (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. 2d 403, 124 S. Ct. 2531 (2004), as additional authority for the proposition that “an 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 CARMAN and KARMEIER took no part in the consideration or decision of this case.

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.

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).

3 Amended section 1—6 provides, “The State is not required to prove during trial that the alleged offense occurred in any particular county in this State.” 720 ILCS 5/1—6(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 1—6 does not apply retroactively because the amended version of section 1-—6 effected a change in substantive law. Digirolamo, 179 Ill. 2d at 50.