People v. Beler ( 2002 )

JUSTICE COOK,

dissenting:

The majority concludes there was no plea discussion in this case because the defendant did not satisfy the technical requirements necessary to establish that a particular statement is plea related. “The record before us contains no indication that defendant expected to negotiate a plea during the November 23, 1998, interview with Bonnett.” 327 Ill. App. 3d at 834.

Consider this hypothetical. During questioning by the police, defendant is asked if he is interested in making a deal which would result in a lighter sentence. The defendant fails to respond. Would the prosecutor be allowed to argue to the jury that defendant’s willingness to consider a deal demonstrated his guilt, that an innocent person would have rejected any suggestion of a deal for a lighter sentence? Would the lack of any “indication that defendant expected to negotiate a plea” allow the prosecutor to argue that defendant was interested in a negotiated plea?

I would not exclude, as plea related, a defendant’s explanation of the facts surrounding the commission of the offense simply because defendant expected to gain some benefit by telling the police what had happened. I would, however, exclude a defendant’s inquiry whether a deal is possible, particularly when that inquiry is not accompanied by any discussion of the facts of the case. See Jones, 315 Ill. App. 3d at 506-07, 734 N.E.2d at 213, rev’d on other grounds, jurisdiction retained & remanded with directions, 197 Ill. 2d 346, 757 N.E.2d 464.

What occurred in this case is particularly inappropriate. It was defendant’s theory that the jacket he was wearing at the time of the offense, in which the contraband was located, belonged to his brother. Defense counsel asked Officer Bonnett whether he had checked out defendant’s brothers, what happened to the jacket, and whether the papers in the jacket had been fingerprinted to determine to whom they belonged. Bonnett basically answered “I don’t know” to all those questions. Accordingly, defense counsel asked Bonnett whether he and Baird were the detectives investigating this offense. Bonnett did not answer that question but volunteered “our main objective was that he was going to cooperate in other” investigations, help with his supplier, or “make a controlled delivery.” Defense counsel, diverted from .his inquiry, told Bonnett that “none of that happened in this case, right,” and Bonnett agreed. When Bonnett continued to volunteer statements about whether defendant would help the police, defense counsel asked Bonnett just to answer his question yes or no. On redirect, the prosecutor immediately asked about Bonnett wanting to see whether defendant would cooperate. The court sustained an objection, but the prosecutor kept coming back to the subject, falsely stating that defense counsel “asked you the question that the [djefendant didn’t cooperate in this case.” During closing argument, the prosecutor argued that defendant’s willingness and attempt to cooperate with the police demonstrated defendant’s guilt.

The majority cites Friedman for its view that in the absence of a formal plea negotiation Rule 402(f) does not apply. Friedman, however, reversed a conviction where defendant had inquired about making a deal and stated, “If I’m convicted, I would rather go to a Federal prison as opposed to a State prison.” Friedman, 79 Ill. 2d at 350, 403 N.E.2d at 234. “We cannot agree with the State that an essential element of a plea discussion is the requirement that the statement sought to be excluded be made ‘as an integral part of a bona fide negotiation’ with the appropriate parties in attendance.” Friedman, 79 Ill. 2d at 352, 403 N.E.2d at 235. Friedman does not espouse the harsh rule set out by the majority. Instead Friedman recognizes the significance of the negotiation process to the' administration of justice and the devastating effect of the introduction of plea-related statements in the trial of the accused. Friedman, 79 Ill. 2d at 351, 403 N.E.2d at 235. “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.” Friedman, 79 Ill. 2d at 351, 403 N.E.2d at 235.

If it is improper for a prosecutor to refer to clear plea negotiations which do not result in a plea, it should be even more improper for a prosecutor to suggest that unclear plea negotiations were an acknowledgment of guilt on the part of the defendant.