*1 (No. 9028 2
THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, JONES, v. ROBERT D. Appellant.
Opinion January Rehearing denied filed 2006 . March 2006. *5 H. Defender, and Allen Schiedel, Deputy M. Charles State Defender, Office of the Andrews, Assistant Defender, appellant. for Springfield, of Appellate General, Attorneys Madigan, Lisa Ryan E. and James Springfield all of Attorney, State’s Kelley, and Patrick Feinerman, Solicitors (Joel Gary and D. Bertocchi and Browers, M. Griffin L. Colleen General, and William General, Chicago, of Woloshin, Attorneys Assistant Linda counsel), People. for the of of judgment delivered the FITZGERALD
JUSTICE court, opinion. with judgment in the Thomas concurred Justice Chief opinion. concurred, joined specially McMorrow
Justice Freeman. Justice and dissented part Kilbride concurred
Justice opinion. with part, in the part took no Karmeier
Justices Garman decision.
OPINION defendant, trial from the second arises appeal This Henry Dicker- Jones, murder of Dr. for the D. Robert guilty charged and later found was man, Jr. Defendant 1996)) (West (720 degree fol murder ILCS first 5/9—1 Sanga jury lowing in the circuit court trial in 1996 appellate County. appealed, court and the Defendant mon App. Ill. a new trial. Jones, v. for People remanded (1998) Supreme (unpublished Court order under 3d 1125 23). jury following trial, remand, second Rule On degree again guilty murder. of first found appealed, appellate affirmed, court and the Defendant App. justice dissenting. 500. 315 Ill. 3d with one (1) arguing appealed court, to this Defendant improperly *6 on a for substitu- court ruled motion the trial (2) judge; the court failed to bar statements tion of trial (3) negotiations; during the trial the of made course involuntary by refusing jury on court erred to instruct (4) prove manslaughter; a material the State failed (5) crime—namely,venue; trial court element of the charges improperly allowed the State to amend the (6) against him; U.S. 530 v. New Apprendi Jersey, (2000),required 466, 435, L. Ed. 2d 120 S. 147 Ct. 2348 that his conviction be overturned. September reversing opinion 2001, an
On
we filed
appellate
respect
trial court and
court
to the
with
hearing
issue;
trial
first
we remanded to the
court for a
judge
on
motion
for cause.
defendant’s
for substitution of
(2001).
reach
BACKGROUND was degree Defendant first convicted of the first murder of Dr. Dickerman after trial jury August 85 years’ imprisonment. was sentenced to On argued defendant that court appeal, erroneously trial admitted into evidence a written statement he made to Particularly, 1994. on 15, 1994, police detectives visited with defendant while Defendant, he was incarcerated. as directed the detec tives, hand drafted a providing statement two-page terms of the deal he would be order willing accept in The plead guilty. detectives informed defendant Attorney. the statement was for the State’s state This into appellate ment read evidence trial. The court contained agreed the statement the “rudiments and, therefore, negotiation process” was an inadmis 402(f) (177 plea-related sible statement under Ill. Rule 402(f)). R. appellate 2d court reversed defendant’s Jones, conviction People and remanded for new trial. v. (1998) 294 Ill. order under App. (unpublished 3d 23). Rule Supreme Court remand, trial,
On prior to the start of the new filed a motion for automatic substitution *7 114—5(a) pursuant to of the of judge section Code (725 (West 5/114—5(a) Criminal Procedure ILCS 1998)). untimely. The trial denied the motion as judge for Subsequently, defendant filed motion substitution 114—5(d) for to section of the judge pursuant cause (725 5/114—5(d) (West 1998)). Defendant Code ILCS the trial and argued Judge Zappa, original judge him, remand, prejudiced against and judge trial on pretrial rulings this in prejudice was evident during during trial and his comments sentenc- first ing. Judge Zappa motion, heard the and denied the mo- untimely. tion as suppress
Defendant then filed a motion to statements July he made to the 16, judge 1994. The trial denied the motion on the basis that against the statements were admitted defendant in the challenge first trial and defendant failed to the admis- sibility appeal. of those statements on He held that challenge precluded defendant’s failure to the statements challenge proceeded a later on remand. The matter to following. time, trial a second and the record reveals the approached In June Dickerman, defendant Dr. single 85-year-old surgeon, man and retired with a proposal paint repairs. his house and do various minor agreed, paid Dr. Dickerman defendant, hired a sum up paid completion front with a remainder to be at the Ultimately, scope the work. of defendant’s duties expanded, handyman and he worked as a for Dr. Dicker- doing repair man various work as it was needed. approximately At time, same in for a period additionally weeks, of six worked for began employee Tri-State Foods. When he as an for Tri- manager State, defendant informed the that he would do manager money additional work if the advanced him buy necessary supplies complete job. manager agreed money. and advanced defendant Defen- repay money by July, dant failed to the end of as agreed, attorney. August and he was contacted an On part money 4, defendant delivered owed, $850, manager promise repay cash to the with a shortly. remainder August 11,
On 1992, Dr. Dickerman arrived at Department of Rehabilitation Services, where he worked reviewing disability as a consultant federal claims. Individuals in the office testified that Dr. Dickerman appeared good seemed himself and health. Dr. Dicker- *8 lunch, each of those friends for man then met several in good spirits lunch testified that he was who attended The lunch ended at be in health. good appeared 1:15 p.m. Rutschke, States Postal Service a United
Charles delivered the mail worker, August that on 11 he testified p.m. approximately house at to Dr. Dickerman’s mail the house had a front-door recalled that Rutschke greeted he was mail on delivering slot. While defendant. walkway by Dr. Dickerman’s halfway up anxious. appeared stated that defendant Rutschke Dr. was mail for asked whether there Defendant give he refused to Rutschke testified that Dickerman. mail into the and instead placed the mail slot. front-door mail 12, 1992, appear Dr. Dickerman failed
On August evening bridge game. Concerned weekly Wednesday their on him. Upon to his home to check friends went normal, everything appeared home initial search of the Century was not Dickerman’s 1988 Buick that Dr. except description released garage. police in the parked car. Dickerman and his Dr. that several police discovered
Soon afterwards checkbook, from his missing checks were Dr. Dickerman’s three checks on deposited defendant had and that Dickerman’s ac- $5,025 Dr. totaling against and 8 defendant at the to contact attempted The police count. the back of number listed on telephone and the address on the messages left checks. Detectives the cashed and later the listed number machine at answering to defendant’s registered the number learned his mother- informed Defendant was mother-in-law. him, and he im- for looking were in-law that eventually Defendant’s wife left the state. mediately addressed note from defendant handwritten delivered a County. Sangamon investigations chief deputy to the The note stated: statement to Jones, like to make this
“I, would Robert time Dickerman. The last you to locate Mr. assist in effort afternoon, house at He left his Tuesday him I seen was on dinner with his going he was to a p.m. 4:00 and said about *9 p.m. around 4:30 his house until friends. I did not leave job. painting an finishing because I was interior were written I received from Mr. Dickerman Any checks of these I no idea about the numbers from him to me. have you I checks, that. I can tell pay I did not attention to nothing disappearance. had to do with his but I have tried past, I some trouble in the have had me anyone who knows my right life track and put on fly. harm a knows I could never person as family, my I trying you because miss I am not avoid me, I system before. Believe up but I’ve been beat you any way help bring I can an end of this will assist happening again. that is to me all over nightmare all of our I Mr. Dickerman comes home soon for hope sakes. you,
Thank Robbie Jones.” with the Illinois State investigator A crime scene 1, 1992, Dr. Dick- Police testified that on while September his house. The “missing,” erman was still he searched investigator spatters crime scene discovered blood wall, windowsill, He returned on rug. bathroom and 2, 1992, and additional blood September spat- discovered he had missed. could not previously Investigators ters only when the blood was and could deposited determine Dr. Dicker- rug the blood on the matched testify the wall and windowsill man’s DNA. Stains found on comparison. were insufficient for years testified that for seven she cleaned Tina Clark She testified that every Thursday. Dr. Dickerman’s house August entire house she last cleaned Dr. Dickerman’s She stated that she washed his bathroom tub 1992. sink, bathtub, and scrubbed washed the walls around the 6, 1992, On upstairs the floors bathroom. rug. she did not notice blood on the walls or September 5, 1992, On hikers found Dr. Dickerman’s partially decomposedbody at the bottom of a cliff in Mis- souri. His car was later located in Lambert-St. Louis Airport’s long-term parking International lot. A forensic pathologist determined that the cause of death was homicide. Springfield,
Defendant returned to Illinois, on October and was arrested. On October Frank Wright, agent Investiga an with the Federal Bureau of (FBI), Springfield police Young tion detective Tim attorney present, defendant, interviewed with his about disappearance.1 his involvement in Dr. Dickerman’s explained Defendant that he last saw Dr. Dickerman on p.m., they Chicago 11, at 2 when watched the game Cubs baseball on television. He said the doctor was jacket dressed in a dinner and slacks and mentioned that plans he had dinner with friends. After Dr. Dickerman painting left, dining said, he finished room *10 p.m., up spent at 4:30 locked the house and left. He the evening daughters, remainder of wife, the with his three spent and mother-in-law. He further said that he most of day gambling the Peoria, Illinois, next at a bar and gambling, that, riverboat casino. He said after he Springfield approximately p.m., returned to 3:30 changed into his work clothes at a friend’s home to gambling conceal the fact of his wife, from his and evening. returned home for the Defendant said he fled to receiving answering Alabama on 14 after the messages police concerning machine from the cashed checks. Defendant stated that he feared would parole learn about his violation for an earlier Indiana of Agent Wright Young additionally fense. and Detective Springfield 1The initially participated division of the FBI investigation request Springfield police at the depart- investigators ment initially because believed that Dr. Dickerman’s disappearance kidnapping. was the result of foreign and questioned paintings gold defendant about coins from the doctor’s home. Defendant stated missing him and he gave paintings, that Dr. Dickerman them in an He subsequently “pawned” antique shop. him coins for his gave also said that Dr. Dickerman children, but did not recall he did the coins. what with Ultimately, charged pleaded guilty defendant was forgery imprisoned. and was spoke with agent
Defendant a second time for FBI days and Detective several later and Young repeated his He story. same reiterated that he last saw Dr. Dicker- man when the doctor left the for house meet friends dinner. Center,
On July at Graham Correctional spoke again detectives with defendant him confront about the accuracy of his earlier statement. Defendant informed the detectives that “eighty-percent his earlier statement was true.” year later,
One on July 27, 1994, pursuant to defen- request, dant’s he again met with Springfield police time, detectives. At the defendant was for incarcerated forgery Big Muddy conviction at Correctional Center. Defendant requested interview, an audiotaped and pursu- ant to his request detectives Springfield Young Doug Williamson tape-recorded the Detectives, interview. also pursuant to defendant’s request, brought a note from the State’s Attorney describing the for punishments involun- tary manslaughter and first degree murder. When taping began, detectives advised defendant of his Miranda rights and noted the meeting occurred at defendant’s request August 12, discuss his actions on day after Dr. Dickerman disappeared. When asked whether his *11 October 1992 statement to the regarding his August accurate, conduct was defendant instructed Thereafter, detectives to turn off the tape recorders. for period a tape 55-minute while the recorders remained
off, he alibi defendant admitted that had fabricated his his repeatedly in 1992 statement. Defendant October him had they asked the detectives to tell what evidence in the case. Defendant asked whether detectives murdered, Dr. thought that Dickerman was defendant being never autopsy report, despite asked about house, in told the detectives about blood found in Dr. Dickerman’s defendant asked about blood found they bathroom. detectives told defendant When information, give him he became going were not out, you “I know don’t frustrated, blurting eventually have murder weapon.” resumed, a new recording provided
When defendant minutes. lasting statement Defendant approximately that Dr. Dickerman discovered informed the detectives in the week of 1992. August his earlier forgeries press not to agreed Defendant said Dr. Dickerman work perform defendant additional charges if would ar- house to off his debt. pay around the When 11, 1992, he house rived at Dr. Dickerman’s on room, his lying living found Dickerman on floor of Dr. He said unconscious, with a of blood on head. spot Dr. Dickerman failed. Defen- attempts that his revive he that he afraid would be dant told detectives he had in Dr. Dickerman’s death because implicated next checks, he house returned the so fled the forged Dr. gathered body. day, next day dispose checkbook, medicine, clothes, glasses, and Dickerman’s placed like Dickerman left for trip, to make it look Dr. to a car, of his drove the car Dr. the trunk Dickerman Louis, an body near and threw the over deserted area St. killing He denied Dr. Dickerman. embankment. again met with and Williamson Young Detectives County jail Franklin defendant on Illinois, provide defendant with Benton, in order occurring taped of their discussion copy transcribed *12 to the simultaneously listened 27, 1994. Defendant July Afterwards defendant transcript. read the tape and was transcript that transcript, indicating signed 27, 1994. of his discussion on copy a true and correct and pages length is several copy The transcribed bargain any inquiry regarding contains no reference to testified that on for his Detectives cooperation. suggested defendant signing transcript, after to a lesser offense willing plead guilty
he would be informed defendant reduce his sentence. The detectives with defen- they negotiate that were not authorized would take his mes- dant, they they but indicated Attorney. to the State’s sage 16, 1994, still
On while Center, Detec- Big Muddy incarcerated at Correctional served defendant with an ar- tives Williamson Cox for first murder. Defendant was read degree rest warrant rights his Miranda and indicated that he understood rights. provided copy those Detectives also defendant a 1961, containing the Illinois Criminal Code of the statu- tory definition of first The detectives degree murder. informed defendant if he believed actions his constituted less than degree first murder it would him speak “behoove” to them.
Defendant informed the detectives that he wished to clarify his earlier statement. He admitted that his prior statements to the were false and made a new state- ment. Defendant told the detectives that he was painting the interior of Dr. Dickerman’s house on August when the mailman arrived. Dr. Dickerman retrieved and opened forged his mail and discovered that defendant had began checks. Dr. Dickerman became excited and scream- defendant, chest, ing suddenly grabbed when he away, forward, turned fell struck his on the head fell fireplace, then to the floor and struck his head cloth-covered, second time on a Defendant doorstop. brick placed chair, Dr. Dickerman’s in a body reclining unlocked door, the front and fled the house. Defendant stated that he had someone hoped doctor, would discover the but he early returned the next morning and discovered the doc- tor untouched. Defendant decided to dispose body and, therefore, gathered some of Dr. Dickerman’s effects, personal checkbook, including his clothing, medicine. placed Defendant in the body trunk of Dr. *13 car, Dickerman’s the past drove car St. Louis where he road, found a chained-off and threw the body over a cliff. Defendant then drove the car to Lambert-St. Louis Airport, International his wiped fingerprints from the car, interior of the and left the car in long-term parking. that, overall, during Detectives testified their discus- sions with defendant he controlling and continually attempting to elicit information from them about 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 his defense and denied any involvement in Dr. Dickerman’s death or the disposal of body. 11, 1992, He testified that on August he finished painting the interior Dr. Dickerman’s house and payment received final for his He stated at 4 work. p.m., friends, Dr. Dickerman left house to meet his and defendant left thereafter shortly pick up his wife from work. He told the that he the remainder jury spent with his wife and children. He evening testified 12, 1992, that the next morning, August up woke and and spent morning afternoon on the Peoria riverboat casino. He then spent evening with his wife and children. Defendant continued that on August he started work on a condominium. He spent day painting eventually his wife and children picked up promised “night and took them to a motel for a out.”
17 Defendant stated that he only spoke to the detectives on July 27 because threatened they to arrest his wife and take their away children. Defendant said the detectives threatened him gave him the details for his state- ment, such as where the body was found. Defendant testi- fied that he had “no choice” but to admit to disposing of the body to avoid first degree murder charges.
A jury convicted defendant of degree murder, first and the trial court sentenced defendant years’ imprisonment. Defendant appealed and the appellate court affirmed his conviction. 315 Ill. 3d App. 500.
ANALYSIS
(1)
On appeal,
argues
the trial
court improperly
on
ruled
a motion for substitution of
(2)
judge;
the trial court erred when it failed to bar
defendant’s statements made
27 and
16;
(3) the trial court erred by refusing to instruct
jury
(4)
on involuntary manslaughter;
the State failed to
prove
(5)
a material element of the crime—venue;
trial court improperly allowed the State to amend the
(6)
charges against him; and
his sentence violated Ap-
prendi v. New
Jersey,
U.S.
L. Ed. 2d
*14
(2000).
I. Motion for Substitution of Judge On 15, November 2001, pursuant to this court’s order the trial court conducted a hearing on defendant’s mo- (725 tion 5/114—5(d) for (West substitution of judge ILCS 1998)). On remand, the trial court concluded that there was no evidence of prejudice and denied defendant’s mo- tion.
In his supplemental brief, defendant continues to al- lege that the trial judge was prejudiced against him. Defendant complains that prejudice this is evident from the following conduct: the trial judge failed to force the State’s compliance with discovery orders, and he nega-
18 of pros assertions upon commented lively during sentencing, telling ecutorial misconduct against at defendant’s accusations “outraged” he was these al detail Attorney police. State’s and the We matter to the remanding this opinion in our legations Jones, Ill. 2d at 353. See 197 hearing. trial court for a this in his brief to supplemental assertions Defendant’s before the trial court argued identical to those court are on remand. demonstrate that defendant must prevail,
In order to which indicate are facts and circumstances there rel. Baricevic v. ex prejudiced. People judge trial v. Wharton, People 423, (1990); also Ill. 2d 439 see 136 (1993). Prejudice Mercado, 1040, 244 3d 1045-46 App. Ill. “ will, ill or distrust ‘animosity, hostility, is defined as ” Patterson, 192 Ill. 2d v. People this defendant.’ towards Vance, v. 171, 2d People (2000), 76 Ill. quoting 131 Mercado, 244 Ill. 3d (1979); App. also see Vance, 181. A movant bears Ill. 2d at quoting just pos not establishing prejudice, actual burden of Patterson, 131; 2d at see 192 Ill. sibility prejudice. will Mercado, reviewing A court Ill. 3d at 1045. App. a finding absent court’s determination not disturb a trial Mer of the evidence. See weight manifest against cado, 244 Ill. 1047. 3d at App. that “defen- on remand noted
Here, the trial court during assert facts or instances has failed to dant the denial or prejudice evidence either trial which second Further, court determined the trial a fair trial.” prejudice did not evince discovery rulings Zappa’s Judge. held several rather, State; Judge Zappa against the State instances forced many and in hearings pretrial Last, discovery orders. outstanding comply with dur- comments Judge Zappa’s while held that trial court not amount they did “intemperate,” sentencing were ing anticipa- fixed of a the formation establishing to evidence *15 Likewise, we find that defendant offers tory judgment. Judge Zappa no facts or circumstances to find that animus him or his counsel or was less harbored toward trial. find that subsequent than evenhanded at We against the trial court’s order on remand is not manifest weight evidence. The July
II. 27 and 16 Statements Defendant maintains that his statements made in 1994, 27 and plea-related were inadmissible at trial. Defendant that he acknowledges did these statements in challenge admissibility not of his initial appeal, argues but the statements should have been barred on retrial and the trial court erred when it refused to consider his motion to suppress. We disagree. estoppel relitigation Collateral bars the an order unappealed special absent circumstances. The present case contains no special circumstances warrant- ing relitigation of the issue. Enis,
In People (1994), v. 163 Ill. 2d this court held that where “a defendant’s conviction has been error, reversed for trial and the cause is remanded for a trial, new the doctrine of collateral estoppel bars the re- litigation pretrial ruling, such as a motion to sup unless press, the defendant offers additional evidence or there are other special Enis, circumstances.” In defendant was convicted of murder and sentenced to death for that conviction. The defendant challenged of the State’s scope him, cross-examination and we reversed and remanded for a new trial based on that er ror. In his first appeal, the defendant did challenge not the trial court’s denial of his motions to his arrest quash and suppress trial, evidence. At his second the defendant renewed his motions to quash suppress. The trial trial, court refused to reconsider from rulings its the first and the defendant was convicted and sentenced death. On direct appeal, challenged the trial court’s refusal to reconsider its This stated: rulings. court
“We find no reversible error in the trial court’s refusal rulings to reconsider its earlier that denied defendant’s evidence, quash suppress motions to his arrest and or the request court’s denial of defendant’s to of exclude evidence charge against the sexual assault filed The defendant. defendant arguments could have raised these in his first justified appeal, and his failure to do so the trial court’s rulings, refusal to reconsider its under principles of col *** estoppel. suggest lateral Defendant does not that he did not receive a full and fair hearing pretrial his mo points tions. Defendant to no new evidence or legal precedent pertinent that would have been the trial Also, rulings court’s on these matters. we can find no special relitiga circumstances that would have warranted Enis, pretrial arguments.” tion of defendant’s 163 Ill. 2d at 386-87.
Our case not explicitly “special law does define law, however, At special circumstances.” common circum suspended estoppel stances the doctrine of collateral as a matter of where would result in manifest equity estoppel injustice. See St. Paul Fire & Marine Insurance Co. v. (1993). Downs, 247 Ill. 382, 3d Illinois courts App. special relitigation have found circumstances warrant an earlier ruling op when the defendant was denied an People In portunity litigate appeal. the issue his first Mordican, v. (1976), 64 Ill. 2d 261-62 we held that under special-circumstances exception arrest, unsuccessfully challenged legality who his but later the same acquitted charge, may of the raise of the arrest with argument legality respect him charges against also filed because his separate review of his motion in the acquittal prevented appellate People Savory, v. App. first In 105 Ill. 3d proceeding. (1982), 1027-28 court reached a appellate two charged similar result. The defendant was with to officers and a murders after he made a statement trial, At first the trial following day. confession the his his suppress court denied the defendant’s motion to appeal, statement and confession. On the defendant later challenged the of his confession but did not admission challenge appellate the admission of his The statement. holding conviction, court reversed the involuntary. retrial, On the trial confession was court ruling regarding declined to reconsider its admissibil ity appellate reversed, of his statement. court hold ing special relitigation circumstances warranted ruling because the “statements which defendant sought suppress in the second trial not were relied upon prosecution necessarily, and, in the first trial suppression the issue of of evidence which could not have contributed to his first conviction would have been appeal.” Savory, considered moot on review in first *17 App. 105 Ill. 3d at 1027-28. Savory,
Unlike the defendants in both Mordican and prevented raising defendant here not was from in his appeal begin- initial the issue he raised on remand at the ning appeal. of his trial second and in this The il- record clearly lustrates that defendant was on notice that the statements could have to contributed his first conviction. Specifically, July August the State used the and 27 16 prosecute statements to in trial, defendant the first challenged admissibility prior their the to start of his appeal However, first trial. in his initial defendant did challenge admissibility July August not the of the 27 and acknowledges 16 statements and this in fact his current appeal. only appealed admissibility Rather, the August appeal. of his Thus, 15 statement in his initial closely the circumstances in this case more resemble special Enis, those in where we no found circumstances. Similarly, suggest defendant does not that he did not hearing receive full and fair on his in motions the initial and, further, trial does not offer new evidence or new legal precedent important that would have been to the ruling. trial court at the time of its initial 22 to “special court seems conclude that appellate application exist to avoid of the collateral
circumstances” estoppel doctrine in this case because defendant was litigate admissibility denied the of opportunity 27 in his first 315 July August appeal. 16 statements court, App. According Ill. at 504. the appellate 3d opportunity litigate defendant was denied the in his admissibility appeal of these statements first resolved based appeal solely upon because the was (“It not August App. 315 Ill. 3d at 504 statement. us to the other two necessary [the for address interviews July 27 and the when we decided statements] appeal]”). first [defendant’s in appellate ap-
This is incorrect. The court the first admissibility July did not fail to of the peal consider it was “unneces- 27 and statements because issue sary” precludéd or because resolution the one Rather, appellate court further review other issues. 27 or admissibility did not consider not August 16 statements because the defendant did Clearly, challenge admissibility appeal. their his first that a mere failure this court has never held ap- the first challenge admissibility ruling to overcome col- is a circumstance sufficient peal special estoppel. lateral not
Furthermore, the trial court was certainly of its obligated rulings, including to reexamine each 402(f) sense Rule issues. This defies common unappealed *18 The of whether statements precedent. and examination A as to state finding is fact one plea-related specific. are admissibility the ment not reflect necessarily upon does Friedman, Ill. 2d v. 79 People of other statements. See (1980). Therefore, holding 341, court’s appellate 352 course 15 were made August that the statements the trial court require did not plea negotiations statements admissibility of all other reconsider 23 trial court retains noted in Enis, remand. As we long authority rulings as as to reconsider inherent pending However, “trial court’s it. cause is before imply modify rulings court does not that the its power hearing. (Emphases original.) to hold” a is obligated Ill. 2d at 387. 163 Enis, argues that if this court should find that
Defendant unappealed estoppel relitigation is bars collateral denied effec sue, is warranted because he was reversal original appellate of counsel tive assistance original appellate Defendant maintains that his counsel. July failing challenge counsel was ineffective for appellate 27, 1994, and statements. argument it held court declined to consider the because indepen that the 27 and 16 statements were 402(f). under 315 dent admissions and not excluded Rule App. Ill. 3d at 508. (1984),
In People v.
Supreme Court Rule
encourages
negoti
disposition
ated
of criminal
cases because
the rule
eliminates
the risk that
the jury will hear statements or
by
admissions made
defendants during plea negotiations.
Friedman,
“If a
plea
discussion does not result
in a
of guilty,
if
plea
guilty
accepted
withdrawn,
or
a
is not
or is
or if
judgment
plea
guilty
on a
is reversed on direct or col
review,
lateral
plea
any
neither
discussion nor
result
ing agreement,
plea,
judgment
or
shall be admissible
against
proceeding.”
criminal
177 Ill.
402(f).
2d R.
We have
adopted
two-prong test to examine whether
a statement
is an
plea-related
inadmissible
statement.
Friedman,
In the defendant was convicted of theft deception for his involvement in a series of fraudulent investment schemes. The defendant was charged also 11(e)(6),
2Federal Rule of Criminal Procedure
once substan
402(f),
tially
language
formally
similar in
to Rule
has now been
application.
People Hart,
amended and is more limited in its
See
v.
(2005).
214 Ill. 2d
502-03
appeal,
with federal mail fraud for the same conduct. On
challenged
the defendant
the introduction of a statement
investigator
Attorney
he made to an
for the office of the
Particularly,
General.
the defendant’s statement “If I’m
go
prison
op
convicted, I would rather
to a Federal
as
*20
posed
prison”
against
to a State
was admitted
him. The
record revealed that the defendant made this statement
during
telephone
investigator,
conversation with the
investigator
telephone
after the
answered the
with the
greeting
Attorney
“Office of the
General.” The State
responded
investigator clearly
that because the
informed
authority
negotiate, by
the defendant that he had no
telling
“[had]
the defendant that he
no control over
bargain
that,” the defendant’s offer to
was not made as
part
plea negotiation.
of a
Friedman,
We
addressed Rule
in
Hart,
v.
(2005).
27
admissibility
plea.
fact,
In
of a bare offer
concern
alleged
bargain were not admitted
offers to
only
against
Rather,
his statements disavow-
him at trial.
ing
Dickerman’s murder were
his involvement
Dr.
against
Friedman,
Thus, unlike
here we
admitted
him.
admissibility
exculpatory
consider the
of defendant’s
express
statements in the face of the detectives’
warn-
ings
they
authority
negotiate.
had no
Under
totality
objective circumstances,
of these
we consider
expectations
whether defendant’s
were reasonable.
The factual distinctions between the instant matter
present
importance
and those
in Friedman are of
because
we have held that the
characterization of
statement as
plea-related
specific,
may
is fact
and courts
consider a
variety
making
of factors in
this determination. Fried
man,
Ill.
351-52;
Robertson,
2d at
see also
582 F.2d at
(“the
carefully
1366, 1368
trial court should
consider
totality
Thus,
of the circumstances.
each case
turn
must
***
simplistic
[W]e
per
ap
on its own facts.
eschew
se
proach
requiring
in favor of
a holistic examination of the
discussion”).
surrounding
per
ap
circumstances
A se
proach—one
in which
offer
a defendant to
immediately
subsequent
would
render all
statements
plea negotiations—would
inadmissible
confuse the
analysis
instant
with that used to resolve constitutional
challenges pursuant
Arizona,
to Miranda. See Miranda v.
(1966);
436,
694,
16 L.
U.S.
Ed. 2d
28
may
statement,
consider
the nature of the
to whom
statement,
defendant made the
and what
parties
Friedman,
conversation said. See generally
79 Ill. 2d
at 352. Importantly, not all offers to
are
bargain
inadmis
Hart,
plea-related
sible
statements.
In
we reaffirmed this
principle, stating
more,
“offers to cooperate, without
do not constitute plea negotiations or offers to enter into
Hart,
plea negotiations.”
Our appellate court in the instant matter aptly also noted this distinction:
“Every guilty voluntarily person speaks who to a detec probably hopes conversation, tive to benefit from either by convincing the detective that he did not commit the leniency crime or obtaining cooperation. for his We approach every should resist an that characterizes conver sation between a defendant and a detective as a plea negotiation. have an investigatory function that Attorney the courts and even the State’s do not have.” 315 App. Ill. 3d at 506. enforcement,
This function is critical to law investigatory and we must be careful recognize this distinction when 402(f) whether interpreting applies. Particularly, Rule 402(f) while Rule was enacted to encourage negotia tion it was not enacted process, discourage legitimate interrogation techniques. Those arrested often seek and not all leniency, attendant statements made in the hope of concessions are statements gaining plea-related 402(f). Hart, generally under Rule See 214 Ill. 2d at (examining appellate 506-11 numerous federal
29 Robertson, see F.2d at 1368 cases); (distinguish- also 582 confession, admission and or ing guilty of a mere plea still “despite that an admission be admissible noting may in the that the accused makes some of those request fact charge”).
Here, 27, 16, 1994, August on we take July as that he offered to allegations bargain. true of in Again, however, we can discern no detail this offer record, the to only rather references offers vague in bargain. Pursuant the second articulated prong Friedman, we consider whether defendant’s expectations were reasonable under totality objective the Again, circumstances. we consider nature the of statements, statements, to whom defendant made the here, and most importantly parties what to the actually conversations said. objective
The circumstances the instant matter that expectation reveal he any engaged was in plea negotiations 16, 1994, on August both was not reasonable. did give Defendant not information to strike a deal with detectives. Defendant did not confess. Defendant’s statements were prompted by not leniency desire seek for his actions. It is plainly obvi- ous that gave information exonerate spoke himself—defendant to the each detectives time to convince detectives he did not commit a The crime. content of defendant’s statements offer no indication that he divulged with information the intent to plead or guilty, even each culpability. reduce In statement defendant denied involvement the circumstances causing Dr. July 27, 1994, Dickerman’s death: on no knowledge claimed surrounding the circumstances Dr. and, Dickerman’s death alternatively, August 1994, he claimed that Dr. Dickerman’s death was the result heart failure. do not believe these exculpa- We tory discussions exhibit requisites of plea bargaining.
30 totality
The indicates of circumstances here that defen simply bargaining. Thus, dant was not hold that we any expectation totality not under reasonable objective Friedman, circumstances. See Ill. 2d at 351. note that this outcome is not with
We inconsistent appellate concerning court’s decision (1998) People App. 3d Jones, statements. v. 294 Ill. 23). (unpublished Supreme order under Court Rule objective surrounding the 15 state circumstances *24 today ments the consider are not and statements we analogous. August 15, did make an On defendant not plead guilty exchange unsolicited offer to in for a lesser charge. Rather, the for the detectives visited defendant purpose obtaining ver sole of defendant’s handwritten Attorney’s of the The sion the events for State’s review. prepared 15 was a statement statement written purpose the of at the direction of the detectives for sole negotiations. After the instructed to detectives defendant prepare statement, so, and defendant did the inter the July August 16, however, 27 the view ended. On and attempts bargain, detectives refused defendant’s in defendant continued discuss Dr. Dickerman’s death culpable. the not order to convince detectives he was finally requests the Defendant that we consider admissibility plain-error the of the statements under “ ‘[bjefore plain exception However, the waiver rule. plainly apparent ***, be error can be considered it must affecting rights that an substantial from record error ” People Keene, 1, 169 2d 18 was committed.’ v. Ill. (1978). (1995), quoting People Precup, 2d v. Ill. 17 73 nothing in However, we have determined that because engaged supports that ever in the record negotiations defendant 16, his on 27 or statements independent admissions, were and our review under plain-error not doctrine is warranted. Instruction Involuntary Manslaughter
III. jury to a that he was entitled contends Defendant The involuntary murder. on offense instruction instruction, that holding give trial court refused reckless no defendant acted were indications there 315 Ill. 3d App. The court affirmed. appellate manner. have brief, jury “The could states 508. Defendant died from a skull fracture Dickerman] that had [Dr. found had [defendant] further in a fall and found suffered which fall, during struggle a brief perhaps caused confronted Dickerman] [defendant] ensued when [Dr. argues forged Accordingly, checks.” about he is did not the instruction jury that because the receive jury. trial instructed properly entitled to new before a is a matter giving jury instructions within Castillo, v. People of the trial court. sound discretion (1999). 536, 540 An on a offense Ill. 2d instruction lesser sup when there is some credible evidence to justified is DiVincenzo, v. People of the instruction. port giving (1998). evidentiary there is 183 Ill. 2d Where instruction, involuntary for an support manslaughter give failure to the instruction constitutes an abuse DiVincenzo, 183 249. an discretion. Ill. 2d at Whether is involuntary manslaughter instruction warranted of each case. Di the facts circumstances depends *25 Vincenzo, 183 2d at 251. Ill. first manslaughter
The offenses of and involuntary states, murder that degree require different mental such a less mental involuntary manslaughter requires culpable involuntary Particularly, state than first degree murder. unintentionally a manslaughter that defendant requires that are by performing kill an individual acts recklessly ILCS great bodily to cause death or harm. 720 likely (West 5/9—3(a) 2000). is in section Recklessness defined 4—6 of the Criminal Code: he person recklessly,
“A reckless acts when is or consciously unjustifiable risk disregards a and substantial follow,
that circumstances or that result exist a will offense; described defining statute and such disregard gross constitutes a deviation from the standard of care a person which in reasonable would exercise 2000). (West situation.” 720 ILCS 5/4—6 Though defendant contends that sup- some evidence in ports recklessly causing that he acted Dr. Dickerman’s death, way the record in no this supports assertion. At trial, he present defendant testified that was not at the time Dr. Dickerman’s death and that he last Dr. saw Alternatively, Dickerman alive. his various statements (1) detectives, to the defendant claimed that he discovered (2) dead, Dr. Dickerman he at the Dr. while was house floor, a Dickerman had heart attack and fell to the (3) while he atwas the house Dr. Dickerman had a heart attack and hit his head he fell to the when floor. This evidence does not support struggle inadvertent fall. addition,
In pathology during evidence admitted trial did not an Pathologists warrant instruction. at trial that Dr. Dickerman sustained a skull fracture explained was of a to aby that either result blow the head object blunt or the result of fall. Defendant asserts that this evidence was sufficient for a to find that jury defendant knocked Dr. Dickerman down inadvertently during Again, a brief his death. struggle, causing defendant’s rebut claim. own statements this There no to claim support evidence trial simply Dr. In inadvertently caused Dickerman to fall. an require involuntary manslaugh- order instruction ter, must be some point able evidence the record he acted Because there is a recklessly. complete absence of evidence to an involun- support instruction, trial tary manslaughter we find that was not abuse give court’s refusal the instruction an of discretion.
33 IV Venue Defendant argues prove that the State failed to Sangamon County Dr. Dickerman was killed in therefore failed to element of- prove necessary fense—venue—and conviction must be vacated. death, At the time of Dr. Dickerman’s section 1—6 of general require Criminal Code set forth the venue (West 1994). ments for criminal actions. 720 ILCS 5/1—6 section, Pursuant to this venue was a material element of the offense and the State required prove was element beyond a reasonable doubt. v. People Digiro (1997). lamo, 24, matter, 179 Ill. 2d 49 In the instant State required to prove beyond venue a reasonable doubt.3
Therefore,
whether,
we must determine
after viewing
the evidence in
light
most favorable to the prosecu
tion, any rational
trier of fact could have found the es
sential elements of the crime beyond a reasonable doubt.
(2004).
People Evans,
v.
194,
209 Ill. 2d
209
It is not the
province of this court to substitute
judgment
its
for that
of the jury, and we will not reverse a conviction unless
unreasonable,
evidence is so
improbable or unsatisfac
tory that it raises a reasonable doubt of
guilt.
Evans,
209;
209 Ill. 2d at
Hall,
v.
People
194 Ill. 2d
(2000);
329-30
Digirolamo,
Venue is proper any county where any element of the offense occurred. See People Sims, v. 244 Ill. App. 3d provides, 3Amended section 1—6 required “The State is not prove during alleged trial offense occurred in particular 5/1—6(a) (West 2000). county in this State.” 720 ILCS amendment, however, This apply does not in the instant matter. procedure remedies, Amendments that affect or and not substan rights, apply tive retroactively pending Digirolamo, cases. 179 Ill. 2d at 50. This court has held that amended section 1—6 does apply not retroactively because the amended version of section change 1-—6 Digirolamo, effected a in substantive law. Ill. 2d at 50. (1993). victim is body Where the of a homicide *27 Illinois, in the death is to have oc presumed
discovered (West 1994). 5/1—5(b) curred in the state. 720 ILCS Illinois, the victim is not discovered in the State When and must establish presumption does not receive the beyond may venue a reasonable doubt. Venue be estab lished either direct or circumstantial evidence. by be shown circumstantial Particularly, may “[v]enue if there is evidence from which it proved evidence and is that the crime was committed in can be inferred Sims, took 244 Ill. county prosecution place.” where the App. 3d at 1004. body beyond
Dr. Dickerman’s was discovered Illinois’ However, evidence from boundaries. the record contains Dr. a rational trier of fact could have concluded which Sangamon County. Dickerman’s death occurred statements jury heard own Importantly, In his 27 and of where the death occurred. statements, Dr. Dickerman died in his defendant said learned that Sangamon County. jury home in that he removed Dr. informed the detectives body Sangamon County Dickerman’s from his house Illinois, body thereby explaining and drove the outside beyond Illinois’ boundaries. why body was discovered alone, in the most favorable light viewed This evidence survive the instant is sufficient prosecution, to the challenge. learned defendant
However, jury also note that the we checks, day on the he died Dr. Dickerman’s forged about the forgeries, Dickerman confronted defendant Dr. died defendant at- Dr. Dickerman day and that on forgeries appeared evidence of the to hide tempted he was unable to retrieve and nervous when anxious Further, his forgeries. mail evidence of containing at trial testimony with medical presented jury a blow consistent with Dickerman’s death was more Dr. object fall a cliff. to the head with a blunt than a from testimony Finally, jury also heard from forensic investigators regarding spatters evidence of blood on the rug wall, windowsill, Dr. Dicker- bathroom within investigator man’s house. The that the blood testified gathered rug from the bathroom matched the victim’s together, evidence, DNA. find that this taken is suf- We support beyond ficient to venue a reasonable doubt. Charges
V Amendment of the argues improperly Defendant that the State amended day the indictment on the of trial. The State amended charged indictment, count III of the which that defen- strong probability dant’s conduct death,” created “a strong prob- to state that defendant’s conduct “created a ability great bodily of death or harm.” *28 may charging
The State amend the instrument correct formal defects at time. 725 ILCS 5/111—5 (West 2000) (providing a nonexclusive list of formal defects). charged degree Defendant was with murder, first prior properly and the indictment to the amendment (West identified the relevant statute. 720 ILCS 5/9—1 1996). change The amendment did not alter or charge, scope or broaden the of the indictment. See People (1992). 1, 152 Ill. 2d v. Griggs, Further, 32 it did not add an alternative mental effect, state. In the indictment was amended to cure a scrivener’s error. Defendant was by surprise prepare neither taken nor unable to allegation. defense to the The trial court did not err in permitting the amendment.
VI. v. Apprendi New Jersey argues As a matter, final that his convic- pursuant tion should be overturned v. Apprendi New 466, 530 435, U.S. 147 L. Ed. 2d 120 S. 2348 Jersey, Ct. (2000), imprisonment, because a fact that increased his age alleged charging of the victim, was not in the
36 instrument and not to the jury proven submitted and beyond a reasonable doubt.
An Apprendi per se reversible error violation is not analysis. People may subject be to a harmless-error (2003). Thurow, v. 352, Here, 2d 203 Ill. the State uncontested evidence dur presented overwhelming ing years trial that Dr. Dickerman was 85 old at the time any Apprendi conclude, therefore, of his death. We violation in this case constituted harmless error. v. Blakely Washington, 296,
Defendant cites
542 U.S.
403,
(2004),
159 L. Ed. 2d
124 S.
as additional
Ct.
Apprendi
authority
proposition
for the
that “an
error
Blakely,
however,
simply
cannot be harmless.”
holds that
the statutory maximum for
Apprendi purposes
is the
may
solely
maximum sentence a trial
based
judge
impose
jury’s guilty
on the facts behind the
verdict or the
Blakely,
guilty plea.
See
542 U.S. at
Blakely
L. Ed. 2d at
CONCLUSION stated, judgment appellate For the reasons court is affirmed.
Affirmed. and KARMEIER took no part JUSTICES CARMAN in the consideration or decision of this case. McMORROW, specially concurring:
JUSTICE bar, In the case at defendant has raised a number *29 our review. For the most this court is part, issues for However, of these claims. agreement on resolution agree— there is one issue which the court does not upon counsel his first appellate following whether defendant’s challenge trial ineffective for admis- failing was on police, defendant made to sibility of oral statements 27, 1994, 16,1994, July August plea-related pursu- and as 402(f). Rule The lead Supreme ant to Illinois Court 27,1994, August 16,1994, finds that and opinion July thus, and, statements were not state- plea-related these 402(f). ments As were not inadmissible under Rule result, the lead finds that defendant’s initial opinion ap- counsel not for pellate failing ineffective to challenge suppression ruling the trial court’s with regard to these however, dissent, statements. The finds that defendant did receive ineffective assistance of appellate counsel 27, 1994, 16, 1994, because the July August and state- and, thus, ments were plea-related defendant was prejudiced by his initial counsel’s appellate failure to 402(f). their challenge admissibility under Rule I agree with the lead oral opinion that the statements made two dates in question here were not plea- However, related. I disagree with the lead opinion’s analysis First, of this matter. lead character opinion izes 27, 1994, defendant’s statements on (see 29) as “exculpatory” 27, 2d 219 Ill. which is, view, my 1994, inaccurate. On July 27, told police he Dickerman, found Dr. col lapsed on the home, floor and attempted give him CPR. Defendant admitted that he called no one to assist because he was getting afraid of in trouble. that, Defendant said instead of notifying anyone about condition, Dr. Dickerman’s day returned the next disposed of Dr. Dickerman’s it body, making look like Dr. Dickerman left on his own. On defen statement, dant revised his July 27 this time claiming that Dr. Dickerman suffered a heart attack while yelling at defendant forged about checks. Defendant still said he nothing did to save Dr. Dickerman and never admitted, called for before, assistance. He also as disposing body. view, Dr. Dickerman’s In my these statements should not be viewed as “exculpatory.”
38 analysis employed by with the lead disagree
I also
“objective
to
its statement
that
circum
opinion
support
any expectation
in the instant matter
reveal
that
stances
engaged
he
was
plea negotiations
[defendant]
that
1994,
August 16,
was not reason
July
both
The
opinion
See
I with each of above statements. defendant did information to the detec explain, give will of the detectives that his hopes convincing in the tives i.e., murder, less than something actions amounted a homicide. involuntary manslaughter or concealment confess, Defendant did not to murder—defendant’s albeit of to other criminal inculpatory were as statements did desire leniency respect that fenses. Defendant he convincing the detectives was hopeful was he and, therefore, charged should not be responsible for not to be with, hoped Dr. murder. Defendant Dickerman’s did Defendant some other lesser offense. charged with not did not com the detectives that “he hope convince 2d 29. Defendant gave See 219 Ill. at mit a crime.” murder, but he himself information to exonerate lead offers Thus, opinion to other crimes. admitted expecta holding for its that defendant’s justification no not was plea bargain was negotiating tion fails. its analysis reasonable on this by the dissent However, persuaded I am not one basic dissent, comes to though lengthy, matter. at the June 1996 testimony presented conclusion—that “establishes suppress motion on defendant’s hearing interview, the time of that, least with negotiate attempting to act agreed the and that Attorney’s office State’s (Kil 2d at 64 219 Ill. information.” See his conduit for as J., dissenting). bride, *31 It is true that defendant the point. dissent misses offenses on certain lesser to plead guilty offers to
made true also be may 1994. It meeting with during defendant’s that, point at some made 27, 1994, defendant July on place took police that to seeking not But defendant is guilty. to plead an offer the “rudiments offers, contain these which suppress everyone recognizes and which negotiation process” is defendant a This because negotiate plea. as offers to at trial that anyone that ever testified allege does not 27, 1994, August or guilty to plead made an offer Instead, seeking suppress, is to 16, 1994. defendant during made to police their factual statements entirety, view, In the fact my on these dates. interviews conducted not, by to does plead guilty that defendant made offers defendant seeks to itself, that the statements “establish” 402(f). under Rule discussions suppress plea-related were (Kilbride, J., dissenting). 2d at 64 See 219 Ill. that, to dissent, I in order
Contrary to the believe reasonable for objectively determine it was whether negotia engaged defendant to believe that he was time he the statements he seeks tions at the made the offers were it is to consider when suppress, important was made made, i.e., plead guilty whether the offer to issue, subsequent to or statement prior I the no present. reject else said the parties what was tion, dissent, that there is an “inherent by the espoused (see (Kilbride, J., Ill. 2d at 65 dis interrelationship” negotiate attempts between defendant’s senting)) that, plead guilty, to an offer plea, subsequent such every conversation a defendant has with police, over the course of months, weeks or is automatically transformed into “plea negotiations.” I also do not agree with the dissent that Friedman’s “ holding ‘a preamble explicitly demarcating ”
beginning
plea negotiations’
is not required,
is at
odds with the need for some sort of prefatory
offer.
omitted.)
(Emphasis
See 219 Ill. 2d at
(Kilbride, J.,
dissenting), quoting Friedman,
For all of reasons, the above I write separately.
BACKGROUND
At the heart of defendant’s
sixth amendment
claim is
an issue of importance:
is
When
a statement
part
plea
negotiations and, therefore,
subject
suppression under
402(f)?
Rule
An answer
to this question was recently
Hart,
provided by
in People v.
this court
It is that, in mind in both Fried- question Hart, man and before the court was whether permitted testimony it was error to have at trial reveal- ing “inquiries,” that the defendants had made certain inquired i.e., that the defendant in Friedman into “mak- ing inquired a deal” and that the defendant in Hart into cooperated.” “what I could do for him if he The issue inquiries was whether these were evidence of the subjective they attempting defendants’ belief that were “plea to enter into a Thus, discussion.” both Friedman prong two-part Hart dealt with the first of test. That is not the issue in the Here, case at bar. there is no question that, dates, certain defendant made offers in attempt plea negotiations. an to enter into But the state- attempting ments defendant made when to enter into plea negotiations were not trial, admitted at at least with regard 27, 1994, to the dates. question in the case at bar is whether it was objectively reasonable under the attendant circumstances actually engaged for defendant to believe that he plea negotiations when he made the factual admissions *33 suppress. and other statements which he now seeks to Consequently, court the issue before this resolution of dependent upon highly Thus, the case. an the facts of is utmost of facts is of and detailed statement accurate importance. bar, decision about when In case at containing “the rudiments made the offer defendant negotiation process” it was reasonable and whether to have believed for defendant under the circumstances engaged plea bargaining he made in when that he was suppress must be determined he seeks to the statements thorough end, I the facts. To that examination of after a following facts, I believe are additional which offer important the matter before us. to the resolution of painter, hired in
Defendant, itinerant was an 84-year-old Henry Dickerman, retired an Dr. repair painting gentleman, Dick work on to do some working the Dickerman home. Defendant was erman’s disap August Dr. Dickerman 1992 when residence Tuesday,August peared. had 11, 1992,Dr. Dickerman On group his friends, failed to attend but lunch with a August Wednesdaybridge game regular 12, 1992. His on missing reported 1992, 12, him friends investigation began at in an a massive the authorities investiga part tempt this Dickerman. As to locate Dr. speak police On defendant. with tion, the wanted message police for defendant 1992, left a 14, day, August phone. next mother-in-law’s on his gave He the State of Illinois. left give in which he claimed note4 to wife a disappearance knowledge regarding of Dr. no have Dickerman. September was home 1, 1992, Dr. Dickerman’s
On high-velocity processed time, scene. At this as a crime spatter, blunt-force cast-off from a with consistent blood upstairs injury, master bathroom. in the discovered full, reported, in the lead this note is 4The contents of Ill. 2d at 11. opinion. See 219 *34 1992, were discovered 5,
On skeletal remains September Missouri, Louis. On in a wildlife in near St. preserve identi- 27, 1992, positively these remains were September later, on days fied as the remains of Dr. Dickerman. Two 29, 1992, Dr. Dickerman’s car was located September lot. airport parking St. Louis Defendant returned to Illinois and was arrested 1992, 6, on October in relation to other al- Springfield date, defendant, crimes. On this in the leged presence counsel, extensively by his was local questioned police and an of the FBI Dr. Dickerman’s agent regarding disap- pearance. Defendant admitted that he had been at the 11, 1992, Dickerman home on August paint- to do some Defendant said home ing. he saw Dr. Dickerman leave the in the and return sometime after 1 morning p.m. Defendant said that Dr. Dickerman left the home again around 4 that p.m., stating going he was out to dinner with friends. Defendant said that he finished painting, left Dr. Dickerman’s home around 4:30 and never p.m., saw Dr. Dickerman again. Defendant also told the police that, on August 12, 1992, he left at about Springfield go a.m. to gamble Peoria to on a riverboat casino. Ac- defendant, cording he missed the 9 a.m. cruise so he went to a bar called Katy Hooper’s 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 for gambling. his “rated” Defendant repeated this story when reinterviewed him on 13, 1992, October in the presence of counsel.
The information defendant gave police was checked and determined to be a fabrication. The Katy waitress at Hooper’s whom defendant described had not been work- ing day. Moreover, no one else the bar remembered seeing defendant addition, on 1992. In casino checked defendant’s rating cards and could not verify that defendant had been on gambling 1992.
In the course of the police investigation, it was checks, discovered that three out-of-sequence made out $5,000, to defendant totaling more than had been drawn on Dr. Dickerman’s account. Defendant was with charged forgery three counts of in relation to these 17, 1993, On February checks. pled guilty and, 23, 1993, one of the counts of forgery March sentenced to five years’ imprisonment.
On July officers, two Springfield police Cox and Young, went to the Graham Facility, Correctional where defendant was serving sentence for the forgery conviction. The officers advised defendant informa- *35 tion he had given police regarding his whereabouts on 11 and did not They check out. asked if he would be with them. willing speak Defendant was also advised that he would charged soon be with weapons charges. certain Defendant indicated at this time that he wished regard- to make another statement Dr. ing disappearance Dickerman’s because of what 80% true, he had told previously police was but there were some changes stated, wanted to make. Defendant however, that he wished to have counsel He present. noted that he unsure whether he was still being represented by attorney who had assisted him in the forgery matter. He asked the officers to check into the matter representation of his because he had been unsuc- cessful in reaching previously assigned counsel. Noth- ing regarding substantive Dickerman matter was discussed this Although date. defendant’s counsel was contacted, no date was set for another interview. 1993, 23,
On officers September Springfield police Young Cox and FBI Schmidt accompanied agent Facility. Graham Correctional A warrant was served on concerning weapons charges. Although certain date, defendant was interviewed on this the Dickerman case was not discussed. Springfield police 1994,
In June detectives traveled other Indiana to meet with defendant’s mother and rela- explained likely it tives. detectives that was that degree charged be defendant would soon with first murder in Dr. connection with Dickerman’s death. The family they if officers asked the had further informa- concerning tion defendant’s involvement in Dr. Dicker- suggested that, man’s death. It was also if defendant was responsible death, not for Dr. Dickerman’s it would inbe attorney his best for interests him to contact his so that arrangements he could make to meet with the explain the extent of his involvement.
Shortly July Springfield police thereafter, 1994, by were contacted She mother. said defendant police, wanted talk with the wanted but the conversa- taped. tion to be She said that defendant asked that the bring tape copy detectives two recorders so one that taped interview could be retained defendant. Defendant’s mother also indicated defendant wanted type Attorney stating some of “note” from the State’s penalty ranges manslaughter for various crimes from upon to murder. Springfield police Young
On officers Big Muddy Facility, and Williamson went to Correctional being They where defendant was then housed. testified suppression hearing they tape brought at the two *36 they brought recorders, but could not remember if also upon arriving that, “note.” The officers testified facility, rights the defendant was advised of his and that agreed rights. tape to waive his The recorders were began. taped started and the interview Once the inter- began, again given view defendant was Miranda warn- ings. Notably, anything defendant was told that he said against could and would be used him in a court of law. taped Defendant stated he understood. Nowhere in the giving interview does defendant indicate that he is his particular purpose other than to amend statement for a addition, In the officers who were his earlier statements. any- present promised testified that no one defendant taped thing exchange for statement. taped began interview around noon. Five minutes request. stopped tape later, at defendant’s was spoke for about 55 minutes Defendant with detectives tape testified that recorder off. Both officers with essentially gave during them a this time defendant tape. “preview” The officers he later said on what began during time, that, defendant this also testified attempting questioning them, to learn what the point,, investigation. already At one from their knew appeared detectives frustrated because the forthcoming not with information about were you investigation. out, “I don’t then blurted know He weapon.” Defendant also asked the the murder have upstairs fact bathroom—a detectives about blood publicly had not released. that been tape p.m., recorders were turned At about 1 transcript According to the the interview resumed. that Dr. interview, defendant told the detectives forged had some of that defendant Dickerman discovered Monday, August 10, 1992. Dickerman’s checks on Dr. spoke him about Dr. to said that Dickerman Defendant happy although Dickerman not and, Dr. the checks they to done, able come an had were what he about they agreed agreement. had Defendant said work around do some additional defendant would Defendant off the debt. work Dickerman residence day, August some 11, 1992, he did next that the said p.m., painting when around 4:30 at Dickerman’s until Dr. birthday shopped They pick up for his wife. he went dropped gift his wife then he for mother-in-law to Dr. he then went back home. Defendant said off at up p.m., pick and 5 between 4:30 Dickerman’s home *37 arrived, that, when he He said materials. for some check said Defendant inside. and he walked open the door floor, dead, next to lying Dr. Dickerman he found said, Defendant then room. living chair in the his green he was think that I don’t my opinion “I don’t—in Dr. Dickerman thought Defendant said murdered.” reason, give he tried to and, for that heart attack had a Dr. Dickerman CPR kill Dr. Dick- “I did not explain, went on to
Defendant knew about only Dr. Dickerman erman,” but because forged regard with they had reached arrangement into trouble. checks, get worried that he would he became said, help. he did not call for reason, defendant For this home, leav- the Dickerman Instead, defendant said he left else would unlocked, that someone hoping the door ing that, evening, later that find the Defendant claimed body. and, gesture as a he returned to the Dickerman residence to the couch. body moved Dr. Dickerman’s compassion, that, he came sleepless night, Defendant said after a body. rid Dr. Dickerman’s plan get with a up Dicker- a.m., and he went back to Dr. Between 6:30 home, in the trunk of Dr. Dicker- placed body man’s car, place man’s and drove around until he found a cliff, After over a dump body. throwing body International defendant drove to Lambert-St. Louis long-term parking, left the car in took Airport, terminal, stop, took taxi to a truck shuttle to the of a number of Dr. Dickerman’s disposed where he statement, (checkbook, keys, glasses, bank personal items medicine) that defendant had taken to make it look away if Dickerman had on his own. gone as Dr. no of- taped interview contains transcript fact, Young, questioned
fer to In Officer when plead guilty. did not recall that defendant hearing, at the suppression date. It was not until he was made offers on this a brief notation confronted with the fact that there was at the end of his notes regarding the visit that he remembered any offer. asked When about the entry, Of- ficer Young only vague that, had memory at some point *38 during the date, officers’ visit on this defendant indicated that he believed the with, most he could be charged based actions, on his was involuntary manslaughter or conceal- ment of body; a that defendant indicated a willingness to plead to a lesser charge. Officer Young admitted that he agreed to convey offer to the State’s It Attorney. should noted, however, be that Officer also Young testi- fied, “I remember him telling [defendant] we couldn’t negotiate anything Moreover, with him.” earlier, as noted no one ever testified at trial that defendant made an of- fer plead 27, to guilty on 1994. pled
Defendant guilty gun charges 28, 1994, to on July and, for reason, this was moved to the County Franklin jail. August 3, 1994, On Springfield police officers Cox and Young went to the County Franklin jail to review with defendant transcript taped earlier interview. Defendant listened tape to the as he read with the along transcript. agreed Defendant that the was ac- transcript curate and signed it. At the April 1996 suppression hear- ing, that, Officer Young testified was transcript after reviewed, defendant indicated that he was willing to negotiate a a lesser offense for a reduced sentence. they officers said told defendant had they no ability negotiate deals or accept any offers, but agreed to transmit the offer to their supervisor. Officer testified Young that when he returned police to the sta- tion he informed his supervisor, Sergeant Conway, of defendant’s offer. At Sergeant Conway’s request, Officer Young went back to see defendant August 15, 1994, and had defendant write out his plea offer. This is the written statement appellate which the court ruled inadmis- 402(f) and, sible under Rule after defendant’s first trial thus, suppressed at defendant’s second trial. 16, 1994, officers August Springfield police
On County to the Franklin this time to serve jail, returned Dickerman. warrant on defendant for murder Dr. brought copy The officers of the Criminal they said so that the elements of the of- Code defendant could read that, if fense murder. The officers suggested charge believed the of murder was inappropriate, Defendant, should tell in an why. them effort convince Dickerman, he did Dr. agreed not murder police again with the officers. Defendant was speak given then warnings. Miranda He told a different ver- happened sion what on August 1992. Defendant said that Dr. Dickerman received bank statement and discovered the forged checks on Tuesday, (not Monday, as he previously had indicated). Defendant said that Dr. Dickerman became quite angry began at him. yelling point, At this *39 said, Dr. defendant Dickerman clutched his chest and fell down, hitting fireplace his head on the as he went. The remainder of story, regarding defendant’s the of disposal body, remained the same as in his earlier statement.
ANALYSIS Only the statements made defendant on police August 16, 1994, and at are issue in the present appeal. Defendant contends that he told everything police on these two dates and, constitute discussions plea therefore, should been have ruled inadmissible under 402(f). Rule Because defendant’s initial appellate counsel challenge did not of these in admissibility statements his first appeal, defendant he claims received ineffective assistance of counsel. 402(f)
Illinois Supreme provides: Court Rule plea “If a discussion does not result in plea guilty, a of if plea guilty or of accepted withdrawn, is not or is ifor judgment a plea guilty on reversed is on direct or col- review, lateral the plea any neither discussion nor result- ing judgment shall be agreement, plea, or admissible against proceeding.” in 177 Ill. the defendant criminal 402(f). 2d R. rule that are provides Since the discussions” “plea inadmissible, the rule what is a begs question, above, As we addressed this issue explained discussion? (2005). Hart, Hart, v. People 2d 490 In recently in Ill. Beck Decatur detective Michael testified trial that he had interviewed defendant after arrest, rights, advised the defendant of his and that defendant with him. Beck testified agreed speak initially outstanding an began talking defendant about warrant, he but Beck told the defendant that wanted told robbery. talk the armed Beck testified that he about (defen that he knew was involved defendant defendant witnesses) tentatively dant had been identified if he then I could do for him that defendant asked “what Beck testified that he told defendant cooperated.” tell the State’s any promises, could not make but would ended and of his The interview Attorney cooperation. rob any involvement in the defendant never admitted bery. testimony, prosecutor argued, on Beck’s Based only guilty “Ladies and argument, gentlemen, closing On they cooperate.” if get they men want to know what time, he was for the first appeal, argued, defendant testimony trial elicited prosecutor denied a fair when plea bargain commented attempted this argument. resolving ap In attempt closing cooperate was not held that defendant’s offer to peal, we 402(f). meaning Rule “plea discussion” within cases, other we examination After an extensive be into what could inquiry that defendant’s concluded *40 cooperated not contain the “rudiments done if he did plea and, thus, was not discus process” negotiation no decision to make Also, we held that defendant’s sion. response to hearing after the detective’s statement did have a that defendant not was an indication inquiry negotiating plea expectation” “subjective that he was inquiry was evidence that, even if defendant’s expectation, expectation subjective totality objective not reasonable under the Hart, 2d at 511-12. circumstances. Ill. quite Here, there is
The case at bar is different. which that defendant did make an offer evidence negotiation process.” contained the “rudiments of the July suggests point 1994, that, at some on The record guilty plead some offense defendant made an offer to to concealment) exchange (involuntary manslaughter or particular However, evidence for a sentence. there is also plead guilty offer did not come until that defendant’s transcript July August 3, 1994, 27, 1994, after the of his event, statement was reviewed. In either it is clear that plead guilty “plea were actual offers defendant to plea and, such, offers, discussions” as these like the August 15, 1994, offer, would inadmis- written be 402(f). sible under Rule seeking earlier, however,
As noted defendant is not suppress plead guilty. Indeed, his offers to no one ever testified, trials, at either of defendant’s two that defen plead guilty July 27, 1994, dant made an offer or on “devastating Thus, 1994. effect” that revealing jury plead guilty to a a defendant’s offer to can (see 353), Friedman, have on a case 79 Ill. 2d at which 402(f) prevent, Rule is intended in this did not occur case. asking
Here, defendant is us to find that admissions regard- 16, 1994, he ing made disappearance his involvement in the and death of suppressed plea- Dickerman, as Dr. should have been i.e., discussions, related statements made in furtherance guilty. plead issue, of his offers to To decide this the facts surrounding the statements must be considered. For this analyze separately. reason, I the two dates
July 27, 1994 Springfield police On officers went to response request see defendant to his and conducted a taped transcript interview. The interview, as well testimony, prior any as the officers’ establishes that to questioning, rights defendant was advised of his and was specifically anything told that he said could be used against acknowledged understanding him. Defendant his warnings tape signed and, these later, the when he transcript. Nothing tape transcript the testimony on the or and no suppress supports
at the motion to or at trial prior giving the that, notion to statements, plead guilty any offered to to crime or that his state- ments were made in Instead, furtherance of such an offer. strongly suggests the evidence that defendant made his attempt cooperate police. statement in an to with the Thus, Hart, as in the statements are not discus- sions. presented above,
As noted there was some evidence hearing suppress suggests at the on the motion to which point during meeting that, at some defendant’s with police date, on this defendant tried to elicit from the of- agreement ficers an that his actions constituted some of- charged fense other than murder and that he should be However, with some other offense. based on the record particular, testimony and, in elicited from the officers hearing suppress, at on the motion to even if plead guilty defendant did offer to date, on this during taped admissions defendant made interview prior were made such offer. totality
I reach this conclusion based on the circumstances. The officers testified that defendant was manipulative conniving. know, too, We that he was a good storyteller stories, who could build elaborate complete plausible embellishments, with intricate and suit the situation. This is evident from the letter he sent police August explaining 1992, his rationale for state, told in leaving story October his whereabouts on 11 and 1992. It regarding is also clear from the record that defendant requested meeting with after he learned that it police likely charged that he be murder. Defendant would soon with knew that the had investigated his alibi for 12, 1992, and found that the alibi did not check out. It is conclude, therefore, reasonable that one *42 motives for to requesting meeting the was learn what the police knew about his involvement in Dicker- Dr. man’s disappearance police and what the knew about the cause of Dr. Dickerman’s death. Defendant wanted to discern what evidence the had so that he could tailor his statements to conform with the evidence. This explains why, interview, five minutes into taped the as soon as defendant was asked to explain his whereabouts on August defendant tape asked that the be stopped. appears It that defendant wanted to “test” some information on the example, officers. For sug- defendant gested that Dr. Dickerman had not been so murdered he could see the officers’ reaction. This is supported by the testimony that, officers’ when tape off, was shut defendant began questions them asking about investigation and that he became frustrated when they refused to tell him autopsy about the results and other information. When defendant get was unable to wanted, information he he tried to convince the officers that he guilty some other crime than murder. To end, he recounted the he story how found Dr. Dickerman already dead of Dr. disposed Dickerman’s body. view,
In my interview, the contents of taped as behavior, well as defendant’s indicate offer to plead guilty came after he had the opportunity to provide the officers with a factual basis for the lesser charges. then, The question, is whether defendant’s subsequent 54 to state
plea proposal ability has convert earlier I ques into this “plea ments a discussion.” would answer Friedman, Ill. People in the In v. 79 2d negative. tion (1980), this held is court “there a distinction plea of a a statement made the furtherance between independent and an otherwise admission discussion our we held by Explaining, which is not excluded rule.” subjective expectations are that “where a defendant’s objective explicit, surrounding not circumstances precedence evaluating statement take defendant’s claim that the statement was subsequent Ill. 353. Friedman, example, related.” 2d at As an v. approval cited with United 578 F.2d Levy, we States (2d 1978), held: Cir. wherein the court an bargaining implies plead guilty upon “Plea offer must, way, offer in some condition. The punish- express hope that a concession to reduce the uncommunicated, pass. hope, A ment will come silent if prosecutor reject or chance to gives the no confes- the officer contrary permit not A rule would ac- sion did seek. grant retrospectively what is akin to cused himself immunity. voluntarily made use Even statements after objected warnings be to on the Miranda would later *43 ground they anticipation were made in a purported that system plea A balanced guilty since reconsidered. criminal to in a justice should not be made function such added.) Levy, swampy (Emphasis 578 E2d 901. terrain.” is my view, plea proposal In of defendant’s timing 402(f) retrospectively not to may Rule be used important. guilty offer to plead statements made before an immunize to A failure communicate proffered. been has the op- denies the officers subjective expectation his proffered the defendant’s statements. portunity reject to bar, subjec- if defendant had a Thus, in the case at even were being that his factual statements expectation tive expecta- later that proposal, in furtherance of some made I hold that Accordingly, reasonable. would tion was not 27, 1994, made on July defendant the factual statements were they because subject suppression were not in furtherance admissions not made independent offer. subsequent plea any an of- made if it is true that defendant even
Finally, of the at the outset to a lesser offense guilty plead fer to that, find under I would police, with July meeting belief that circumstances, subjective any objective negotiations engaged plea he was had that defendant taped Here, gave before defendant unreasonable. was warnings and was Miranda interview, given defendant would be used that his statements was told explicitly testi- Moreover, repeatedly officers him. as the against guilty, fied, any plead made offers to whenever defendant ability negotiate plea. disclaimed they expressly clearly show suppression hearings transcripts they informed defendant that repeatedly the officers that filed, that would be charges had no control over what they position that were not they told defendant him, that defendant said he under- with negotiate to let the the officers could do was stood that most defendant willing State’s know what offers was Attorney fact, all of defen- to make. In the officers characterized offers, made, as they dant’s of when were regardless “unilateral” attempts negotiate. any subjec- should take over precedence
These factors Thus, have had. might tive that defendant expectation into attempted plea negotia- even if defendant to enter meeting, attempt tions at the outset of the and, reason, I find the officers for that would rejected by may that defendant have any subjective expectation part interview was of a discus- taped had that his under the circumstances. Rule sion was not reasonable 402(f) the statements suppressing no basis for provides made on 1994. defendant offic- gave On *44 plead guilty. day, ers a written offer to however, next August 16, on 1994, Officers Cox and Williamson re- County jail turned to the Franklin with a warrant for charge defendant’s arrest on the Thus, of murder. rejected. defendant’s offer had been they Officer that, Coxtestified when visited defendant they brought containing date, on this with them a book explained suppression the Criminal Code.He at the hear- ing: Jones, “Officer Cox: interviewf,] Mr. the other was
very in paperwork, interested 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 degree first murder—what the degree statute said was first murder and other charges may he be curious about.
Q. you So wanted to be able to show him what the actually statute said?
A. Yes.
Q. you And this bringing was when were a warrant for his arrest for that particular charge, degree first murder?
A. Yes.
Q. Okay. Why you did even care what he though [sic] at point, since he in fact had charged; been is that cor- rect?
A. He charged had been with degree first murder but all through this investigation I believe as a team we’ve done everything straightforward Jones, we could to be with Mr. expressed he on earlier occasions that he believed it 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.” explained transpired Detective Williamson also what August 16, 1994: Jones, you “Detective Williamson: Mr. as I’m sure know[,] very thorough, up is he had a lot of time read did, kept apprised himself of a lot of the law and we couple had on a of conversations talked about the different law, statutes under the Illinois and we did take that *45 time, it Chapter, Chapter I it 38 at that believe was still book to may have but we did take that Franklin changed, County jail that anticipating that he would want to read with available him because he did have materials him or he cited we did interview him. that when Q. like [Prosecutor:] Youmean the differences between degree, degree, type thing? second first that Well, ask but questions A. he did about that the materi- he had and als available were motions to file more techni- now, aspects like we’re I know if had doing cal so don’t Chapter questions a area.” 38 and he asked us related to that At some point during defendant’s discussion with on August expressed officers defendant a desire to amend his previous statement. The officers testified that, they once of his again, advised defendant Miranda rights. Defendant then told the that he officers had been in present Dr. Dickerman’s home when Dr. Dickerman and forged received bank statement discovered the checks. Defendant said that Dr. Dickerman became extremely him, angry yelling him, with started and had a heart attack while at him yelling 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 independent were admissions. It is important note that there is no that indication defendant prefaced his statements on this with date a new offer to plead guilty. testified, No one hearing either at the on mo- suppress trial, tion to or at that defendant ever made an plead offer to guilty August 1994, or that his state- ments were part plea Thus, discussion. while may subjective defendant have had a expectation that his statements on this date were being made furtherance offer, of some earlier that not subjective expectation was communicated, nor was it objectively reasonable. His earlier offer had rejected, been as evinced fact that a warrant had charging been issued him with brought
murder. The officers who delivered the warrant them to that his Criminal Code with show defendant actions murder. additional state- constituted Defendant’s made ments were in an effort to convince the officers otherwise. had no
Defendant was well aware that the officers ability change charges against him. to authorize a they The officers had testified on several occasions that they ability repeatedly had no told defendant bargain acknowledged under- and knowledgeable experi- stood this. Defendant was investigating Dr. enced. He knew that the officers were seeking from Dickerman’s death and were information *46 given warnings he him. before Defendant was Miranda gave cooperate, decided to his new statement. Defendant hope that he could convince the officers with with the plausible story new, did not Dr. more he murder objective circumstances, Based on the Dickerman. subjective expectations may defendant have had that plea engaged I not was in discussions were reasonable. date defendant made on this conclude that statement simply plea does not discussion and Rule 402® apply. not
CONCLUSION above, I find that For reasons set forth would July 16, 1994, 27, and statements defendant’s independent not were admissions and discussions. they subject suppression under Therefore, were not agree majority result, As a I with the Rule 402®. appellate was not ineffective initial counsel challenge ruling failing mo- trial on the for court’s suppress regard with to these statements. tion to special joins in this concur- FREEMAN JUSTICE rence. KILBRIDE, in and dis- concurring part
JUSTICE senting part: that the trial court did opinion
I
with the lead
agree
of
err in
defendant’s motion for substitution
denying
not
(219
19),
“special-circumstances”
Ill. 2d at
that the
judge
collateral
application
does not
exception
preclude
(219
20-21), and that
in this case
Ill. 2d at
estoppel
(219
trial
Ill. 2d at 33-
sufficiently proved
State
venue at
35).
however,
remainder
I
with the
respectfully disagree,
rejection
I
with the
analysis.
particularly disagree
of its
right
of defendant’s claim that his sixth amendment
effective assistance of counsel was violated when his
appellate counsel failed to raise the issue of the
original
denial of defendant’s motion to
27 and
suppress
statements.
a claim of ineffective
examining
When
assistance
counsel, we
test
v.
apply
two-part
Strickland
668, 687-88,
Washington, 466 U.S.
80 L. Ed. 2d
(1984);
Evans,
104 S.
v.
2d
People
Ct.
186 Ill.
(1999).
83, 93
That test
requires
show:
(1) counsel’s
fell
performance
objective
below an
standard
(2)
reasonableness;
deficiency
this
prejudiced
defense because in its absence a different
result was
Evans,
reasonably probable.
Here, the did not the opinion lead address second of the Strickland test because it concluded prong the 219 Ill. 2d at satisfy prong. failed to first I prongs 24. believe defendant has met both 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 statements was objectively reasonable. In defendant’s appeal, first counsel successfully argued only defendant’s 15 statement should have been barred under Supreme 402(f) Court Rule as part plea-related Ap- discussions. pellate counsel never challenged the admissibility of the other two statements.
I As the notes, lead opinion not all statements “made in the hope of gaining concessions are plea-related state 402(f).” ments under Rule 219 Ill. 2d at I agree 28. as well opinion’s with that recitation factors relevant to a determination objective reasonableness of a subjective defendant’s expectations, namely, the nature of the statements, audience, “and most importantly here, what to the parties conversations actually said.” See 219 Ill. 2d at I disagree, however, 29. with the application of these factors and the characteriza tion of testimony in this case the lead opinion and special concurrence. 402(f)
In my view,
analyses
these
Rule
apply
far more
Friedman,
v.
narrowly
People
than this court intended in
(1980).
79 Ill. 2d
so,
351-52
In doing
they unduly
limit
the rule’s application
only to those statements
constituting
skeletal offer to
plead
stating
those
in Friedman this court
potential
contrast,
terms. In
recognized that
the rule also broadly
encompasses
parties’ plea-related
Friedman,
statements.
press spanned days several and included a great deal of pertinent addition, In testimony. there was extensive testimony presented trial, related including significant *48 he evidence defendant’s claim that supporting attempted plea negotiations to initiate at the 27 interview 16. plea-related made additional statements on is particular determination whether a statement basis, be on plea-related case-by-case must made a mak offered ing specific analysis evidence critical to the this case. Ill. 2d For at 351-52. Friedman, v. People reason, testimony this I set forth much of the relevant verbatim.
During Officer pretrial testimony, Young his acknowl- edged that defendant down guidelines would “set some or him, whatever that he was fair he felt to that [sic] like specifically, Young’s would to see More happen.” testimony revealed that on July defendant “indicated to he [Young] that didn’t believe it was first murder, degree that the most it could have been would be body forth, concealment and so things of that nature.” testimony This establishes even that that date early discussing with the beliefs as to the appropriate charges.
Young’s subsequent testimony demonstrates that July 27, 1994, interview unequivocally contained the of plea negotiation: rudiments *** “Q. [July [A]t 27] time had had—he [defendant] you, instance, told willing be plead would for
Involuntary forth, correct? Manslaughter and so A. I’m not sure if it was on date or a date after that you. to be honest with
Q. you your Do have report right there?” (Emphasis added.)
After locating portion the relevant Young’s report, testimony critical concerning the July 27 interview continued: Yes, could,
“A. please. that would I you’re be—if I believe that, just correct on I wanted to be sure.
Q. Sure. Yes,sir,
A. that is correct. Q. Okay.And would, on that occasionhe for instance he said, know, you thought the most he it could be is Involun- concealment, tary Manslaughter or correct? Yes, sir,
A. that’s correct. Q. you convey And wanted At- that he State’s *49 more, torney accept year that he’d ten sentence and no correct? Yes, sir,
A. that’s correct. Q. And that he wanted it to run concurrent with charges facing, was correct? he federal correct, yes, A. I that’s sir. believe Q. you convey things And wanted to these to believe, Attorney I correct? State’s A. That’s correct.
Q. Okay. you you And him that would do that advised him, you get would back to and correct? telling any- negotiate
A. I him we couldn’t remember thing with him.
Q. Right. go But I do remember that I told him we would back A. and, Conway, Sergeant to time our boss which that convey and that to him and— Kelley, Q. you you convey it to And told him would Mr. correct, Kelley, Office, Attorney’s with the State’s Patrick added.) get (Emphases to the also and back Defendant?” to the being appropriate page report, After directed his Yes, correct, sir, affirmatively: “A. that is Young stated added.) report.” (Emphasis that’s my at- facts establish that defendant was These alone at the plea negotiations to enter into tempting specific charges sentencing and by offering interview addition, testimony Young’s him. In acceptable terms to to police agreed that at that time the demonstrates Attorney on defendant’s convey messages to State’s of his efforts. negotiation behalf in furtherance for these conclu- provided support also Young Officer testimony concerning his subsequent sions in his during He confirmed that 3 interview defendant. his désire to again brought up interview defendant as well as for a sentence negotiate 10-year Attorney. the State’s conveyed to that his offer be request Young always “had asked whether counsel Defense [Young] provide would advised [defendant] Office,” Attorney’s to the and so State’s forth information ” answered, “Yes, sir, (Emphasis correct. that’s Young and added.) returned to a discussion then questioning interview: July 27 you
“Q. just briefly as far as a note that—do Okay.And Attorney’s Of- you give to the State’s recall a note were to [defendant]? fice from Conwayafter Sergeant met
A. I remember when we with taped [July 27] having [sic] coming back from the Conway Sergeant [defendant] with that we told interview negotiate about wanting try some [defendant] requested I himself, Sergeant Conway terms for—for read the that when we returned to have believe [defendant] put I it into writ- transcript and that we ask him believe wanting say, ing as to what he wanted or what he was I do believe that did do that.” he—[defendant] added.) (Emphasis *50 other Notably, testimony given by all the relevant did, fact, on they verified that return police witnesses have defendant oral offer put prior 15 to ac- writing, lending credibility Young’s further to Officer during July count that the 27 transpired of all events not interview. The officer’s testimonial account was defendant memorialized limited to official statements opinion the lead audiotape recording by on the relied establishes special testimony concurrence. of far more than July 27 interview consisted statement or even the discussion that taped defendant’s interrupted. was place taping temporarily took when Young’s testimony It is that Officer noteworthy also full after given nearly years was in June two July defendant made the 27 and 16 statements. time, can After such a witnesses’ memories passage detail critical to the determina- specific fade and lose the reports, his official reviewing tion in this case. After drafted contemporaneous interviews, however, to the Of- ficer Young’s testimony concerning negotia- defendant’s tion efforts unequivocal. was When viewed in its entirety, this testimony, as confirmed by officer’s own timely reports, that, establishes least the time of the July interview, defendant was attempting negotiate plea with the State’s Attorney’s office and that the police agreed to act as his conduit for information. This evidence establishes that July 27 statements 402(f). “plea-related were a discussion” under Rule Additional support for the claim that defendant’s July 27 statements plea-related were comes from the testi- mony Williamson, of Detective who was also present dur- ing that He interview. stated that prior the interview defendant had requested “a note” from the State’s At- torney’s office concerning penalties for various homicide charges as well as the presence of two tape recorders during interview. Detective Williamson testified he and Detective Young complied with defen- Thus, dant’s requests. the evidence shows that defendant asked in advance for information about the possible charges and penalties and, he was facing, at the interview, stated willing plead guilty to involuntary manslaughter or concealment in return for a maximum 10-year sentence to run concurrently with his prison addition, federal term. In he provided a statement intended to show he was not culpable degree first murder. These fit neatly factors the mold of a conscious plan to enter into plea negotiations time, at that and in fact, the testimony establishes all the parties involved then believed defendant was attempting negotiate plea. *51 concurrence,
The special however, chooses to examine the events, various interviews as solely separate disrupt- the ing continuity negotiation of the process begun at the July notes, 27 interview. As it evidence also exists
65 guilty defendant offered to on showing plead his July the reviewing transcript 3 after (McMorrow, J., specially at statement. 219 Ill. 2d 48 J.). evidence, From this joined Freeman, concurring, by when regarding the concurrence infers a conflict special I no neces plea the first occurred. believe there is guilty at sary negotiation conflict. The defendant’s additional question or call tempt negate on 3 does not into validity clearly the show prior July testimony broached as well. various ing plea issue was then As established, officers’ raised the testimony defendant issue on numerous occasions. than viewing police
Rather series of interviews as entities, recognize unrelated I the inherent interrelation ship negotiation attempts, between defendant’s various as did the police By time of interviews. considering each as from the disparate discrete interview others, however, special attempts concurrence acknowledge the point evidence “at some showing during date, meeting police with on this tried to elicit an agreement from officers that his actions constituted some offense other than murder and that charged he should be with other some added) (219 (emphasis offense” 2d (McMorrow, Ill. at 52 J., specially concurring, joined Freeman, J.)), by while his ultimately concluding independent statements were (219 (McMorrow, admissions 2d at J., Ill. specially J.)). joined Freeman, concurring, I it find hard to characterize defendant’s admitted at- *** tempt to “elicit from agreement” an as other than offer anything plead an to a lesser guilty charge, particularly light of his contemporaneous to a possible reference set of As sentencing terms. previously quoted transcript excerpts establish, both defendant’s offer to to a lesser plead charge specification of acceptable sentencing terms
66 the them- readily apparent
are from record. The negoti- believed that defendant was to attempting selves circumstances, Under I cannot plea. ate a those dismiss the statements defendant made that interview during Dr. addressing his involvement in Dickerman’s death and disposal body “independent as admissions” or mere offers to cooperate. they
The context of defendant’s statements shows a negotiate plea were intended to his efforts to support It is dif charge degree other than first murder. some savvy to envision such a why purportedly ficult unless, fact, make in types would those of statements them in of his a support attempt negotiate plea. made 402(f) must not that Rule does not forget preclude We offering admission of statements only directly or for present terms and conditions plead guilty possible all Rather, it agreement. broadly encompasses a plea discussions, including statements plea-related supporting of the criminal case. disposition the defendant’s desired (not Friedman, 352 402(f); Ill. 2d 79 Ill. 2d at See 177 R. are under plea-related statements inadmissible ing 402(f)). context, I do the state Rule Read in not believe in this case concerning ments involvement admissions.” “independent can be dismissed as special I also cannot with the concurrence’s agree of a offer does requirement prefatory insistence in Friedman. 219 not conflict with our instructions Ill. J., (McMorrow, concurring, joined 40 specially 2d at J.). Friedman Freeman, Indeed, discussed prominently a discus “preamble” of a need for a before the absence Friedman, Ill. 2d at may plea-related. sion be deemed explained we there: 352. As parties seated agree
“Nor can we that the must be applies. negotiating our rule A statement made table before indistinguishable a negotiation is as an enter from offer negotiation stage made at an advanced statement upon jury. impact its Statements process terms of stage process equally to either of this are devastat related ing in the trial of the accused. In determining whether a related, plea require we do not *a statement is preamble explicitly demarcating beginning preamble But where a is [citation]. discussions’ delivered, inquiry ‘making such as defendant’s related to case, present ignored. [Citation.] deal’ it cannot be This is a pursue clear indication of defendant’s intent to added.) plea negotiations.” Friedman, Ill. 2d (Emphases at 352. *53 Friedman, our clear statement in I recon-
Given cannot special cile the concurrence’s requirement prefatory of a offer with our I find that the precedent. Finally, conflict- in ing testimony the evidence is far from conclusive establishing that defendant made negotiation attempts only making statements at issue. after special
The concurrence also concludes that “one of defendant’s motives for requesting meeting was to learn what the police knew about his involvement Dr. Dickerman’s disappearance what knew police about the cause of Dr. Dickerman’s death.” (Emphasis added.) 219 2d (McMorrow, J., Ill. at 53 specially concur J.). ring, joined by Freeman, that may While well have been one of defendant’s motives in with the meeting police, he could held easily motives, have additional such as a desire to enter plea Indeed, into negotiations. latter possibility by is supported request advance for information on the possible charges and as well penalties as his subsequent interview, actions during laying out acceptable terms and conditions. These actions demonstrate a to I plan pursue negotiations. also note 402(f) that neither Rule nor cited precedent precludes that a finding defendant was attempting negotiate a plea merely because he is motivated self-interest and a desire to obtain the best possible deal. Those motiva presumably most, tions underlie the negotiation efforts of all, if not defendants. Even if defendant wished to obtain additional information from the it police, negate does not his simultaneous intent a favorable negotiate plea. police The record is clear that who conducted the interviews understood that defendant was attempting Indeed, negotiate plea. the detectives acknowledged they had understanding a mutual with defendant they agreed and that to “run the the State’s options by Attorney.” The on this is further testimony point sup- their ported by actions. informed Although they initially themselves, they could not make a deal they him they relay told would information to the prosecution expedite negotiation process ultimately did so. “[wjhere subjective a defendant’s
Moreover, only
expectations
are not
explicit, [do]
objective
circum
surrounding
prece
stances
defendant’s
statement
take
in evaluating
subsequent
dence
defendant’s
claim that
added.)
plea-related.”
the statement was
(Emphasis
Friedman,
Here,
As for defendant’s Detective Cox testified that he believed that defendant subjective expectation had negotiating plea.
that he was He succinctly attempted stated that “defendant to negotiate added) (emphasis terms for himself” at each 3, IS, interviews conducted on August August and August testimony 16. Detective Cox’s restated with absolute clar- ity attempting negotiate plea that defendant had been police recognized State, with terms tempts that the at- those plea negotiations, they as and that had been conveying information in furtherance of that effort. The determining that, record shows after Detective Cox had August 3, interviewed specifically inquired 16, defense counsel into negotiation attempts: “Q. [August August15, And all thoseoccasions August 16] would indicate and [defendant] tell you forth, would like to work out a deal and so correct?
A.Yes. you, Andhe was with cor- Q. attempting negotiate rect, or or at detectives least you convey have Attorney’s State’s Office? A.Yes. Q.And he was informedthat in fact what he told had *55 you proposing forth and the deal he was would and so Office, conveyed in Attorney’s fact be to the State’s correct?
A. Yes.
Q. basically was—you And he were here when Detective testified, proposing whereby he Young was a deal years to ten federal would be sentenced concurrent on a charge, correct? added.) (Emphasis
A. Yes.”
notes,
opinion
important
As
lead
the most
factor
July
August
in
whether defendant’s
27 and
determining
to
16 statements were
“what
plea-related
parties
is
29.
actually
the conversations
said.” See
Ill. 2d at
Here,
record is
with
that defendant
replete
testimony
to
repeatedly
explicit
evinced an obvious and
desire
by
that was understood
as
as an
negotiate
everyone,
well
con
expectation
negotiation
that
efforts would be
Attorney.
to
State’s
veyed
police
substantiate
informa
expectation by readily agreeing
that
to transmit
and the
At
messages
tion and
between defendant
State’s
negotiation effort.
torney in furtherance
of defendant’s
3,
each
held
July
August
At
the interviews
16, the
stated
August
police
witnesses
that
trying
that
was
to
a deal and
negotiate
defendant
relay
agreed
participate
process by
the officers
in the
for
Even the
ing
prosecution recognized
information
him.
argument
in its
to the
closing
these negotiation attempts
amply
The record
this case
demonstrates
that
jury.
here
the conversations
at issue
understood
parties
attempting
negotiate
that defendant
effort,
by
verbally
participate
agreed
by
initially
terms and the
specifying
acceptable
by conveying
Attorney’s
the State’s
liaison
acting as
Defendant’s
responses.
those terms and
statements
from
16 interviews flowed
during
27 and
as
mutual
subjective beliefs
bolstered
Friedman,
(requir
See
Furthermore, the August a Muddy 15 to obtain on Center Correctional prior copy would oral statement of defendant’s written person objectively that this reasonable to an demonstrate police by to believe minimum, led was, a negotiations conducting State’s with the fact, was, in Attorney through with the officers. his discussions August serving 16 did on murder warrant of a objec- expectations necessarily or its defendant’s not alter standpoint, practical the is- From tive reasonableness. negotia- necessary charge end to all not the is suance of variety reasons, and for a In instances tions. some charge may negotiations after a is or even start continue though served defendant Moreover,even filed. and warrant, both detectives Williamson with a murder going purpose that to see defendant their testified Cox day fact, admit- In Detective Cox “to interview” him. “saying [defen- August on 16 he was ted at trial that Degree basically why dant] First it’s less than tell us explain in his it [defendant] “wanted Murder” and Degree why Murder.” First it was less than words added.) (Emphasis that he showed also testified Cox defining various homicide of statutes defendant a book charges during by fact was verified the session. This lending Williamson, credence to defendant’s Detective conducting negotia- parties were still assertion that during though was served the warrant tions even circumstances, that I conclude these interview. Under continuing expectations that he was objectively negotiations pursue plea 16 were on support Overall, I the facts believe reasonable. subjective expectation of had a that defendant conclusion conducting plea negotiations 27 and and this expectation was objectively reasonable under the totality surrounding circumstances.
II In addition to differing my characterization and case, this application disagree facts in I also with opinion’s the lead interpretation application this in Hart. recent opinion court’s I strongly believe the Hart and the factual differences between instant case are striking compel of defendant’s suppression state First, ments opinion states, here. as the lead accurately “ Hart stands for the proposition ‘mere offers to ” are cooperate’ not excluded unless they accompa are ‘“ ’ ” “the nied rudiments of the negotiation process.” *57 Hart, 25-26, 219 Ill. 2d at 2d quoting 504, 214 Ill. at Friedman, quoting Here, 79 Ill. at 353. Young’s 2d Officer testimony establish that contemporaneous report negotiations defendant was to enter into attempting July at specified the 27 interview and terms acceptable time, this that case from the mere offer distinguishing of cooperation established in Hart.
Second, the lead states that Hart “held that opinion because the request defendant did not that the detective or, initiate contact or terms convey prosecutor the alternatively, specify require the terms he would in for the exchange pleading guilty, rudiments negotiation process present, thereby were not rendering (Emphasis defendant’s statements admissible.” added.) Hart, 26, Ill. 2d at 2d at 511- citing 214 Ill. absence a I agree request by 12. that While it important provides case because critical for the court’s ultimate Rule background factual 402(f) determination, necessity of a does not request of a holding constitute of this court. The absence to involve the was one factor our request prosecutor 402(f) not was not the apply. decision that Rule did It sole determinant. We did not hold that defendants must specific request plea-related make that their before discussions will be held under the inadmissible rule. The totality controlling of the circumstances is still the standard in that determination.
Applying here, that standard I note that this case presents exactly opposite factual scenario from Hart. police during Here, the testified both before and trial prosecutor, that defendant did ask them to contact the attempt conveypossible plea prosecu did terms to the concretely identify tor, and did the terms he desired. Contrary opinion’s to the lead assertion that defendant only made “veiled references of an offer” and that even (219 26), the existence of an offer was unclear Ill. 2d at express record establishes that defendant made an negotiate plea bargain, going offer to so far on specify verbally charges sentencing as to willing accept. conditions he was closing argument Even the State’s in the first trial specifically attempts during relied on defendant’s negotiate whereby interviews to a deal his release prison from for the homicide would coincide with his forgery again release on his conviction. These facts distinguish this Hart, case from where the court relied prosecutor’s on the impl[y] “state[ ] failure to ever or ‘plea negotiations’ defendant offered to enter into or ‘plead 402(f) guilty,’ which is what Rule is intended to prohibit.” Hart, 214 Ill. 2d at Here, 512. *58 part acknowledged
statements, attempts made as of his negotiate plea, against closingargu a wereused him in purpose ments in contravention of the at the heart of 402(f). Rule
Thus,
Hart,
unlike
where this court relied on the
any specific
absence of
evidence that the defendant actu-
ally attempted
negotiate
plea,
replete
this case is
readily
with such evidence. This critical factual difference
Hart. here
testimony
this case from
distinguishes
of the negotiation
“the rudiments
undeniably established
26),
(Hart,
Ill accepts hypothetically the lead Although opinion some offer conveyed assertion that he “defendant’s 16, 1994,” and bargain (219 Ill. 2d at step analysis the next of its proceeds interpretation this time its 26), again, it then falters Friedman. with the lead begin I of application of Friedman. opinion’s interpretation
A
Friedman held
“that
concludes that
opinion
The lead
defendant’s
statement
for the
purpose
other possible
no
(219 Ill. 2d at
negotiations]”
from
[apart
existed
by the text of
unsupported
is
26), but this assertion
the possible
Friedman
is
silent on
entirely
opinion.
statement,
stating only that
for the defendant’s
purposes
***
reasonableness
“question
did not
the court
the circumstances.”
under
expectations
provides
Friedman,
opinion
352-53. The
79 Ill. 2d at
conclusion, and there
for that
no
absolutely
explanation
The actual
now.
divining
for
one
definitive basis
is no
failure to
parties’
as the
simple
be as
could
explanation
of the defendant’s
reasonableness
objective
argue
reason,
absence
of the true
Regardless
expectations.
underly
“possible purposes”
examination
properly
cannot
be
statement
the defendant’s
ing
the Friedman
court
into the conclusion
extrapolated
solely for
it was made
before
held
the bare assertion
Ill. 2d at
See 219
plea negotiations.
purpose
express
*59
makes it
“holding”
possible
26.
that presumptive
While
Friedman
distinguish
conceptu-
for the lead
opinion
case, it
ally
pure speculation
from this
is based on
differentiate the two cases.
legitimately
cannot
be used to
by
The lead
error
opinion
interpretive
makes another
that Friedman “considered
advancing
proposition
[sic],
admissibility
plea
nothing
of a bare
offer
(219
26), contrasting
more”
Ill. 2d at
it with the more
robust
made
defendant here.
examina
My
statements
tion of Friedman reveals it does not limit the exclusion
402(f)
ary
Indeed,
effect of Rule
to bare
offers.
plea
proposition
contrary
would be
to common sense and to
of
the rule
language
both
and Friedman. Application
of the rule is not restricted to bare
offers. The rule
plea
precludes
admission of both
“plea discussion[s]”
“any resulting agreement, plea, or
Ill. 2d
judgment.” 177
402(f).
R.
True to the breadth of the rule’s
Fried
scope,
man
broadly
even
refers to the defendant’s bare offer as
added.)
“a plea-related discussion.”
(Emphasis
Fried
402(f)
man,
As we
explained
of our
purpose
“[t]he
rule is to encourage
negotiated
disposition of criminal
through
cases
elimination of the risk that
the accused
enter plea discussion at his peril.
To ac
[Citations.]
complish
purpose,
this
the boundaries of our rule must
be
necessity
delineated in relation to the reasonable
expectations of the accused at the time the statement
Friedman,
was made.”
“A statement made
anas
offer to enter
is
negotiation
indistinguishable
from a statement made at an advanced
stage of the negotiation process in terms of its impact
related to either
upon
jury.
Statements
stage
this
process are equally devastating
in the trial of the ac
added.) Friedman,
cused.” (Emphasis
While this recitation of the record is the lead suffers from opinion’s subsequent conclusion ignores First, it additional fact that two fatal flaws. the already orally given police had the the same defendant August writing. those the As terms as contained police acknowledged, gave the the witness understanding the mutual earlier oral statement with conveyed prosecutor part it that would be to the as depiction plea negotiations. accuracy of this of the by parties’ understanding amply demonstrated the is police August return of the prosecutor on 15 at the behest of the get writing. Second, the statement overlooking ongoing nature discussions in police’s voluntary this as case as well as the vital role messenger focusing plans and instead and motives Attorney, opinion State’s the lead by effectively making errs the subjective intentions police and the State’s Attorney key determinants of objective reasonableness expectations. of defendant’s Nothing precedent supports in our that rationale. approach proper analysis
That turns on its head again leads to a direct conflict with Friedman. In *61 only Friedman, not the were inadmissible statements entirely 352), unsolicited 79 Ill. 2d at (Friedman, they person but were tomade a the defendant knew was investigator an on the case and whom defendant had spoken previously (Fried aon of number occasions 350). man, 79 Ill. 2d at The same can be in said the explicitly instant case. court has This also declared that 402(f) key delineating the boundaries of Rule is expectations “the reasonable of the accused at the time statement was made.” Ill. 2d 351. Friedman, manifestly purely Therefore, it is erroneous to use the prosecutor subjective intentions of and the determine the of objective reasonableness expectations. approach adopted Nonetheless, that is the opinion. in the lead
B
dispute
opinion’s
I also
the lead
broad references to
“exculpatory”
designed
defendant’s statements
as
extent,
Ill.
29. To
I agree
“exonerate” him. 219
2d at
that
portion
of that
special
with the
concurrence’s discussion
(McMorrow, J.,
opinion.
of
Rule provides, plea plea guilty, “If a discussion does not result in a *** any resulting nor agree neither the discussion ment, judgment against or be admissible plea, shall added.) any proceeding.” (Emphasis criminal 402(f). 2d R. 134 Ill. a in the of the rule is there express language
Nowhere must be requirement that to be inadmissible statements Conversely, nowhere the rule is there inculpatory. plea-related that state- “purely exculpatory” limitation may scope. ments be deemed outside its 402(f), plain of Rule statements language Under are constituting discussion” barred any part “plea to this resort majority’s from admission. to bolster its distinction “inculpatory/exculpatory” properly that defendant’s statements were conclusion language not either the supported by admitted is rule or Friedman. the rule’s broad term Friedman,
In this court used analysis correctly ap discussion” in its “plea-related issue in case. Fried it to minimal statements at plied statements, man, Ill. 2d at 352-53. In those offense charged admit guilt defendant did not he had committed or evidence that provide even held to be inadmissible crime, the statements were yet 402(f). See reach of Rule purposefully under broad Friedman, at 351 (explaining 79 Ill. 2d generally *62 of this rule was our promulgation in the “[ijmplicit process the negotiation of of significance the recognition ap- and our justice [citation] of to the administration devastating of preciation the introduction effect of [cita- plea-related the in the accused statements trial negoti- encourage purpose tion]. rule the The of our is through disposition elimination of of criminal cases ated at his discussion that the accused enter the risk making peril”). a distinction I cannot find basis for simply admissibility on based the of statements between exculpatory inculpatory of their contents nature the or 402(f) support Friedman, or nor can I either Rule under application of that distinction here.
C analysis my differing legal Fried- In addition to disagree opinion’s application of man, I the lead with engage Thus, here. I in a brief that case to the facts comparative analysis aspects cases. of factual of the two necessarily my prior My brief review will be because myriad has noted a of similarities discussion between circumstances this facts Friedman and case. While surrounding each case must be evaluated to determine plea-related, I was whether discussion assert in this case are far more to those in Fried- facts similar man, where the defendant’s statements were held to be 402(f), Hart, Rule inadmissible under than where they did defendant’s statements were admitted because negotia- the bare not constitute even rudiments process. tion Friedman, state
In this court found the defendant’s knowledge despite ments inadmissible the defendant’s speaking investigator he was to an rather than the Attorney State’s when made statements. knowledge identity of the listener’s investiga initially he had called the established because message requesting tor himself left a return call ‘very urgent’ Friedman, at 350. “a matter.” Ill. 2d emphasizing knowledge of the Further the defendant’s identity, previ- investigator’s the same individual had *63 ously approximately interviewed the defendant three times earlier.
Similarly, in
case
this
the extensive
of
series
inter-
police
views and other contacts between the
defen-
and
undeniably
knowledge
dant
establish defendant’s
that he
dealing
Attorney
was not
with the State’s
when he at-
tempted
negotiate.
knowledge,
to
This
however, does not
impediment
finding
constitute an
to
defendant’s state-
plea attempts any
to be
ments
in
more than it did Fried-
analogous.
man, where the circumstances were
investigator
Moreover,the
in Friedman informed the
request
he
defendant
had “no control over” defendant’s
proceeded
identify
appropriate
and
to
even
contact
person for
Friedman,
defendant.
Thus,
Under these I as con- only subjectively clude that not did believe he engaged negotiations, but, Friedman, as in light objectively that those beliefs were reasonable in Attorney. the conduct of the State’s The they involved in the testified officers interviews attempting believed that defendant was conduct negotiations. prosecutor appears in the first trial repeatedly have held a similar belief because informed jury negotiation attempts. of defendant’s Viewed objectively, agreement the combination of the officer’s Attorney’s act as a communication conduit and State’s objective use of that conduit indicates the reasonableness person of defendant’s beliefs. A reasonable in defendant’s position would not have known that the officers who voluntarily serving have been as his link to the State’s Attorney behaving disingenuously actually were had finalizing plea arrangement. no intention of Although may the officers’ conduct have been prompted by hope winning defendant’s confidence *64 thereby garnering and strategy information, additional 402(f) by
turns the defensive shield created Rule
caught
into an offensive sword for the State. Defendants
strategic
objectively
in such a
twist are not
unreasonable
unwittingly making potentially damaging
for
statements
during
negotiation attempts.
injustice
their
of such
investigative strategy
an
is even more
where,
manifest
as
parties
here,
fully
all the
involved are
aware of the
subjective
Upholding
defendant’s
beliefs.
the use of this
type
investigatory
of
tactic under those circumstances
purpose underlying
402(f), namely,
violates the
Rule
“to
encourage
negotiated disposition
of criminal cases
through elimination
the risk that the accused enter
plea
added.)
peril” (Emphasis
discussion at his
Fried
man,
By failing recognize that the facts of this case are substantially more similar to those in Friedman than to opinion special those Hart, the lead and the concur- path rence have started this court down a destined to protections undermine the fundamental intended Rule 402(f) upheld in Friedman. If this court wishes to follow the lead of our federal courts and limit the reach expressly by changing rule, of our language it should do so by unjustifiably of the rule rather than narrow- ing application existing language. of the I cannot silently approach. countenance the latter
IV reviewing appellate counsel’s record, I find After sup- only appeal court’s refusal to the trial decision to inexplicable. August press In relevant 15 statement posttrial part, on the al- motion was based defendant’s they legation inadmissible because his statements were plea negotiations, during course of made were soundly supports argument. testimony ap- appellate original failure to suppress counsel’s Defendant’s peal motion to the denial of defendant’s may August have been 16 statements 27 and reading overly predicated defendant’s narrow on an inadequate posttrial examina- motion, with an combined part, In relevant of the record. the remainder tion of argued “[t]hat posttrial the court motion improperly evidence of the State to introduce allowed Spring- and the the defendant between discussions plea specifically, Department, a note obtained and, field Police whereby August set forth the defendant dispose accept plea agreement of this he would what action.” cause of challenging limiting the admis- itself to than
Rather ap- appellant sibility counsel note, as interpreted both pears it, motion cites to have 15 written and the discussions” “evidence Notably, language refers to in the motion *65 statement. conjunc- plural, “discussions,” and uses in the (“and”) “specifi- disjunctive before than the rather tive reading listing cally” the motion A careful the note. pretrial challenged defendant’s the denial of it indicates plea- suppress were statements because the motion appears Original appellant however, counsel, related. speci- August solely 15 note that on the have focused appeal neglecting introduction motion, in the fied appellate Regardless disputed statements. of the other inexplicable both intent, this omission is actual counsel’s thorough record, unjustified of the review on a based
83 objec- indicating performance fell below an that counsel’s tive standard of reasonableness.
Cumulatively, August 15, 27, strongest evidence 16 statements constituted against presented In addi defendant at trial. State damaging appellate tion, July counsel should have known the again 16 statements would come 27 and preclusive could avoid the at a new trial unless defendant heavy estoppel by overcoming the effects of collateral (see showing special burden of either circumstances (1994)) People Enis, 367, a v. 163 Ill. 2d or violation (see People Gaines, 2d of fundamental fairness v. 105 Ill. (1984)). 79, 91
Although possesses defense counsel broad latitude to (see appropriate legal strategy People choose in each case (2002)), Fuller, 308, v. legitimate 205 Ill. 2d I can conceiveof no only strategic advantage appealing one of damaging, given statements, three inconsistent the sur rounding Thus, circumstances. I conclude the conduct of original appellate defendant’s objectively counsel fell an below professional perfor reasonable standard of mance.
V
Having determined defendant has met the burden of
overcoming
prong
test,
the first
I turn
Strickland
prong, requiring showing prejudice
next to
second
(Strickland,
performance
due to counsel’s deficient
2064;Evans,
U.S.at
Taken defendant’s statements first constituted substantial factor degree his convictionfor they primary Indeed, murder. were the evidence linking him to the death Dickerman. The remain- of Dr. ing provides a circumstantial evidence alone far more
tenuous basis for convicting defendant. the Recognizing statements, importance defendant’s the heavily State emphasized them to the trial. jury during
Moreover, conflicts between the statements undoubt- edly prejudiced defendant’s case by undermining his cred- ibility as well as his trial claim that he was not involved in any in Dr. way Dickerman’s death. The State meticu- lously every used opportunity point out to the the jury nature shifting of defendant’s account over time and contended expressly its during closing argument both the evidence and common sense established that defendant was a liar and a schemer. In its closing argu- ment, pointed State out how over the course of the interviews defendant “fashioned a little bit more of a story, every and time he fashioned styled and drafted and and tailored a new it story, was at odds at [sic] what he
had said previously.” Later, explicitly State called liar, defendant a sprinkling details his various closing statements into its for argument support. Finally, in its argument, rebuttal the State raised the conflicts in statements asking jury whether it was “reasonable to he the first opportunity] [at and then lie again [sic], and then to in ’94 years two later after ‘Oh, I already says, never had anything to do with the forgeries’, to lie about that and plead guilty, then then in 1994 to he again again?” Clearly, to he State used the variations in defendant’s statements to undermine his credibility a case based exclusively on circumstantial evidence and inferences.
These factors are sufficient to estabhsh that defen- dant was prejudiced by admission 27 and statements, August 16 satisfying prong second of the Strickland test. found both Having prongs Strick- met, land test are I conclude defendant’s to effec- right tive assistance of counsel was violated in his first appeal and would reverse his conviction and remand the cause for a new trial.
VI *67 cause, it necessary I would remand this is Because con retrial invokes double jeopardy consider whether cerns. The double clause of the fifth amend jeopardy cor ment to the United States Constitution and the been responding clause in the Illinois Constitution have People Moss, construed in same manner. v. 206 Ill. 2d (2003). 503, protect 535 Both clauses criminal defendants against multiple prosecutions for the same offense. Jones Thomas, 322, 331, v. 491 U.S. 105 L. Ed. 2d 109 (1989). 2522, S. Ct. 2525 In examining whether there was sufficient evidence to a conviction in this support case, and therefore avoid subjecting defendant double remand, jeopardy on court may this consider all trial, evidence submitted at the if prior even it was Olivera, improperly People 382, admitted. v. 164 Ill. 2d (1995). 393 Circumstantial evidence must be reviewed under the same standard as direct evidence for this (2002). purpose. People Pollock, v. 202 Ill. 2d 217 Viewing light evidence in the most favorable to the prosecution to determine whether rational trier of fact could have found the essential elements of the beyond (see, crimes a reasonable doubt e.g., v. People Collins, 106 Ill. I (1985)), 2d 261 would hold the in evidence this case was sufficient. The victim discovered defendant had forged some of checks his and confronted defendant with this information in his shortly home before his disappearance. of the Drops victim’s blood home, were found in the and defendant put admitted to ting body the trunk of dispos the victim’s car and ing Missouri, of it it where was found. While defendant
did not admit to actually killing Dickerman, Dr. there was sufficient evidence for a reasonable jury to find criminally responsible Thus, for his death. double jeopardy considerations are not implicated, and permissible. retrial is v. People Fornear, See 176 Ill. 2d (1997). 523, 535
CONCLUSION to effective sum, right In I would hold defendant’s appel- original assistance of counsel was violated the denial of inexplicable appeal counsel’s failure late potentially all three of his suppress defendant’s motion to as of inadmissible damaging part statements the admission of Counsel’s failure negotiations. appeal fell below statements defendant’s performance. objectively an reasonable standard Moreover, of the statements admission improper seriously case and undermined prejudiced I reason, For this would reliability of his conviction. the cause for defendant’s conviction remand reverse case, proceedings. disposition Under this further in the appeal raised on and resolved arguments the other *68 Accord- would not need to be addressed. opinion lead part. dissent part I concur in ingly, respectfully (No. 10207 7 al., et v. Appellees, MARGARET O’BRIEN JOAN et Illinois, of State of WHITE, Secretary JESSE al., Appellants.
Opinion March 2006. filed