People v. Jones

Docket No. 90282.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ROBERT D. JONES, Appellant.

Opinion filed January 20, 2006.

JUSTICE FITZGERALD delivered the judgment of the court,

with opinion.

Chief Justice Thomas concurred in the judgment and opinion.

Justice McMorrow, specially concurred, joined by Justice

Freeman.

Justice Kilbride concurred in part and dissented in part, with

opinion.

Justices Garman and Karmeier took no part in the decision.

OPINION

This appeal arises from the second trial of defendant, Robert D.

Jones, for the murder of Dr. Henry Dickerman, Jr. Defendant was

charged and later found guilty of first degree murder (720 ILCS

5/9B1 (West 1996)) following a jury trial in 1996 in the circuit court

of Sangamon County. Defendant appealed, and the appellate court

remanded for a new trial. People v. Jones, 294 Ill. App. 3d 1125

(1998) (unpublished order under Supreme Court Rule 23). On

remand, following a second jury trial, defendant was again found

guilty of first degree murder. Defendant appealed, and the appellate

court affirmed, with one justice dissenting. 315 Ill. App. 3d 500.

Defendant appealed to this court, arguing that (1) the trial court

improperly ruled on a motion for substitution of judge; (2) the trial

court failed to bar statements made during the course of plea

negotiations; (3) the trial court erred by refusing to instruct the jury

on involuntary manslaughter; (4) the State failed to prove a material

element of the crimeBnamely, venue; (5) the trial court improperly

allowed the State to amend the charges against him; and (6) Apprendi

v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348

(2000), required that his conviction be overturned.

On September 20, 2001, we filed an opinion reversing the trial

court and the appellate court with respect to the first issue; we

remanded to the trial court for a hearing on defendant=s motion for

substitution of judge for cause. People v. Jones, 197 Ill. 2d 346

(2001). We did not reach the other issues raised in defendant=s

appeal. We retained jurisdiction and directed that the trial court report

its findings, after hearing defendant=s substitution motion, to the clerk

of this court within 90 days of the issuance of the mandate. We have

been advised that the trial court has conducted a hearing on

defendant=s motion, has concluded that no cause exists to support a

substitution of judge, and has denied defendant=s motion. We granted

defendant leave to supplement his brief on this issue. In his

supplemental brief, defendant maintains that cause exists to support

his motion for substitution of judge. We now address defendant=s

arguments on appeal.

BACKGROUND

Defendant was first convicted of the first degree murder of Dr.

Dickerman after a jury trial in August 1996 and was sentenced to 85

years= imprisonment. On appeal, defendant argued that the trial court

erroneously admitted into evidence a written statement he made to

the police on August 15, 1994. Particularly, on August 15, 1994,

police detectives visited with defendant while he was incarcerated.

Defendant, as directed by the detectives, hand drafted a two-page

statement providing the terms of the deal he would be willing to

accept in order to plead guilty. The detectives informed defendant

that the statement was for the State=s Attorney. This statement was

read into evidence at trial. The appellate court agreed that the

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statement contained the Arudiments of the negotiation process@ and,

therefore, was an inadmissible plea-related statement under Rule

402(f) (177 Ill. 2d R. 402(f)). The appellate court reversed

defendant=s conviction and remanded for a new trial. People v. Jones,

294 Ill. App. 3d 1125 (1998) (unpublished order under Supreme

Court Rule 23).

On remand, prior to the start of the new trial, defendant filed a

motion for automatic substitution of judge pursuant to section

114B5(a) of the Code of Criminal Procedure of 1963 (725 ILCS

5/114B5(a) (West 1998)). The trial judge denied the motion as

untimely. Subsequently, defendant filed a motion for substitution of

judge for cause pursuant to section 114B5(d) of the Code (725 ILCS

5/114B5(d) (West 1998)). Defendant argued that Judge Zappa, the

original trial judge and trial judge on remand, was prejudiced against

him, and that this prejudice was evident in his pretrial rulings during

the first trial and his comments during sentencing. Judge Zappa heard

the motion, and denied the motion as untimely.

Defendant then filed a motion to suppress statements he made to

the police on July 27, 1994, and August 16, 1994. The trial judge

denied the motion on the basis that the statements were admitted

against defendant in the first trial and defendant failed to challenge

the admissibility of those statements on appeal. He held that

defendant=s failure to challenge the statements precluded a later

challenge on remand. The matter proceeded to trial a second time,

and the record reveals the following.

In June 1992, defendant approached Dr. Dickerman, a single 85-

year-old man and retired surgeon, with a proposal to paint his house

and do various minor repairs. Dr. Dickerman agreed, hired defendant,

and paid a sum up front with a remainder to be paid at the completion

of the work. Ultimately, the scope of defendant=s duties expanded,

and he worked as a handyman for Dr. Dickerman doing various

repair work as it was needed.

At approximately the same time, in July 1992, for a period of six

weeks, defendant additionally worked for Tri-State Foods. When he

began as an employee for Tri-State, defendant informed the manager

that he would do additional work if the manager advanced him

money to buy the necessary supplies to complete the job. The

manager agreed and advanced defendant money. Defendant failed to

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repay the money by the end of July, as agreed, and he was contacted

by an attorney. On August 4, defendant delivered part of the money

he owed, $850, in cash to the manager with a promise to repay the

remainder shortly.

On August 11, 1992, Dr. Dickerman arrived at the Department of

Rehabilitation Services, where he worked as a consultant reviewing

federal disability claims. Individuals in the office testified that Dr.

Dickerman seemed himself and appeared in good health. Dr.

Dickerman then met several friends for lunch, and each of those who

attended lunch testified that he was in good spirits and appeared to be

in good health. The lunch ended at 1:15 p.m.

Charles Rutschke, a United States Postal Service worker, testified

that on August 11 he delivered the mail to Dr. Dickerman=s house at

approximately 4 p.m. Rutschke recalled that the house had a front-

door mail slot. While delivering mail on August 11, he was greeted

halfway up Dr. Dickerman=s walkway by defendant. Rutschke stated

that defendant appeared anxious. Defendant asked whether there was

any mail for Dr. Dickerman. Rutschke testified that he refused to give

defendant the mail and instead placed the mail into the front-door

mail slot.

On August 12, 1992, Dr. Dickerman failed to appear at his

weekly Wednesday evening bridge game. Concerned friends went to

his home to check on him. Upon their initial search of the home

everything appeared normal, except that Dr. Dickerman=s 1988 Buick

Century was not parked in the garage. The police released a

description of Dr. Dickerman and his car.

Soon afterwards the police discovered that several of Dr.

Dickerman=s checks were missing from his checkbook, and that

defendant had deposited three checks on August 4, 7, and 8 totaling

$5,025 against Dr. Dickerman=s account. The police attempted to

contact defendant at the address and the telephone number listed on

the back of the cashed checks. Detectives left messages on the

answering machine at the listed number and later learned that the

number was registered to defendant=s mother-in-law. Defendant was

informed by his mother-in-law that the police were looking for him,

and he immediately left the state. Defendant=s wife eventually

delivered a handwritten note from defendant addressed to the deputy

chief of investigations in Sangamon County. The note stated:

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AI, Robert Jones, would like to make this statement to

assist you in effort to locate Mr. Dickerman. The last time I

seen him was on Tuesday afternoon, He left his house at

about 4:00 p.m. and said he was going to a dinner with his

friends. I did not leave his house until around 4:30 p.m.

because I was finishing an interior painting job.

Any checks I received from Mr. Dickerman were written

from him to me. I have no idea about the numbers of these

checks, I did not pay attention to that. I can tell you that I had

nothing to do with his disappearance.

I have had some trouble in the past, but I have tried to put

my life on the right track and anyone who knows me as a

person knows I could never harm a fly.

***

I am not trying to avoid you because I miss my family,

but I=ve been beat up by the system before. Believe me, I will

assist you in any way I can to help bring an end of this

nightmare that is happening to me all over again.

I hope Mr. Dickerman comes home soon for all of our

sakes.

Thank you, Robbie Jones.@

A crime scene investigator with the Illinois State Police testified

that on September 1, 1992, while Dr. Dickerman was still Amissing,@

he searched his house. The crime scene investigator discovered

bloodspatters on the bathroom wall, window sill, and rug. He

returned on September 2, 1992, and discovered additional

bloodspatters he had previously missed. Investigators could not

determine when the blood was deposited and could only testify that

the blood on the rug matched Dr. Dickerman=s DNA. Stains found on

the wall and window sill were insufficient for comparison.

Tina Clark testified that for seven years she cleaned Dr.

Dickerman=s house every Thursday. She testified that she last cleaned

Dr. Dickerman=s entire house August 6, 1992. She stated that she

washed his bathroom tub and sink, washed the walls around the

bathtub, and scrubbed the floors in the upstairs bathroom. On August

6, 1992, she did not notice any blood on the walls or the rug.

On September 5, 1992, hikers found Dr. Dickerman=s partially

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decomposed body at the bottom of a cliff in Missouri. His car was

later located in Lambert-St. Louis International Airport=s long-term

parking lot. A forensic pathologist determined that the cause of death

was homicide.

Defendant returned to Springfield, Illinois, on October 5, 1992,

and was arrested. On October 6, Frank Wright, an agent with the

Federal Bureau of Investigation (FBI), and Springfield police

detective Tim Young interviewed defendant, with his attorney

present, about his involvement in Dr. Dickerman=s disappearance. 1

Defendant explained that he last saw Dr. Dickerman on August 11, at

2 p.m., when they watched the Chicago Cubs baseball game on

television. He said the doctor was dressed in a dinner jacket and

slacks and mentioned that he had dinner plans with friends. After Dr.

Dickerman left, defendant said, he finished painting the dining room

at 4:30 p.m., locked up the house and left. He spent the remainder of

the evening with his wife, three daughters, and mother-in-law. He

further said that he spent most of the next day in Peoria, Illinois, at a

bar and gambling on a river boat casino. He said that, after gambling,

he returned to Springfield at approximately 3:30 p.m., changed into

his work clothes at a friend=s home to conceal the fact of his gambling

from his wife, and returned home for the evening. Defendant said he

fled to Alabama on August 14 after receiving the answering machine

messages from the police concerning cashed checks. Defendant stated

that he feared the police would learn about his parole violation for an

earlier Indiana offense. Agent Wright and Detective Young

additionally questioned defendant about paintings and foreign gold

coins missing from the doctor=s home. Defendant stated that Dr.

Dickerman gave him the paintings, and that he subsequently

Apawned@ them in an antique shop. He also said that Dr. Dickerman

gave him the coins for his children, but he did not recall what he did

1

The Springfield division of the FBI initially participated in the

investigation at the request of the Springfield police department because

investigators initially believed that Dr. Dickerman=s disappearance was the

result of a kidnapping.

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with the coins. Ultimately, defendant was charged and pleaded guilty

to forgery and was imprisoned.

Defendant spoke a second time with the agent for the FBI and

Detective Young several days later and repeated his same story. He

reiterated that he last saw Dr. Dickerman when the doctor left the

house to meet friends for dinner.

On July 12, 1993, at Graham Correctional Center, detectives

spoke again with defendant to confront him about the accuracy of his

earlier statement. Defendant informed the detectives that Aeighty-

percent of his earlier statement was true.@

One year later, on July 27, 1994, pursuant to defendant=s request,

he again met with Springfield police detectives. At the time,

defendant was incarcerated for his forgery conviction at Big Muddy

Correctional Center. Defendant requested an audiotaped interview,

and pursuant to his request Springfield detectives Young and Doug

Williamson tape-recorded the interview. Detectives, also pursuant to

defendant=s request, brought a note from the State=s Attorney

describing the punishments for involuntary manslaughter and first

degree murder. When taping began, detectives advised defendant of

his Miranda rights and noted that the meeting occurred at defendant=s

request to discuss his actions on August 12, the day after Dr.

Dickerman disappeared. When asked whether his October 1992

statement to the police regarding his August 12 conduct was accurate,

defendant instructed the detectives to turn off the tape recorders.

Thereafter, for a 55-minute period while the tape recorders remained

off, defendant admitted that he had fabricated his alibi in his October

1992 statement. Defendant repeatedly asked the detectives to tell him

what evidence they had in the case. Defendant asked whether the

detectives thought that Dr. Dickerman was murdered, defendant

asked about the autopsy report, and despite never being told by the

detectives about blood found in the house, defendant asked about

blood found in Dr. Dickerman=s bathroom. When the detectives told

defendant that they were not going to give him any information, he

became frustrated, eventually blurting out, AI know you don=t have

the murder weapon.@

When recording resumed, defendant provided a new statement

lasting approximately 17 minutes. Defendant informed the detectives

that Dr. Dickerman discovered his forgeries earlier in the week of

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August 11, 1992. Defendant said that Dr. Dickerman agreed not to

press charges if defendant would perform additional work around the

house to pay off his debt. When defendant arrived at Dr. Dickerman=s

house on August 11, 1992, he found Dr. Dickerman lying on the floor

of his living room, unconscious, with a spot of blood on his head. He

said that his attempts to revive Dr. Dickerman failed. Defendant told

detectives that he was afraid he would be implicated in Dr.

Dickerman=s death because he had forged checks, so he fled the

house and returned the next day to dispose of the body. The next day,

he gathered Dr. Dickerman=s clothes, medicine, glasses, and

checkbook, to make it look like Dr. Dickerman left for a trip, placed

Dr. Dickerman in the trunk of his car, drove the car to a deserted area

near St. Louis, and threw the body over an embankment. He denied

killing Dr. Dickerman.

Detectives Young and Williamson met again with defendant on

August 3, 1994, at the Franklin County jail in Benton, Illinois, in

order to provide defendant with a transcribed copy of their taped

discussion occurring on July 27, 1994. Defendant simultaneously

listened to the tape and read the transcript. Afterwards defendant

signed the transcript, indicating that the transcript was a true and

correct copy of his discussion on July 27, 1994. The transcribed copy

is several pages in length and contains no reference to any inquiry

regarding a bargain for his cooperation. Detectives testified that on

August 3, 1994, after signing the transcript, defendant suggested he

would be willing to plead guilty to a lesser offense to reduce his

sentence. The detectives informed defendant that they were not

authorized to negotiate with defendant, but they indicated that they

would take his message to the State=s Attorney.

On August 16, 1994, while defendant was still incarcerated at Big

Muddy Correctional Center, Detectives Williamson and Cox served

defendant with an arrest warrant for first degree murder. Defendant

was read his Miranda rights and indicated that he understood those

rights. Detectives also provided defendant a copy of the Illinois

Criminal Code of 1961, containing the statutory definition of first

degree murder. The detectives informed defendant that if he believed

his actions constituted less than first degree murder it would

Abehoove@ him to speak to them.

Defendant informed the detectives that he wished to clarify his

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earlier statement. He admitted that his prior statements to the police

were false and made a new statement. Defendant told the detectives

that he was painting the interior of Dr. Dickerman=s house on August

11, 1992, when the mailman arrived. Dr. Dickerman retrieved and

opened his mail and discovered that defendant had forged checks. Dr.

Dickerman became excited and began screaming at defendant, when

he suddenly grabbed his chest, turned away, fell forward, struck his

head on the fireplace, then fell to the floor and struck his head a

second time on a cloth-covered, brick doorstop. Defendant placed Dr.

Dickerman=s body in a reclining chair, unlocked the front door, and

fled the house. Defendant stated that he had hoped someone would

discover the doctor, but he returned early the next morning and

discovered the doctor untouched. Defendant decided to dispose of the

body and, therefore, gathered some of Dr. Dickerman=s personal

effects, including his checkbook, clothing, and medicine. Defendant

placed the body in the trunk of Dr. Dickerman=s car, drove the car

past St. Louis where he found a chained-off road, and threw the body

over a cliff. Defendant then drove the car to Lambert-St. Louis

International Airport, wiped his fingerprints from the interior of the

car, and left the car in long-term parking.

Detectives testified that, overall, during their discussions with

defendant he was controlling and continually attempting to elicit

information from them about the case and their impressions of his

involvement in the crime. He often made references to facts about the

crime that were never mentioned by the detectivesBand refused to tell

them how he learned of the information.

Defendant testified in his defense and denied any involvement in

Dr. Dickerman=s death or the disposal of his body. He testified that on

August 11, 1992, he finished painting the interior of Dr. Dickerman=s

house and received final payment for his work. He stated that at 4

p.m., Dr. Dickerman left the house to meet his friends, and defendant

left shortly thereafter to pick up his wife from work. He told the jury

that he spent the remainder of the evening with his wife and children.

He testified that the next morning, August 12, 1992, he woke up and

spent the morning and afternoon on the Peoria river boat casino. He

then spent the evening with his wife and children. Defendant

continued that on August 13, 1992, he started work on a

condominium. He spent the day painting and eventually picked up his

wife and children and took them to a motel for a promised Anight

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out.@

Defendant stated that he only spoke to the detectives on July 27

because they threatened to arrest his wife and take away their

children. Defendant said the detectives threatened him and gave him

the details for his statement, such as where the body was found.

Defendant testified that he had Ano choice@ but to admit to disposing

of the body to avoid first degree murder charges.

A jury convicted defendant of first degree murder, and the trial

court sentenced defendant to 85 years= imprisonment. Defendant

appealed and the appellate court affirmed his conviction. 315 Ill.

App. 3d 500.

ANALYSIS

On appeal, the defendant argues that (1) the trial court improperly

ruled on a motion for substitution of judge; (2) the trial court erred

when it failed to bar defendant=s statements made on July 27 and

August 16; (3) the trial court erred by refusing to instruct the jury on

involuntary manslaughter; (4) the State failed to prove a material

element of the crimeBvenue; (5) the trial court improperly allowed

the State to amend the charges against him; and (6) his sentence

violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,

120 S. Ct. 2348 (2000).

I. Motion for Substitution of Judge

On November 15, 2001, pursuant to this court=s order the trial

court conducted a hearing on defendant=s motion for substitution of

judge (725 ILCS 5/114B5(d) (West 1998)). On remand, the trial court

concluded that there was no evidence of prejudice and denied

defendant=s motion.

In his supplemental brief, defendant continues to allege that the

trial judge was prejudiced against him. Defendant complains that this

prejudice is evident from the following conduct: the trial judge failed

to force the State=s compliance with discovery orders, and he

negatively commented upon defendant=s assertions of prosecutorial

misconduct during sentencing, telling defendant he was Aoutraged@ at

defendant=s accusations against the State=s Attorney and the police.

We detail these allegations in our opinion remanding this matter to

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the trial court for a hearing. See Jones, 197 Ill. 2d at 353. Defendant=s

assertions in his supplemental brief to this court are identical to those

argued before the trial court on remand.

In order to prevail, defendant must demonstrate that there are

facts and circumstances which indicate that the trial judge was

prejudiced. People ex rel. Baricevic v. Wharton, 136 Ill. 2d 423, 439

(1990); see also People v. Mercado, 244 Ill. App. 3d 1040, 1045-46

(1993). Prejudice is defined as A >animosity, hostility, ill will, or

distrust towards this defendant.= @ People v. Patterson, 192 Ill. 2d 93,

131 (2000), quoting People v. Vance, 76 Ill. 2d 171, 181 (1979); see

also Mercado, 244 Ill. App. 3d at 1047, quoting Vance, 76 Ill. 2d at

181. A movant bears the burden of establishing actual prejudice, not

just the possibility of prejudice. Patterson, 192 Ill. 2d at 131; see

Mercado, 244 Ill. App. 3d at 1045. A reviewing court will not disturb

a trial court=s determination absent a finding against the manifest

weight of the evidence. See Mercado, 244 Ill. App. 3d at 1047.

Here, the trial court on remand noted that Adefendant has failed to

assert facts or instances during the second trial which evidence either

prejudice or the denial of a fair trial.@ Further, the trial court

determined that Judge Zappa=s discovery rulings did not evince

prejudice against the State; rather, Judge Zappa held several pretrial

hearings and in many instances forced the State to comply with

outstanding discovery orders. Last, the trial court held that while

Judge Zappa=s comments during sentencing were Aintemperate,@ they

did not amount to evidence establishing the formation of a fixed

anticipatory judgment. Likewise, we find that defendant offers no

facts or circumstances to find that Judge Zappa harbored animus

toward him or his counsel or was less than evenhanded at the

subsequent trial. We find that the trial court=s order on remand is not

against the manifest weight of the evidence.

II. The July 27 and August 16 Statements

Defendant maintains that his statements made in 1994, on July 27

and August 16, were plea-related and inadmissible at trial. Defendant

acknowledges that he did not challenge the admissibility of these

statements in his initial appeal, but he argues that the statements

should have been barred on retrial and the trial court erred when it

refused to consider his motion to suppress. We disagree. Collateral

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estoppel bars the relitigation of an unappealed order absent special

circumstances. The present case contains no special circumstances

warranting relitigation of the issue.

In People v. Enis, 163 Ill. 2d 367, 386 (1994), this court held that

where Aa defendant=s conviction has been reversed for trial error, and

the cause is remanded for a new trial, the doctrine of collateral

estoppel bars the relitigation of a pretrial ruling, such as a motion to

suppress, unless the defendant offers additional evidence or there are

other special circumstances.@ In Enis, the defendant was convicted of

murder and sentenced to death for that conviction. The defendant

challenged the scope of the State=s cross-examination of him, and we

reversed and remanded for a new trial based on that error. In his first

appeal, the defendant did not challenge the trial court=s denial of his

motions to quash his arrest and suppress evidence. At his second trial,

the defendant renewed his motions to quash and suppress. The trial

court refused to reconsider its rulings from the first trial, and the

defendant was convicted and sentenced to death. On direct appeal,

the defendant challenged the trial court=s refusal to reconsider its

rulings. This court stated:

AWe find no reversible error in the trial court=s refusal to

reconsider its earlier rulings that denied defendant=s motions

to quash his arrest and suppress evidence, or the court=s denial

of defendant=s request to exclude evidence of the sexual

assault charge filed against the defendant. The defendant

could have raised these arguments in his first appeal, and his

failure to do so justified the trial court=s refusal to reconsider

its rulings, under principles of collateral estoppel. ***

Defendant does not suggest that he did not receive a full and

fair hearing on his pretrial motions. Defendant points to no

new evidence or legal precedent that would have been

pertinent to the trial court=s rulings on these matters. Also, we

can find no special circumstances that would have warranted

relitigation of defendant=s pretrial arguments.@ Enis, 163 Ill.

2d at 386-87.

Our case law does not explicitly define Aspecial circumstances.@

At common law, however, special circumstances suspended the

doctrine of collateral estoppel as a matter of equity where estoppel

would result in manifest injustice. See St. Paul Fire & Marine

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Insurance Co. v. Downs, 247 Ill. App. 3d 382, 389 (1993). Illinois

courts have found special circumstances warrant relitigation of an

earlier ruling when the defendant was denied an opportunity to

litigate the issue in his first appeal. In People v. Mordican, 64 Ill. 2d

257, 261-62 (1976), we held that under the special-circumstances

exception a defendant who unsuccessfully challenged the legality of

his arrest, but was acquitted of the charge, may later raise the same

argument of the legality of the arrest with respect to separate charges

also filed against him because his acquittal prevented appellate

review of his motion in the first proceeding. In People v. Savory, 105

Ill. App. 3d 1023, 1027-28 (1982), the appellate court reached a

similar result. The defendant was charged with two murders after he

made a statement to officers and a confession the following day. At

his first trial, the trial court denied the defendant=s motion to suppress

his statement and later confession. On appeal, the defendant

challenged the admission of his confession but did not challenge the

admission of his statement. The appellate court reversed the

defendant=s conviction, holding that his confession was involuntary.

On retrial, the trial court declined to reconsider its ruling regarding

the admissibility of his statement. The appellate court reversed,

holding that special circumstances warranted relitigation of the ruling

because the Astatements which defendant sought to suppress in the

second trial were not relied upon by the prosecution in the first trial

and, necessarily, the issue of suppression of evidence which could not

have contributed to his first conviction would have been considered

moot on review in the first appeal.@ Savory, 105 Ill. App. 3d at 1027-

28.

Unlike the defendants in both Mordican and Savory, defendant

here was not prevented from raising in his initial appeal the issue he

raised on remand at the beginning of his second trial and in this

appeal. The record illustrates that defendant was clearly on notice

that the statements could have contributed to his first conviction.

Specifically, the State used the July 27 and August 16 statements to

prosecute defendant in the first trial, and he challenged their

admissibility prior to the start of his first trial. However, in his initial

appeal defendant did not challenge the admissibility of the July 27

and August 16 statements and acknowledges this fact in his current

appeal. Rather, defendant only appealed the admissibility of his

August 15 statement in his initial appeal. Thus, the circumstances in

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this case more closely resemble those in Enis, where we found no

special circumstances. Similarly, defendant does not suggest that he

did not receive a full and fair hearing on his motions in the initial trial

and, further, does not offer new evidence or new legal precedent that

would have been important to the trial court at the time of its initial

ruling.

The appellate court seems to conclude that Aspecial

circumstances@ exist to avoid application of the collateral estoppel

doctrine in this case because defendant was denied the opportunity to

litigate the admissibility of the July 27 and August 16 statements in

his first appeal. 315 Ill. App. 3d at 504. According to the appellate

court, defendant was denied the opportunity to litigate the

admissibility of these statements in his first appeal because the appeal

was resolved solely based upon the August 15 statement. 315 Ill.

App. 3d at 504 (AIt was not necessary for us to address the other two

interviews [the July 27 and the August 16 statements] when we

decided [defendant=s first appeal]@).

This is incorrect. The appellate court in the first appeal did not

fail to consider the admissibility of the July 27 and August 16

statements because it was Aunnecessary@ or because resolution of the

one issue precluded further review of other issues. Rather, the

appellate court did not consider the admissibility of the July 27 or

August 16 statements because the defendant did not challenge their

admissibility in his first appeal. Clearly, this court has never held that

a defendant=s mere failure to challenge the admissibility of a ruling in

the first appeal is a special circumstance sufficient to overcome

collateral estoppel.

Furthermore, certainly the trial court was not obligated to

reexamine each of its rulings, including any unappealed Rule 402(f)

issues. This defies common sense and precedent. The examination of

whether statements are plea-related is fact specific. A finding as to

one statement does not necessarily reflect upon the admissibility of

other statements. See People v. Friedman, 79 Ill. 2d 341, 352 (1980).

Therefore, the appellate court=s holding that the August 15 statements

were made in the course of plea negotiations did not require the trial

court to reconsider the admissibility of all other statements on

remand. As we noted in Enis, the trial court retains inherent authority

to reconsider rulings as long as the cause is pending before it.

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However, the Atrial court=s power to modify its rulings does not imply

that the court is obligated to hold@ a hearing. (Emphases in original.)

Enis, 163 Ill. 2d at 387.

Defendant argues that if this court should find that collateral

estoppel bars relitigation of the unappealed issue, reversal is

warranted because he was denied effective assistance of counsel by

his original appellate counsel. Defendant maintains that his original

appellate counsel was ineffective for failing to challenge the July 27,

1994, and August 16, 1994, statements. The appellate court declined

to consider the argument because it held that the July 27 and August

16 statements were independent admissions and not excluded under

Rule 402(f). 315 Ill. App. 3d at 508.

In People v. Albanese, 104 Ill. 2d 504 (1984), we adopted the

two-prong, performance-prejudice test first enunciated in Strickland

v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052

(1984), to examine claims of ineffective assistance of counsel. The

Strickland test applies to claims of ineffective appellate counsel.

People v. Johnson, 205 Ill. 2d 381, 405 (2002). In order to prevail on

his claim, defendant must show that counsel=s failure to raise the

issue on appeal was objectively unreasonable and that this decision

prejudiced him. Johnson, 205 Ill. 2d at 405-06. Appellate counsel is

not required to brief every conceivable issue on appeal and may

refrain from developing nonmeritorious issues without violating

Strickland (People v. Simms, 192 Ill. 2d 348, 362 (2000)), because

defendant suffers no prejudice unless the underlying issue is

meritorious (People v. Easley, 192 Ill. 2d 307, 329 (2000)). Because

we find the issue dispositive, we examine the underlying merits of

defendant=s claim to assess whether he was prejudiced by appellate

counsel=s failure to raise the issue on appeal.

Supreme Court Rule 402(f) encourages the negotiated disposition

of criminal cases because the rule eliminates the risk that the jury will

hear statements or admissions made by defendants during plea

negotiations. Friedman, 79 Ill. 2d at 351. Rule 402(f) states:

AIf a plea discussion does not result in a plea of guilty, or

if a plea of guilty is not accepted or is withdrawn, or if

judgment on a plea of guilty is reversed on direct or collateral

review, neither the plea discussion nor any resulting

agreement, plea, or judgment shall be admissible against the

-15-

defendant in any criminal proceeding.@ 177 Ill. 2d R. 402(f).

We have adopted a two-prong test to examine whether a

statement is an inadmissible plea-related statement. Friedman, 79 Ill.

2d at 351. To prevail, a defendant must satisfy both prongs. A

statement is plea-related and, therefore, inadmissible under Rule

402(f) if defendant exhibited a subjective expectation to negotiate a

plea and the expectation was reasonable under the totality of the

objective circumstances. Friedman, 79 Ill. 2d at 351.

We adopted this test in Friedman, wherein we held that the

federal analysis applicable to determine when a statement is plea-

related equally applied to our examination under Rule 402(f) because

of the Asubstantial similarity@ between the rules.2 Friedman, 79 Ill. 2d

at 351, citing United States v. Robertson, 582 F.2d 1356, 1365 (5th

Cir. 1978) (establishing the Ageneral framework for determining

whether a conversation is an inadmissible plea negotiation@ under the

then-existing federal rules).

In Friedman, the defendant was convicted of theft by deception

for his involvement in a series of fraudulent investment schemes. The

defendant was also charged with federal mail fraud for the same

conduct. On appeal, the defendant challenged the introduction of a

statement he made to an investigator for the office of the Attorney

General. Particularly, the defendant=s statement AIf I=m convicted, I

would rather go to a Federal prison as opposed to a State prison@ was

admitted against him. The record revealed that the defendant made

this statement during a telephone conversation with the investigator,

after the investigator answered the telephone with the greeting

AOffice of the Attorney General.@ The State responded that because

the investigator clearly informed the defendant that he had no

authority to negotiate, by telling the defendant that he A[had] no

2

Federal Rule of Criminal Procedure 11(e)(6), once substantially similar

in language to Rule 402(f), has now been formally amended and is more

limited in its application. See People v. Hart, 214 Ill. 2d 490, 502-03

(2005).

-16-

control over that,@ the defendant=s offer to bargain was not made as

part of a plea negotiation. Friedman, 79 Ill. 2d at 350. We disagreed

and held that Aactual authority@ to negotiate is not required under

Rule 402(f). Friedman, 79 Ill. 2d at 352. As an initial matter, we held

that a statement of an offer to plea is clearly an indication of a

Adefendant=s intent to pursue plea negotiations.@ Friedman, 79 Ill. 2d

at 352. Put another way, the defendant=s statement satisfied the first

prong because when he voiced his desire to bargain he exhibited a

subjective expectation to negotiate. The facts further revealed that

there was no other possible purpose for his statement. Consequently,

we held that under the circumstances the Areasonableness of

defendant=s expectations@ were evident. Friedman, 79 Ill. 2d at 353.

Accordingly, the defendant=s statement was inadmissible under Rule

402(f). Friedman, 79 Ill. 2d at 352.

We recently addressed Rule 402(f) in People v. Hart, 214 Ill. 2d

490 (2005). In Hart, we considered whether a defendant=s inquiry to a

detective regarding what the detective Acould do for him@ if he

cooperated was inadmissible under Rule 402(f). Hart, 214 Ill. 2d at

511. We held that Athis court never intended Rule 402(f) to exclude as

evidence mere offers to cooperate *** where the offers were not

accompanied by >the rudiments of the negotiation process.= @ Hart,

214 Ill. 2d at 504, quoting Friedman, 79 Ill. 2d at 353. There, we held

that because the defendant did not request that the detective initiate

contact or convey terms to the prosecutor or, alternatively, specify the

terms he would require in exchange for pleading guilty, the rudiments

of the negotiation process were not present, thereby rendering the

defendant=s statements admissible. Hart, 214 Ill. 2d at 511-12.

Defendant here contends that the record is clear that on July 27,

1994, and August 16, 1994, he conveyed offers to bargain, including

the terms he would require in exchange for pleading guilty. We note

that the record, including detectives= reports, a transcribed copy of

defendant=s statement, and a multitude of testimonial evidence

spanning several years during both pretrial motions and trial, contains

veiled references of an offer and is simply not clear when, and if,

defendant ever conveyed an offer to bargain on the dates at issueB

July 27, 1994, and August 16, 1994. Nevertheless, even if we accept

as true defendant=s assertion that he conveyed some offer to bargain

on July 27, 1994, and August 16, 1994, defendant=s claim must fail.

Under the totality of the circumstances, it was objectively

-17-

unreasonable for defendant to believe he was engaged in plea

negotiations on July 27, 1994, and August 16, 1994.

As an initial matter, our holding in Friedman does not dictate the

exclusion of defendant=s statements. In Friedman, we considered the

admissibility of a bare offer to plea, nothing more. We held that plea

negotiations was the purpose of the defendant=s statement and that no

other possible purpose for the defendant=s statement existed. Thus,

under the circumstances the Areasonableness of defendant=s

expectations@ was evident. Friedman, 79 Ill. 2d at 353. The instant

matter does not concern the admissibility of a bare offer to plea. In

fact, defendant=s alleged offers to bargain were not admitted against

him at trial. Rather, only his statements disavowing his involvement

in Dr. Dickerman=s murder were admitted against him. Thus, unlike

Friedman, here we consider the admissibility of defendant=s

exculpatory statements in the face of the detectives= express warnings

that they had no authority to negotiate. Under the totality of these

objective circumstances, we consider whether defendant=s

expectations were reasonable.

The factual distinctions between the instant matter and those

present in Friedman are of importance because we have held that the

characterization of a statement as plea-related is fact specific, and

courts may consider a variety of factors in making this determination.

Friedman, 79 Ill. 2d at 351-52; see also Robertson, 582 F.2d at 1366,

1368 (Athe trial court should carefully consider the totality of the

circumstances. Thus, each case must turn on its own facts. *** [W]e

eschew a simplistic per se approach in favor of requiring a holistic

examination of the circumstances surrounding the discussion@). A per

se approachBone in which any offer by a defendant to plea would

immediately render all subsequent statements inadmissible plea

negotiationsBwould confuse the instant analysis with that used to

resolve constitutional challenges pursuant to Miranda. See Miranda

v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966);

Smith v. Illinois,469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984)

(discussing the Arigid prophylactic rule@ that once an accused makes a

clear request for counsel, all further questioning must cease until

counsel has been made available or until the accused initiates further

conversation and knowingly and intelligently waived the right he

previously invoked). The analysis here is necessarily different from

Miranda: one provides a highly specific bright-line rule, the other

-18-

does not. Thus, courts may consider the nature of the statement, to

whom defendant made the statement, and what the parties to the

conversation said. See generally Friedman, 79 Ill. 2d at 352.

Importantly, not all offers to bargain are inadmissible plea-related

statements. In Hart, we reaffirmed this principle, stating that Aoffers

to cooperate, without more, do not constitute plea negotiations or

offers to enter into plea negotiations.@ Hart, 214 Ill. 2d at 507

(discussing United States v. Pantohan, 602 F. 2d 855 (9th Cir. 1979),

United States v. Levy, 578 F. 2d 896 (2d Cir. 1978), and United States

v. Robertson, 582 F. 2d 1356 (5th Cir. 1978)). Thus, courts must be

careful to distinguish between a statement made in the furtherance of

a plea discussion, which is inadmissible, and an independent

admission, which may be admitted as evidence. Friedman, 79 Ill. 2d

at 353, citing United States v. Shotwell Manufacturing Co., 287 F.2d

667, 673 (7th Cir. 1961).

Our appellate court in the instant matter also aptly noted this

distinction:

AEvery guilty person who voluntarily speaks to a detective

probably hopes to benefit from the conversation, either by

convincing the detective that he did not commit the crime or

by obtaining leniency for his cooperation. We should resist an

approach that characterizes every conversation between a

defendant and a detective as a plea negotiation. The police

have an investigatory function that the courts and even the

State=s Attorney do not have.@ 315 Ill. App. 3d at 506.

This investigatory function is critical to law enforcement, and we

must be careful to recognize this distinction when interpreting

whether Rule 402(f) applies. Particularly, while Rule 402(f) was

enacted to encourage the negotiation process, it was not enacted to

discourage legitimate interrogation techniques. Those arrested often

seek leniency, and not all attendant statements made in the hope of

gaining concessions are plea-related statements under Rule 402(f).

See generally Hart, 214 Ill. 2d at 506-11 (examining numerous

federal and appellate cases); see also Robertson, 582 F.2d at 1368

(distinguishing a plea of guilty and a mere admission or confession,

noting that an admission may still be admissible Adespite the fact that

the accused makes some request of those in charge@).

Here, on July 27, 1994, and August 16, 1994, we take as true

-19-

defendant=s allegations that he offered to bargain. Again, however,

we can discern no detail of this offer in the record, rather only vague

references to offers to bargain. Pursuant to the second prong

articulated in Friedman, we consider whether defendant=s

expectations were reasonable under the totality of the objective

circumstances. Again, we consider the nature of the statements, to

whom defendant made the statements, and most importantly here,

what the parties to the conversations actually said.

The objective circumstances in the instant matter reveal that any

expectation that he was engaged in plea negotiations on both July 27,

1994, and August 16, 1994, was not reasonable. Defendant did not

give information to strike a deal with the detectives. Defendant did

not confess. Defendant=s statements were not prompted by a desire to

seek leniency for his actions. It is plainly obvious that defendant gave

information to exonerate himselfBdefendant spoke to the detectives

each time to convince detectives that he did not commit a crime. The

content of defendant=s statements offer no indication that he divulged

information with the intent to plead guilty, or even reduce his

culpability. In each statement defendant denied any involvement in

the circumstances causing Dr. Dickerman=s death: on July 27, 1994,

he claimed no knowledge of the circumstances surrounding Dr.

Dickerman=s death and, alternatively, on August 16, 1994, he claimed

that Dr. Dickerman=s death was the result of heart failure. We do not

believe these exculpatory discussions exhibit the requisites of plea

bargaining. The totality of circumstances here indicate that defendant

was simply not plea bargaining. Thus, we hold that any expectation

was not reasonable under the totality of the objective circumstances.

See Friedman, 79 Ill. 2d at 351.

We note that this outcome is not inconsistent with the appellate

court=s decision concerning the August 15 statements. People v.

Jones, 294 Ill. App. 3d 1125 (1998) (unpublished order under

Supreme Court Rule 23). The objective circumstances surrounding

the August 15 statements and the statements we consider today are

not analogous. On August 15, defendant did not make an unsolicited

offer to plead guilty in exchange for a lesser charge. Rather, the

detectives visited defendant for the sole purpose of obtaining

defendant=s handwritten version of the events for the State=s

Attorney=s review. The August 15 statement was a written statement

prepared at the direction of the detectives for the sole purpose of

-20-

negotiations. After the detectives instructed defendant to prepare the

statement, and defendant did so, the interview ended. On July 27 and

August 16, however, the detectives refused defendant=s attempts to

bargain, and defendant continued to discuss Dr. Dickerman=s death in

order to convince the detectives he was not culpable.

Defendant finally requests that we consider the admissibility of

the statements under the plain error exception to the waiver rule.

However, A >[b]efore plain error can be considered ***, it must be

plainly apparent from the record that an error affecting substantial

rights was committed.= @ People v. Keene, 169 Ill. 2d 1, 18 (1995),

quoting People v. Precup, 73 Ill. 2d 7, 17 (1978). However, because

we have determined that nothing in the record supports that defendant

ever engaged in plea negotiations on July 27 or August 16, his

statements were independent admissions, and our review under the

plain error doctrine is not warranted.

III. Involuntary Manslaughter Instruction

Defendant contends that he was entitled to a jury instruction on

the offense of involuntary murder. The trial court refused to give the

instruction, holding that there were no indications defendant acted in

a reckless manner. The appellate court affirmed. 315 Ill. App. 3d at

508. Defendant states in his brief, AThe jury could have found that

[Dr. Dickerman] had died from a skull fracture suffered in a fall and

further found that [defendant] had caused that fall, perhaps during a

brief struggle which ensued when [Dr. Dickerman] confronted

[defendant] about the forged checks.@ Accordingly, defendant argues

that because the jury did not receive the instruction he is entitled to a

new trial before a properly instructed jury.

The giving of jury instructions is a matter within the sound

discretion of the trial court. People v. Castillo, 188 Ill. 2d 536, 540

(1999). An instruction on a lesser offense is justified when there is

some credible evidence to support the giving of the instruction.

People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998). Where there is

evidentiary support for an involuntary manslaughter instruction, the

failure to give the instruction constitutes an abuse of discretion.

DiVincenzo, 183 Ill. 2d at 249. Whether an involuntary manslaughter

instruction is warranted depends on the facts and circumstances of

each case. DiVincenzo, 183 Ill. 2d at 251.

-21-

The offenses of involuntary manslaughter and first degree murder

require different mental states, such that involuntary manslaughter

requires a less culpable mental state than first degree murder.

Particularly, involuntary manslaughter requires that a defendant

unintentionally kill an individual by recklessly performing acts that

are likely to cause death or great bodily harm. 720 ILCS 5/9B3(a)

(West 2000). Recklessness is defined in section 4B6 of the Criminal

Code:

AA person is reckless or acts recklessly, when he

consciously disregards a substantial and unjustifiable risk that

circumstances exist or that a result will follow, described by

the statute defining the offense; and such disregard constitutes

a gross deviation from the standard of care which a

reasonable person would exercise in the situation.@ 720 ILCS

5/4B6 (West 2000).

Though defendant contends that some evidence supports that he

acted recklessly in causing Dr. Dickerman=s death, the record in no

way supports this assertion. At trial, defendant testified that he was

not present at the time of Dr. Dickerman=s death and that he last saw

Dr. Dickerman alive. Alternatively, in his various statements to the

detectives, defendant claimed that (1) he discovered Dr. Dickerman

dead, (2) while he was at the house Dr. Dickerman had a heart attack

and fell to the floor, and (3) while he was at the house Dr. Dickerman

had a heart attack and hit his head when he fell to the floor. This

evidence does not support a struggle and inadvertent fall.

In addition, pathology evidence admitted during trial did not

warrant an instruction. Pathologists at trial explained that Dr.

Dickerman sustained a skull fracture that was either the result of a

blow to the head by a blunt object or the result of a fall. Defendant

asserts that this evidence was sufficient for a jury to find that

defendant inadvertently knocked Dr. Dickerman down during a brief

struggle, causing his death. Again, defendant=s own statements rebut

this claim. There was simply no evidence at trial to support

defendant=s claim that he inadvertently caused Dr. Dickerman to fall.

In order to require an instruction of involuntary manslaughter,

defendant must be able to point to some evidence in the record that he

acted recklessly. Because there is a complete absence of any evidence

to support an involuntary manslaughter instruction, we find that the

-22-

trial court=s refusal to give the instruction was not an abuse of

discretion.

IV. Venue

Defendant argues that the State failed to prove that Dr.

Dickerman was killed in Sangamon County and therefore failed to

prove a necessary element of the offenseBvenueBand his conviction

must be vacated.

At the time of Dr. Dickerman=s death, section 1B6 of the Criminal

Code set forth the general venue requirements for criminal actions.

720 ILCS 5/1B6 (West 1994). Pursuant to this section, venue was a

material element of the offense and the State was required to prove

the element beyond a reasonable doubt. People v. Digirolamo, 179

Ill. 2d 24, 49 (1997). In the instant matter, the State was required to

prove venue beyond a reasonable doubt. 3

Therefore, we must determine whether, after viewing the

evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. People v. Evans, 209 Ill. 2d 194, 209

(2004). It is not the province of this court to substitute its judgment

3

Amended section 1B6 provides, AThe State is not required to prove

during trial that the alleged offense occurred in any particular county in this

State.@ 720 ILCS 5/1B6(a) (West 2000). This amendment, however, does

not apply in the instant matter. Amendments that affect procedure or

remedies, and not substantive rights, apply retroactively to pending cases.

Digirolamo, 179 Ill. 2d at 50. This court has held that amended section 1B6

does not apply retroactively because the amended version of section 1B6

effected a change in substantive law. Digirolamo, 179 Ill. 2d at 50.

-23-

for that of the jury, and we will not reverse a conviction unless the

evidence is so unreasonable, improbable or unsatisfactory that it

raises a reasonable doubt of defendant=s guilt. Evans, 209 Ill. 2d at

209; People v. Hall, 194 Ill. 2d 305, 329-30 (2000); Digirolamo, 179

Ill. 2d at 43.

Venue is proper in any county where any element of the offense

occurred. See People v. Sims, 244 Ill. App. 3d 966, 1004 (1993).

Where the body of a homicide victim is discovered in Illinois, the

death is presumed to have occurred in the state. 720 ILCS 5/1B5(b)

(West 1994). When the victim is not discovered in Illinois, the State

does not receive the presumption and must establish venue beyond a

reasonable doubt. Venue may be established by either direct or

circumstantial evidence. Particularly, A[v]enue may be shown by

circumstantial evidence and is proved if there is evidence from which

it can be inferred that the crime was committed in the county where

the prosecution took place.@ Sims, 244 Ill. App. 3d at 1004.

Dr. Dickerman=s body was discovered beyond Illinois=

boundaries. However, the record contains evidence from which a

rational trier of fact could have concluded Dr. Dickerman=s death

occurred in Sangamon County. Importantly, the jury heard

defendant=s own statements of where the death occurred. In his July

27 and August 16 statements, defendant said Dr. Dickerman died in

his home in Sangamon County. The jury learned that defendant

informed the detectives that he removed Dr. Dickerman=s body from

his house in Sangamon County and drove the body outside Illinois,

thereby explaining why the body was discovered beyond Illinois=

boundaries. This evidence alone, viewed in the light most favorable

to the prosecution, is sufficient to survive the instant challenge.

However, we also note that the jury learned defendant forged Dr.

Dickerman=s checks, that on the day he died Dr. Dickerman

confronted defendant about the forgeries, and that on the day Dr.

Dickerman died defendant attempted to hide evidence of the forgeries

and appeared anxious and nervous when he was unable to retrieve the

mail containing evidence of his forgeries. Further, the jury was

presented with medical testimony at trial that Dr. Dickerman=s death

was more consistent with a blow to the head with a blunt object than

a fall from a cliff. Finally, the jury also heard testimony from forensic

investigators regarding evidence of bloodspatters on the bathroom

-24-

wall, window sill, and rug within Dr. Dickerman=s house. The

investigator testified that the blood gathered from the bathroom rug

matched the victim=s DNA. We find that this evidence, taken

together, is sufficient to support venue beyond a reasonable doubt.

V. Amendment of the Charges

Defendant argues that the State improperly amended the

indictment on the day of trial. The State amended count III of the

indictment, which charged that defendant=s conduct created Aa strong

probability of death,@ to state that defendant=s conduct Acreated a

strong probability of death or great bodily harm.@

The State may amend the charging instrument to correct formal

defects at any time. 725 ILCS 5/111B5 (West 2000) (providing a

nonexclusive list of formal defects). Defendant was charged with first

degree murder, and the indictment prior to the amendment properly

identified the relevant statute. 720 ILCS 5/9B1 (West 1996). The

amendment did not alter or change the charge, or broaden the scope

of the indictment. See People v. Griggs, 152 Ill. 2d 1, 32 (1992).

Further, it did not add an alternative mental state. In effect, the

indictment was amended to cure a scrivener=s error. Defendant was

neither taken by surprise nor unable to prepare his defense to the

allegation. The trial court did not err in permitting the amendment.

VI. Apprendi v. New Jersey

As a final matter, defendant argues that his conviction should be

overturned pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L.

Ed. 2d 435, 120 S. Ct. 2348 (2000), because a fact that increased his

imprisonment, the age of the victim, was not alleged in the charging

instrument and not submitted to the jury and proven beyond a

reasonable doubt.

An Apprendi violation is not per se reversible error and may be

subject to a harmless-error analysis. People v. Thurow, 203 Ill. 2d

352, 363 (2003). Here, the State presented uncontested and

overwhelming evidence during trial that Dr. Dickerman was 85 years

old at the time of his death. We conclude, therefore, that any

Apprendi violation in this case constituted harmless error.

Defendant cites Blakely v. Washington, 542 U.S. 296, 159 L. Ed.

-25-

2d 403, 124 S. Ct. 2531 (2004), as additional authority for the

proposition that Aan Apprendi error cannot be harmless.@ Blakely,

however, simply holds that the statutory maximum for Apprendi

purposes is the maximum sentence a trial judge may impose based

solely on the facts behind the jury=s guilty verdict or the defendant=s

guilty plea. See Blakely, 542 U.S. at 303, 159 L. Ed. 2d. at 413, 124

S. Ct. at 2537. Blakely does not dictate that an Apprendi violation

cannot be a harmless error.

CONCLUSION

For the reasons stated, the judgment of the appellate court is

affirmed.

Affirmed.

JUSTICES GARMAN and KARMEIER took no part in the

consideration or decision of this case.

JUSTICE McMORROW, specially concurring:

In the case at bar, defendant has raised a number of issues for our

review. For the most part, this court is in agreement on the resolution

of these claims. However, there is one issue upon which the court

does not agreeBwhether defendant=s appellate counsel following his

first trial was ineffective for failing to challenge the admissibility of

oral statements defendant made to police, on July 27, 1994, and

August 16, 1994, as plea-related pursuant to Illinois Supreme Court

Rule 402(f). The lead opinion finds that the July 27, 1994, and

August 16, 1994, statements were not plea related and, thus, these

statements were not inadmissible under Rule 402(f). As a result, the

lead opinion finds that defendant=s initial appellate counsel was not

ineffective for failing to challenge the trial court=s suppression ruling

with regard to these statements. The dissent, however, finds that

defendant did receive ineffective assistance of appellate counsel

because the July 27, 1994, and August 16, 1994, statements were plea

related and, thus, defendant was prejudiced by his initial appellate

counsel=s failure to challenge their admissibility under Rule 402(f).

I agree with the lead opinion that the oral statements made on the

-26-

two dates in question here were not plea related. However, I disagree

with the lead opinion=s analysis of this matter. First, the lead opinion

characterizes defendant=s statements on July 27, 1994, and August 16,

1994, as Aexculpatory@ (see pages 34 and 39) which is, in my view,

inaccurate. On July 27, 1994, defendant told police that he found Dr.

Dickerman, collapsed on the floor of his home, and attempted to give

him CPR. Defendant admitted that he called no one to assist because

he was afraid of getting in trouble. Defendant said that, instead of

notifying anyone about Dr. Dickerman=s condition, he returned the

next day and disposed of Dr. Dickerman=s body, making it look like

Dr. Dickerman left on his own. On August 16,1994, defendant

revised his July 27 statement, this time claiming that Dr. Dickerman

suffered a heart attack while yelling at defendant about the forged

checks. Defendant still said he did nothing to save Dr. Dickerman and

never called for assistance. He also admitted, as before, to disposing

of Dr. Dickerman=s body. In my view, these statements should not be

viewed as Aexculpatory.@

I also disagree with the analysis employed by the lead opinion to

support its statement that Aobjective circumstances in the instant

matter reveal that any expectation that he [defendant] was engaged in

plea negotiations on both July 27, 1994, and August 16, 1994, was

not reasonable.@ See slip op. at 20. The lead opinion reasons:

ADefendant did not give information to strike a deal with the

detectives. Defendant did not confess. Defendant=s statements

were not prompted by a desire to seek leniency for his

actions. It is plainly obvious that defendant gave information

to exonerate himselfBdefendant spoke to the detectives each

time to convince detectives that he did not commit a crime.

The content of defendant=s statements offer no indication that

he divulged information with the intent to plead guilty, or

even reduce his culpability.@ Slip op. at 20.

I disagree with each of the above statements. As I will explain,

defendant did give information to the detectives in the hopes of

convincing the detectives that his actions amounted to something less

than murder, i.e., involuntary manslaughter or concealment of a

homicide. Defendant did confess, albeit not to murderBdefendant=s

statements were inculpatory as to other criminal offenses. Defendant

did desire leniency in the respect that he was hopeful of convincing

-27-

the detectives that he was not responsible for and, therefore, should

not be charged with, Dr. Dickerman=s murder. Defendant hoped to be

charged with some other lesser offense. Defendant did not hope to

convince the detectives that Ahe did not commit a crime.@ See slip op.

at 20. Defendant gave information to exonerate himself of murder,

but he admitted to other crimes. Thus, the lead opinion offers no

justification for its holding that defendant=s expectation that he was

negotiating a plea bargain was not reasonable and its analysis fails.

However, I am not persuaded by the dissent on this matter. The

dissent, though lengthy, comes to one basic conclusionBthat

testimony presented at the June 1996 hearing on defendant=s motion

to suppress Aestablishes that, at least by the time of the July 27

interview, defendant was attempting to negotiate a plea with the

State=s Attorney=s office and that the police agreed to act as his

conduit for information.@ See slip op. at 48 (Kilbride, J., dissenting).

The dissent misses the point. It is true that defendant made offers

to plead guilty to certain lesser offenses on August 3, 1994, and

August 15, 1994. It may also be true that, at some point during

defendant=s meeting with police that took place on July 27, 1994,

defendant made an offer to plead guilty. But defendant is not seeking

to suppress these offers, which contain the Arudiments of the

negotiation process@ and which everyone recognizes as offers to

negotiate a plea. This is because defendant does not allege that

anyone ever testified at trial that he made an offer to plead guilty on

July 27, 1994, or August 16, 1994. Instead, defendant is seeking to

suppress, in their entirety, factual statements made to police during

interviews conducted on these dates. In my view, the fact that

defendant made offers to plead guilty does not, by itself, Aestablish@

that the statements defendant seeks to suppress were plea-related

discussions under Rule 402(f). See slip op. at 48 (Kilbride, J.,

dissenting).

Contrary to the dissent, I believe that, in order to determine

whether it was objectively reasonable for defendant to believe that he

was engaged in plea negotiations at the time he made the statements

he seeks to suppress, it is important to consider when the offers were

made, i.e., whether the offer to plead guilty was made prior to or

subsequent to the statement at issue, and what else was said by the

parties present. I reject the notion, espoused by the dissent, that there

-28-

is an Ainherent interrelationship@ (see slip op. at 49 (Kilbride, J.,

dissenting)). between defendant=s attempts to negotiate a plea, such

that, subsequent to an offer to plead guilty, every conversation a

defendant has with police, over the course of weeks or months, is

automatically transformed into Aplea negotiations.@

I also do not agree with the dissent that Friedman=s holding that

A >a preamble explicitly demarcating the beginning of plea

negotiations= @ is not required, is at odds with the need for some sort

of prefatory offer. (Emphasis omitted.) See slip op. at 51 (Kilbride, J.,

dissenting), quoting Friedman, 79 Ill. 2d at 352. Nor do I agree with

how the dissent interprets Friedman when it states that Aonly >[w]here

a defendant=s subjective expectations are not explicit, [do] the

objective circumstances surrounding defendant=s statement take

precedence in evaluating defendant=s subsequent claim that the

statement was plea-related.= @ (Emphasis omitted.) Slip op. at 52

(Kilbride, J., dissenting), quoting Friedman, 79 Ill. 2d at 353. As I

will explain, the dissent=s understanding of Friedman is

fundamentally flawed.

Finally, I find no justification for the dissent=s characterization of

the police officers= dealings with defendant as disingenuous. See slip

op. at 62 (Kilbride, J., dissenting). In my view, these remarks are not

supported by the record.

For all of the above reasons, I write separately.

BACKGROUND

At the heart of defendant=s sixth amendment claim is an issue of

importance: When is a statement part of plea negotiations and,

therefore, subject to suppression under Rule 402(f)? An answer to

this question was recently provided by this court in People v. Hart,

214 Ill. 2d 490 (2005). In Hart, we reaffirmed the two-part test

recognized in Friedman for determining whether a particular

statement is plea-related. We said that courts must consider, first,

whether the accused exhibited a subjective expectation to negotiate a

plea, and, second, whether that expectation was reasonable under the

totality of the objective circumstances. Hart, 214 Ill. 2d at 503, citing

Friedman, 79 Ill. 2d at 351. We also noted that, A >[b]efore a

discussion can be characterized as plea related, it must contain the

rudiments of the negotiation process, i.e., a willingness by defendant

-29-

to enter a plea of guilty in return for concessions by the State.= @ Hart,

214 Ill. 2d at 503, quoting People v. Friedman, 79 Ill. 2d 341, 353

(1980). According to Hart, then, a discussion is not plea-related

unless the defendant=s subjective expectation to enter into plea

negotiations is communicated by some type of offer to plead guilty in

exchange for concessions and the defendant=s subjective belief that

he is plea bargaining is objectively reasonable under the attendant

circumstances.

It is important to keep in mind that, in both Friedman and Hart,

the question before the court was whether it was error to have

permitted testimony at trial revealing that the defendants had made

certain Ainquiries,@ i.e., that the defendant in Friedman inquired into

Amaking a deal@ and that the defendant in Hart inquired into Awhat I

could do for him if he cooperated.@ The issue was whether these

inquiries were evidence of the defendants= subjective belief that they

were attempting to enter into a Aplea discussion.@ Thus, both

Friedman and Hart dealt with the first prong of the two-part test.

That is not the issue in the case at bar. Here, there is no question that,

on certain dates, defendant made offers in an attempt to enter into

plea negotiations. But the statements defendant made when

attempting to enter into plea negotiations were not admitted at trial, at

least with regard to the July 27, 1994, and August 16, 1994, dates.

The question in the case at bar is whether it was objectively

reasonable under the attendant circumstances for defendant to believe

that he was actually engaged in plea negotiations when he made the

factual admissions and other statements which he now seeks to

suppress.

Consequently, resolution of the issue before this court is highly

dependent upon the facts of the case. Thus, an accurate and detailed

statement of facts is of utmost importance. In the case at bar, any

decision about when defendant made the offer containing Athe

rudiments of the negotiation process@ and whether it was reasonable

under the circumstances for defendant to have believed that he was

engaged in plea bargaining when he made the statements he seeks to

suppress must be determined after a thorough examination of the

facts. To that end, I offer the following additional facts, which I

believe are important to the resolution of the matter before us.

Defendant, an itinerant painter, was hired in July 1992 by Dr.

-30-

Henry Dickerman, an 84-year-old retired gentleman, to do some

painting and repair work on Dickerman=s home. Defendant was

working at the Dickerman residence in August 1992 when Dr.

Dickerman disappeared. On Tuesday, August 11, 1992, Dr.

Dickerman had lunch with a group of friends, but failed to attend his

regular Wednesday bridge game on August 12, 1992. His friends

reported him missing on August 12, 1992, and the authorities began a

massive investigation in an attempt to locate Dr. Dickerman. As part

of this investigation, the police wanted to speak with defendant. On

August 14, 1992, the police left a message for defendant on his

mother-in-law=s phone. The next day, August 15, 1992, defendant left

the State of Illinois. He gave his wife a note 4 to give to the police in

which he claimed to have no knowledge regarding the disappearance

of Dr. Dickerman.

On September 1, 1992, Dr. Dickerman=s home was processed as a

crime scene. At this time, high-velocity bloodspatter, consistent with

cast-off from a blunt-force injury, was discovered in the upstairs

master bathroom. On September 5, 1992, skeletal remains were

discovered in a Wildlife Preserve in Missouri, near St. Louis. On

September 27, 1992, these remains were positively identified as the

remains of Dr. Dickerman. Two days later, on September 29, 1992,

Dr. Dickerman=s car was located in a St. Louis airport parking lot.

Defendant returned to Illinois and was arrested in Springfield on

October 6, 1992, in relation to other alleged crimes. On this date,

defendant, in the presence of his counsel, was questioned extensively

by local police and an agent of the FBI regarding Dr. Dickerman=s

disappearance. Defendant admitted that he had been at the Dickerman

home on August 11, 1992, to do some painting. Defendant said he

saw Dr. Dickerman leave the home in the morning and return

sometime after 1 p.m. Defendant said that Dr. Dickerman left the

home again around 4 p.m., stating that he was going out to dinner

with friends. Defendant said that he finished painting, left Dr.

Dickerman=s home around 4:30 p.m., and never saw Dr. Dickerman

again. Defendant also told the police that, on August 12, 1992, he left

Springfield at about 7 a.m. to go to Peoria to gamble on a riverboat

4

The contents of this note is reported, in full, in the lead opinion. See slip

op. at 5.

-31-

casino. According to defendant, he missed the 9 a.m. cruise so he

went to a bar called Katy Hooper=s to wait for the next cruise at 11:30

a.m. He described the waitress who served him. Defendant also told

the police that he had a VIP pass at the casino and was Arated@ for his

gambling. Defendant repeated this story when police reinterviewed

him on October 13, 1992, in the presence of counsel.

The information defendant gave police was checked and

determined to be a fabrication. The waitress at Katy Hooper=s whom

defendant described had not been working that day. Moreover, no

one else at the bar remembered seeing defendant on August 12, 1992.

In addition, the casino checked defendant=s rating cards and could not

verify that defendant had been gambling on August 12, 1992.

In the course of the police investigation, it was discovered that

three out-of-sequence checks, made out to defendant and totaling

more than $5,000, had been drawn on Dr. Dickerman=s account.

Defendant was charged with three counts of forgery in relation to

these checks. On February 17, 1993, defendant pled guilty to one of

the counts of forgery and, on March 23, 1993, was sentenced to five

years= imprisonment.

On July 12, 1993, two Springfield police officers, Cox and

Young, went to the Graham Correctional Facility, where defendant

was serving his sentence for the forgery conviction. The officers

advised defendant that information he had given the police regarding

his whereabouts on August 11 and 12, 1992, did not check out. They

asked if he would be willing to speak with them. Defendant was also

advised that he would soon be charged with certain weapons charges.

Defendant indicated at this time that he wished to make another

statement regarding Dr. Dickerman=s disappearance because 80% of

what he had previously told police was true, but there were some

changes he wanted to make. Defendant stated, however, that he

wished to have counsel present. He noted that he was unsure whether

he was still being represented by the attorney who had assisted him in

the forgery matter. He asked the officers to check into the matter of

his representation because he had been unsuccessful in reaching his

previously assigned counsel. Nothing substantive regarding the

Dickerman matter was discussed on this date. Although defendant=s

counsel was contacted, no date was set for another interview.

On September 23, 1993, Springfield police officers Cox and

-32-

Young accompanied FBI agent Schmidt to Graham Correctional

Facility. A warrant was served on defendant concerning certain

weapons charges. Although defendant was interviewed on this date,

the Dickerman case was not discussed.

In June 1994, Springfield police detectives traveled to Indiana to

meet with defendant=s mother and other relatives. The detectives

explained that it was likely that defendant would soon be charged

with first degree murder in connection with Dr. Dickerman=s death.

The officers asked the family if they had any further information

concerning defendant=s involvement in Dr. Dickerman=s death. It was

also suggested that, if defendant was not responsible for Dr.

Dickerman=s death, it would be in his best interests for him to contact

his attorney so that he could make arrangements to meet with the

police and explain the extent of his involvement.

Shortly thereafter, in July 1994, the Springfield police were

contacted by defendant=s mother. She said defendant wanted to talk

with the police, but wanted the conversation to be taped. She said that

defendant asked that the detectives bring two tape recorders so that

one copy of the taped interview could be retained by defendant.

Defendant=s mother also indicated that defendant wanted some type

of Anote@ from the State=s Attorney stating the penalty ranges for

various crimes from manslaughter on up to murder.

On July 27, 1994, Springfield police officers Young and

Williamson went to Big Muddy Correctional Facility, where

defendant was then being housed. They testified at the suppression

hearing that they brought two tape recorders, but could not remember

if they also brought any Anote.@ The officers testified that, upon

arriving at the facility, defendant was advised of his rights and that he

agreed to waive his rights. The tape recorders were started and the

interview began. Once the taped interview began, defendant was

again given Miranda warnings. Notably, defendant was told that

anything he said could and would be used against him in a court of

law. Defendant stated he understood. Nowhere in the taped interview

does defendant indicate that he is giving his statement for a particular

purpose other than to amend his earlier statements. In addition, the

officers who were present testified that no one promised defendant

anything in exchange for defendant=s taped statement.

The taped interview began around noon. Five minutes later, the

-33-

tape was stopped at defendant=s request. Defendant spoke with the

detectives for about 55 minutes with the tape recorder off. Both

officers testified that during this time defendant essentially gave them

a Apreview@ of what he later said on the tape. The officers also

testified that, during this time, defendant began questioning them,

attempting to learn what the police already knew from their

investigation. At one point, defendant appeared frustrated because the

detectives were not forthcoming with information about the

investigation. He then blurted out, AI know you don=t have the murder

weapon.@ Defendant also asked the detectives about blood in the

upstairs bathroomBa fact that had not been publicly released.

At about 1 p.m., the tape recorders were turned on and the

interview resumed. According to the transcript of the interview,

defendant told the detectives that Dr. Dickerman discovered that

defendant had forged some of Dr. Dickerman=s checks on Monday,

August 10, 1992. Defendant said that Dr. Dickerman spoke to him

about the checks and, although Dr. Dickerman was not happy about

what he had done, they were able to come to an agreement.

Defendant said that they had agreed that defendant would do some

additional work around the Dickerman residence to work off the debt.

Defendant said that the next day, August 11, 1992, he did some

painting at Dr. Dickerman=s until around 4:30 p.m., when he went to

pick up his wife. They shopped for a birthday gift for his mother-in-

law and then he dropped his wife off at home. Defendant said he then

went back to Dr. Dickerman=s home between 4:30 and 5 p.m., to pick

up a check for some materials. He said that, when he arrived, the door

was open and he walked inside. Defendant said he found Dr.

Dickerman lying on the floor, dead, next to his green chair in the

livingroom. Defendant then said, AI don=tBin my opinion I don=t think

that he was murdered.@ Defendant said he thought Dr. Dickerman had

a heart attack and, for that reason, he tried to give Dr. Dickerman

CPR.

Defendant went on to explain, AI did not kill Dr. Dickerman,@ but

because only Dr. Dickerman knew about the arrangement they had

reached with regard to the forged checks, he became worried that he

would get into trouble. For this reason, defendant said, he did not call

for help. Instead, defendant said he left the Dickerman home, leaving

the door unlocked, hoping that someone else would find the body.

Defendant claimed that, later that evening, he returned to the

-34-

Dickerman residence and, as a gesture of compassion, moved Dr.

Dickerman=s body to the couch.

Defendant said that, after a sleepless night, he came up with a

plan to get rid of Dr. Dickerman=s body. Between 6:30 and 7 a.m., he

went back to Dr. Dickerman=s home, placed the body in the trunk of

Dr. Dickerman=s car, and drove around until he found a place to

dump the body. After throwing the body over a cliff, defendant drove

to Lambert-St. Louis International Airport, left the car in long-term

parking, took the shuttle to the terminal, and took a taxi to a truck

stop, where he disposed of a number of Dr. Dickerman=s personal

items (checkbook, bank statement, keys, glasses, and medicine) that

defendant had taken to make it look as if Dr. Dickerman had gone

away on his own.

The transcript of the taped interview contains no offer to plead

guilty. In fact, Officer Young, when questioned at the suppression

hearing, did not recall that defendant made any offers on this date. It

was not until he was confronted with the fact that there was a brief

notation at the end of his notes regarding the visit that he remembered

any offer. When asked about the entry, Officer Young had only a

vague memory that, at some point during the officers= visit on this

date, defendant indicated that he believed the most he could be

charged with, based on his actions, was involuntary manslaughter or

concealment of a body; that defendant indicated a willingness to

plead to a lesser charge. Officer Young admitted that he agreed to

convey the offer to the State=s Attorney. It should be noted, however,

that Officer Young also testified, AI remember telling him [defendant]

we couldn=t negotiate anything with him.@ Moreover, as noted earlier,

no one ever testified at trial that defendant made an offer to plead

guilty on July 27, 1994.

Defendant pled guilty to gun charges on July 28, 1994, and, for

this reason, was moved to the Franklin County jail. On August 3,

1994, Springfield police officers Cox and Young went to the Franklin

County jail to review with defendant the transcript of the earlier taped

interview. Defendant listened to the tape as he read along with the

transcript. Defendant agreed that the transcript was accurate and

signed it. At the April 1996 suppression hearing, Officer Young

testified that, after the transcript was reviewed, defendant indicated

that he was willing to negotiate a plea to a lesser offense for a

-35-

reduced sentence. The officers said they told defendant that they had

no ability to negotiate any deals or accept any offers, but agreed to

transmit the offer to their supervisor. Officer Young testified that

when he returned to the police station he informed his supervisor,

Sergeant Conway, of defendant=s offer. At Sergeant Conway=s

request, Officer Young went back to see defendant on August 15,

1994, and had defendant write out his plea offer. This is the written

statement which the appellate court ruled inadmissible under Rule

402(f) after defendant=s first trial and, thus, was suppressed at

defendant=s second trial.

On August 16, 1994, Springfield police officers returned to the

Franklin County jail, this time to serve a warrant on defendant for the

murder of Dr. Dickerman. The officers said they brought a copy of

the Criminal Code so that defendant could read the elements of the

offense of murder. The officers suggested that, if defendant believed

the charge of murder was inappropriate, he should tell them why.

Defendant, in an effort to convince the police that he did not murder

Dr. Dickerman, agreed to speak with the officers. Defendant was

again given Miranda warnings. He then told police a different

version of what happened on August 11, 1992. Defendant said that

Dr. Dickerman received the bank statement and discovered the forged

checks on Tuesday, August 11, 1992 (not Monday, August 10, 1992,

as he had previously indicated). Defendant said that Dr. Dickerman

became quite angry and began yelling at him. At this point, defendant

said, Dr. Dickerman clutched his chest and fell down, hitting his head

on the fireplace as he went. The remainder of defendant=s story,

regarding the disposal of the body, remained the same as in his earlier

statement.

ANALYSIS

Only the statements defendant made to police on July 27, 1994,

and August 16, 1994, are at issue in the present appeal. Defendant

contends that everything he told police on these two dates constitute

plea discussions and, therefore, should have been ruled inadmissible

under Rule 402(f). Because defendant=s initial appellate counsel did

not challenge the admissibility of these statements in his first appeal,

defendant claims he received ineffective assistance of counsel.

Illinois Supreme Court Rule 402(f) provides:

-36-

AIf a plea discussion does not result in a plea of guilty, or

if a plea of guilty is not accepted or is withdrawn, or if

judgment on a plea of guilty is reversed on direct or collateral

review, neither the plea discussion nor any resulting

agreement, plea, or judgment shall be admissible against the

defendant in any criminal proceeding.@ 177 Ill. 2d R. 402(f).

Since the rule provides that Aplea discussions@ are inadmissible,

the rule begs the question, what is a plea discussion? As explained

above, we addressed this issue recently in People v. Hart, 214 Ill. 2d

490 (2005). In Hart, Decatur police detective Michael Beck testified

at defendant=s trial that he had interviewed defendant after his arrest,

advised the defendant of his rights, and the defendant agreed to speak

with him. Beck testified that defendant initially began talking about

an outstanding warrant, but Beck told the defendant that he wanted to

talk about the armed robbery. Beck testified that he told defendant

that he knew defendant was involved (defendant had been tentatively

identified by witnesses) and that defendant then asked Awhat I could

do for him if he cooperated.@ Beck testified that he told defendant he

could not make any promises, but would tell the State=s Attorney of

his cooperation. The interview ended and defendant never admitted

any involvement in the robbery. Based on Beck=s testimony, the

prosecutor argued, in closing argument, ALadies and gentlemen, only

guilty men want to know what they get if they cooperate.@ On appeal,

defendant argued, for the first time, that he was denied a fair trial

when the prosecutor elicited testimony that defendant attempted to

plea bargain and commented on the attempt in closing argument. In

resolving this appeal, we held that defendant=s offer to cooperate was

not a Aplea discussion@ within the meaning of Rule 402(f). After an

extensive examination of other cases, we concluded that defendant=s

inquiry into what could be done if he cooperated did not contain the

Arudiments of the negotiation process@ and, thus, was not a plea

discussion. Also, we held that defendant=s decision to make no

statement after hearing the detective=s response to his inquiry was an

indication that defendant did not have a Asubjective expectation@ that

he was negotiating a plea and that, even if defendant=s inquiry was

evidence of defendant=s subjective expectation, that expectation was

not reasonable under the totality of the objective circumstances. Hart,

214 Ill. 2d at 511-12.

The case at bar is quite different. Here, there is evidence that

-37-

defendant did make an offer which contained the Arudiments of the

negotiation process.@ The record suggests that, at some point on July

27, 1994, defendant made an offer to plead guilty to some offense

(involuntary manslaughter or concealment) in exchange for a

particular sentence. However, there is also evidence that defendant=s

offer to plead guilty did not come until August 3, 1994, after the

transcript of his July 27, 1994, statement was reviewed. In either

event, it is clear that any actual offers by defendant to plead guilty

were Aplea discussions@ and, as such, these plea offers, like the

August 15, 1994, written plea offer, would be inadmissible under

Rule 402(f).

As noted earlier, however, defendant is not seeking to suppress

his offers to plead guilty. Indeed, no one ever testified, at either of

defendant=s two trials, that defendant made an offer to plead guilty on

July 27, 1994, or August 16, 1994. Thus, the Adevastating effect@ that

revealing to a jury a defendant=s offer to plead guilty can have on a

case (see Friedman, 79 Ill. 2d at 353), which Rule 402(f) is intended

to prevent, did not occur in this case.

Here, defendant is asking us to find that admissions he made on

July 27, 1994, and August 16, 1994, regarding his involvement in the

disappearance and death of Dr. Dickerman, should have been

suppressed as plea-related discussions, i.e., statements made in

furtherance of his offers to plead guilty. To decide this issue, the facts

surrounding the statements must be considered. For this reason, I

analyze the two dates separately.

July 27, 1994

On July 27, 1994, Springfield police officers went to see

defendant in response to his request and conducted a taped interview.

The transcript of the interview, as well as the officers= testimony,

establishes that prior to any questioning, defendant was advised of his

rights and was specifically told that anything he said could be used

against him. Defendant acknowledged his understanding of these

warnings on the tape and, later, when he signed the transcript.

Nothing on the tape or transcript and no testimony at the motion to

suppress or at trial supports the notion that, prior to giving his

statements, defendant offered to plead guilty to any crime or that his

statements were made in furtherance of such an offer. Instead, the

-38-

evidence strongly suggests that defendant made his statement in an

attempt to cooperate with the police. Thus, as in Hart, the statements

are not plea discussions.

As noted above, there was some evidence presented at the hearing

on the motion to suppress which suggests that, at some point during

defendant=s meeting with police on this date, defendant tried to elicit

from the officers an agreement that his actions constituted some

offense other than murder and that he should be charged with some

other offense. However, based on the record and, in particular, the

testimony elicited from the officers at the hearing on the motion to

suppress, even if defendant did offer to plead guilty on this date, the

admissions defendant made during the taped interview were made

prior to any such offer.

I reach this conclusion based on the totality of the circumstances.

The officers testified that defendant was manipulative and conniving.

We know, too, that he was a good storyteller who could build

elaborate stories, complete with intricate and plausible

embellishments, to suit the situation. This is evident from the letter he

sent to police in August 1992, explaining his rationale for leaving the

state, and the story he told in October 1992, regarding his

whereabouts on August 11 and 12, 1992. It is also clear from the

record that defendant requested the meeting with police after he

learned that it was likely that he would soon be charged with murder.

Defendant knew that the police had investigated his alibi for August

12, 1992, and found that the alibi did not check out. It is reasonable

to conclude, therefore, that one of defendant=s motives for requesting

the meeting was to learn what the police knew about his involvement

in Dr. Dickerman=s disappearance and what the police knew about the

cause of Dr. Dickerman death. Defendant wanted to discern what

evidence the police had so that he could tailor his statements to

conform with the evidence. This explains why, five minutes into the

taped interview, as soon as defendant was asked to explain his

whereabouts on August 12, 1992, defendant asked that the tape be

stopped. It appears that defendant wanted to Atest@ some information

on the officers. For example, defendant suggested that Dr. Dickerman

had not been murdered so he could see the officers= reaction. This is

supported by the officers= testimony that, when the tape was shut off,

defendant began asking them questions about the investigation and

that he became frustrated when they refused to tell him about the

-39-

autopsy results and other information. When defendant was unable to

get the information he wanted, he tried to convince the officers that

he was guilty of some crime other than murder. To that end, he

recounted the story of how he found Dr. Dickerman already dead and

disposed of Dr. Dickerman=s body.

In my view, the contents of the taped interview, as well as

defendant=s behavior, indicate that any offer to plead guilty came

after he had the opportunity to provide the officers with a factual

basis for the lesser charges. The question, then, is whether

defendant=s subsequent plea proposal has the ability to convert his

earlier statements into a Aplea discussion.@ I would answer this

question in the negative. In People v. Friedman, 79 Ill. 2d 341, 353

(1980), this court held Athere is a distinction between a statement

made in the furtherance of a plea discussion and an otherwise

independent admission which is not excluded by our rule.@

Explaining, we held that Awhere a defendant=s subjective expectations

are not explicit, the objective circumstances surrounding defendant=s

statement take precedence in evaluating defendant=s subsequent claim

that the statement was plea related.@ Friedman, 79 Ill. 2d at 353. As

an example, we cited with approval United States v. Levy, 578 F.2d

896 (2d Cir. 1978), wherein the court held:

APlea bargaining implies an offer to plead guilty upon

condition. The offer by the defendant must, in some way,

express the hope that a concession to reduce the punishment

will come to pass. A silent hope, if uncommunicated, gives the

officer or prosecutor no chance to reject a confession he did

not seek. A contrary rule would permit the accused to grant

retrospectively to himself what is akin to a use immunity.

Even statements voluntarily made after Miranda warnings

would be later objected to on the purported ground that they

were made in anticipation of a guilty plea since reconsidered.

A balanced system of criminal justice should not be made to

function in such a swampy terrain.@ (Emphasis added.) Levy,

578 F.2d at 901.

In my view, the timing of defendant=s plea proposal is important.

Rule 402(f) may not be used to retrospectively immunize statements

made before an offer to plead guilty has been proffered. A

defendant=s failure to communicate his subjective expectation denies

-40-

the officers the opportunity to reject the defendant=s proffered

statements. Thus, in the case at bar, even if defendant had a

subjective expectation that his factual statements were being made in

furtherance of some later proposal, that expectation was not

reasonable. Accordingly, I would hold that the factual statements

defendant made on July 27, 1994, were not subject to suppression

because they were independent admissions and not made in

furtherance of any subsequent plea offer.

Finally, even if it is true that defendant made an offer to plead

guilty to a lesser offense at the outset of the July 27 meeting with

police, I would find that, under the objective circumstances, any

subjective belief that defendant had that he was engaged in plea

negotiations was unreasonable. Here, before, defendant gave his

taped interview, defendant was given Miranda warnings and was

explicitly told that his statements would be used against him.

Moreover, as the officers repeatedly testified, whenever defendant

made any offers to plead guilty, they expressly disclaimed any ability

to negotiate a plea. The transcripts of the suppression hearings clearly

show that the officers repeatedly informed defendant that they had no

control over what charges would be filed, that they told defendant

that they were not in a position to negotiate with him, and that

defendant said he understood that the most the officers could do was

to let the State=s Attorney know what offers defendant was willing to

make. In fact, the officers characterized all of defendant=s offers,

regardless of when they were made, as Aunilateral@ attempts to

negotiate.

These factors should take precedence over any subjective

expectation that defendant might have had. Thus, even if defendant

attempted to enter into plea negotiations at the outset of the meeting,

that attempt was rejected by the officers and, for that reason, I would

find that any subjective expectation that defendant may have had that

his taped interview was part of a plea discussion was not reasonable

under the circumstances. Rule 402(f) provides no basis for

suppressing the statements defendant made on July 27, 1994.

August 16, 1994

On August 15, 1994, defendant gave the police officers a written

offer to plead guilty. The next day, however, on August 16, 1994,

-41-

Officers Cox and Williamson returned to the Franklin County jail

with a warrant for defendant=s arrest on the charge of murder. Thus,

defendant=s offer had been rejected.

Officer Cox testified that, when they visited defendant on this

date, they brought with them a book containing the Criminal Code.

He explained at the suppression hearing:

AOfficer Cox: Mr. Jones, in the other interview[,] was

very interested in paperwork, and we wanted to make sure

when we went down there to talk to him in reference to the

warrant that we could show him that we weren=t stretching

anything, we wanted to be able to show him in black and

white what the first degree murderBwhat the statute said was

first degree murder and any other charges he may be curious

about.

Q. So you wanted to be able to show him what the statute

actually said?

A. Yes.

Q. And this was when you were bringing a warrant for his

arrest for that particular charge, first degree murder?

A. Yes.

Q. Okay. Why did you even care what he though at that

point, since he in fact had been charged; is that correct?

A. He had been charged with first degree murder but all

through this investigation I believe as a team we=ve done

everything we could to be straightforward with Mr. Jones,

and he expressed on earlier occasions that he believed it was

involuntary manslaughter and concealment of a homicide,

and we wanted to let him read the words out of the law book

himself to draw that conclusion.@

Detective Williamson also explained what transpired on August

16, 1994:

ADetective Williamson: Mr. Jones, as I=m sure you

know[,] is very thorough, he had a lot of time to read up and

did, he kept himself apprised of a lot of the law and we had

on a couple of conversations talked about the different

statutes under the Illinois law, and we did take that Chapter, I

believe it was still Chapter 38 at that time, it may have

-42-

changed, but we did take that book to Franklin County jail

anticipating that he would want to read that because he did

have materials with him or available to him that he cited

when we did interview him.

Q. [Prosecutor:] You mean like the differences between

first degree, second degree, that type of thing?

A. Well, he did ask questions about that but the materials

he had available were motions to file and more technical

aspects like we=re doing now, so I don=t know if he had a

Chapter 38 and he asked us questions related to that area.@

At some point during defendant=s discussion with the officers on

August 16, 1994, defendant expressed a desire to amend his previous

statement. The officers testified that, once again, they advised

defendant of his Miranda rights. Defendant then told the officers that

he had been present in Dr. Dickerman=s home when Dr. Dickerman

received his bank statement and discovered the forged checks.

Defendant said that Dr. Dickerman became extremely angry with

him, started yelling at him, and had a heart attack while yelling at him

about the checks. Defendant said that Dr. Dickerman fell down and

hit his head on the fireplace.

It is clear that defendant=s factual statements on this date were

independent admissions. It is important to note that there is no

indication that defendant prefaced his statements on this date with a

new offer to plead guilty. No one testified, either at the hearing on the

motion to suppress or at trial, that defendant ever made an offer to

plead guilty on August 16, 1994, or that his statements were part of a

plea discussion. Thus, while defendant may have had a subjective

expectation that his statements on this date were being made in

furtherance of some earlier offer, that subjective expectation was not

communicated, nor was it objectively reasonable. His earlier offer

had been rejected, as evinced by the fact that a warrant had been

issued charging him with murder. The officers who delivered the

warrant brought a Criminal Code with them to show defendant that

his actions constituted murder. Defendant=s additional statements

were made in an effort to convince the officers otherwise.

Defendant was well aware that the officers had no ability to

authorize a change in the charges against him. The officers had

testified on several occasions that they repeatedly told defendant that

-43-

they had no ability to plea bargain and that defendant acknowledged

and understood this. Defendant was knowledgeable and experienced.

He knew that the officers were investigating Dr. Dickerman=s death

and were seeking information from him. Defendant was given

Miranda warnings before he gave his new statement. Defendant

decided to cooperate, with the hope that he could convince the

officers with a new, more plausible story that he did not murder Dr.

Dickerman. Based on the objective circumstances, any subjective

expectations defendant may have had that he was engaged in plea

discussions were not reasonable. I conclude that the statement

defendant made on this date was not a plea discussion and Rule

402(f) simply does not apply.

CONCLUSION

For the reasons set forth above, I would find that defendant=s July

27, and August 16, 1994, statements were independent admissions

and not plea discussions. Therefore, they were not subject to

suppression under Rule 402(f). As a result, I agree with the majority

that defendant=s initial appellate counsel was not ineffective for

failing to challenge the trial court=s ruling on the motion to suppress

with regard to these statements.

JUSTICE FREEMAN joins in this special concurrence.

JUSTICE KILBRIDE, concurring in part and dissenting in part:

I agree with the lead opinion that the trial court did not err in

denying defendant=s motion for substitution of judge (slip op. at 11),

that the Aspecial-circumstances@ exception does not preclude the

application of collateral estoppel in this case (slip op. at 12-13), and

that the State sufficiently proved venue at trial (slip op. at 23-24). I

respectfully disagree, however, with the remainder of its analysis. I

particularly disagree with the rejection of defendant=s claim that his

sixth amendment right to effective assistance of counsel was violated

when his original appellate counsel failed to raise the issue of the

denial of defendant=s motion to suppress his July 27 and August 16

statements.

When examining a claim of ineffective assistance of counsel, we

-44-

apply the two-part test in Strickland v. Washington, 466 U.S. 668,

687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People

v. Evans, 186 Ill. 2d 83, 93 (1999). That test requires the defendant to

show: (1) counsel=s performance fell below an objective standard of

reasonableness; and (2) this deficiency prejudiced the defense

because in its absence a different result was reasonably probable.

Evans, 186 Ill. 2d at 93. To overcome the latter prong, the defendant

must show a differing result was sufficiently probable as to

undermine confidence in the outcome of the proceeding, thus

rendering the trial result unreliable or fundamentally unfair. Evans,

186 Ill. 2d at 93. Both the performance and prejudice prongs must be

satisfied for the defendant to prevail in an ineffective assistance

claim. People v. Sanchez, 169 Ill. 2d 472, 487 (1996).

Here, the lead opinion did not address the second prong of the

Strickland test because it concluded defendant failed to satisfy the

first prong. Slip op. at 15-16. I believe defendant has met both prongs

of the test and begin my analysis with the first prong: whether the

failure of defendant=s original appellate counsel to appeal the

admission of his July 27 and August 16 statements was objectively

reasonable. In defendant=s first appeal, counsel successfully argued

only that defendant=s August 15 statement should have been barred

under Supreme Court Rule 402(f) as part of plea-related discussions.

Appellate counsel never challenged the admissibility of the other two

statements.

I

As the lead opinion notes, not all statements Amade in the hope of

gaining concessions are plea-related statements under Rule 402(f).@

Slip op. at 19. I agree as well with that opinion=s recitation of the

factors relevant to a determination of the objective reasonableness of

a defendant=s subjective expectations, namely, the nature of the

statements, the defendant=s audience, Aand most importantly here,

what the parties to the conversations actually said.@ See slip op. at 20.

I disagree, however, with the application of these factors and the

characterization of the testimony in this case by the lead opinion and

the special concurrence.

In my view, these analyses apply Rule 402(f) far more narrowly

than this court intended in People v. Friedman, 79 Ill. 2d 341, 351-52

(1980). In doing so, they unduly limit the rule=s application only to

-45-

those statements constituting the skeletal offer to plead and those

stating potential plea terms. In contrast, in Friedman this court

recognized that the Rule also broadly encompasses the parties= plea-

related statements. Friedman, 79 Ill. 2d at 351-52. Before examining

these analytical differences in depth, I present the relevant testimony.

The pretrial hearing on defendant=s motion to suppress spanned

several days and included a great deal of pertinent testimony. In

addition, there was extensive related testimony presented at trial,

including significant evidence supporting defendant=s claim that he

attempted to initiate plea negotiations at the July 27 interview and

made additional plea-related statements on August 16. The

determination of whether a particular statement is plea-related must

be made on a case-by-case basis, making the specific evidence

offered critical to the analysis in this case. People v. Friedman, 79 Ill.

2d at 351-52. For this reason, I set forth much of the relevant

testimony verbatim.

During his pretrial testimony, Officer Young acknowledged that

defendant would Aset down some guidelines or whatever that he felt

was [sic] fair to him, that he would like to see happen.@ More

specifically, Young=s testimony revealed that on July 12, 1993,

defendant Aindicated to [Young] that he didn=t believe it was first

degree murder, that the most it could have been would be

concealment of a body and so forth, things of that nature.@ This

testimony establishes that even on that early date defendant was

discussing with the police his beliefs as to the appropriate charges.

Young=s subsequent testimony demonstrates that defendant=s July

27, 1994, interview unequivocally contained the rudiments of a plea

negotiation:

AQ. *** [A]t that time [July 27] [defendant] hadBhe had

told you, for instance, he would be willing to plead to

Involuntary Manslaughter and so forth, correct?

A. I=m not sure if it was on that date or a date after that to

be honest with you.

Q. Do you have your report right there?@ (Emphasis

added.)

After locating the relevant portion of Young=s report, the critical

testimony concerning the July 27 interview continued:

AA. Yes, that would beBif I could, please. I believe you=re

-46-

correct on that, I just wanted to be sure.

Q. Sure.

A. Yes, sir, that is correct.

Q. Okay. And on that occasion he would, for instance he

said, you know, the most he thought it could be is Involuntary

Manslaughter or concealment, correct?

A. Yes, sir, that=s correct.

Q. And that he wanted you to convey to the State=s

Attorney that he=d accept a ten year sentence and no more,

correct?

A. Yes, sir, that=s correct.

Q. And that he wanted it to run concurrent with the

federal charges he was facing, correct?

A. I believe that=s correct, yes, sir.

Q. And he wanted you to convey these things to the

State=s Attorney I believe, correct?

A. That=s correct.

Q. Okay. And you advised him that you would do that and

you would get back to him, correct?

A. I remember telling him we couldn=t negotiate anything

with him.

Q. Right.

A. But I do remember that I told him we would go back to

our boss and, which at that time was Sergeant Conway, and

convey that to him andB

Q. And you told him you would convey it to Mr. Kelley,

Patrick Kelley, with the State=s Attorney=s Office, correct, also

and get back to the Defendant?@ (Emphasis added.)

After being directed to the appropriate page of his report, Young

stated affirmatively: AA. Yes, sir, that is correct, that=s in my report.@

(Emphasis added.)

These facts alone establish that defendant was attempting to enter

into plea negotiations at the July 27 interview by offering specific

charges and sentencing terms acceptable to him. In addition, Young=s

testimony demonstrates that at that time the police agreed to convey

messages to the State=s Attorney on defendant=s behalf in furtherance

-47-

of his negotiation efforts.

Officer Young also provided support for these conclusions in his

subsequent testimony concerning his August 3 interview of

defendant. He confirmed that during that interview defendant again

brought up his desire to negotiate a plea for a 10-year sentence as

well as his request that his offer be conveyed to the State=s Attorney.

Defense counsel asked whether Young Ahad always advised

[defendant] that [Young] would provide the information and so forth

to the State=s Attorney=s Office,@ and Young answered, AYes, sir, that=s

correct.@ (Emphasis added.) The questioning then returned to a

discussion of the July 27 interview:

AQ. Okay. And just briefly as far as a note thatBdo you

recall a note you were to give to the State=s Attorney=s Office

from [defendant]?

A. I remember when we met with Sergeant Conway after

having [sic] coming back from the taped [July 27] interview

with [defendant] that we told Sergeant Conway about

[defendant] wanting to try to negotiate some terms for B for

himself, and Sergeant Conway requested I believe that when

we returned to have [defendant] read the transcript and that

we ask him I believe to put it into writing as to what he

wanted or what he was wanting to say, and I do believe that

heB[defendant] did do that.@ (Emphasis added.)

Notably, all the relevant testimony given by other police

witnesses verified that they did, in fact, return on August 15 to have

defendant put his prior oral offer in writing, lending further

credibility to Officer Young=s account of all the events that transpired

during the July 27 interview. The officer=s testimonial account was

not limited to the official statements defendant memorialized on the

audio tape recording relied on by the lead opinion and the special

concurrence. The testimony establishes that the July 27 interview

consisted of far more than defendant=s taped statement or even the

discussion that took place when the taping was temporarily

interrupted.

It is also noteworthy that Officer Young=s testimony was given in

June 1996, nearly two full years after defendant made the July 27 and

August 16 statements. After such a passage of time, witnesses=

memories can fade and lose the specific detail critical to the

-48-

determination in this case. After reviewing his official reports,

drafted contemporaneous to the interviews, however, Officer Young=s

testimony concerning defendant=s negotiation efforts was

unequivocal. When viewed in its entirety, this testimony, as

confirmed by the officer=s own timely reports, establishes that, at

least by the time of the July 27 interview, defendant was attempting

to negotiate a plea with the State=s Attorney=s office and that the

police agreed to act as his conduit for information. This evidence

establishes that defendant=s July 27 statements were a Aplea-related

discussion@ under Rule 402(f).

Additional support for the claim that defendant=s July 27

statements were plea-related comes from the testimony of Detective

Williamson, who was also present during that interview. He stated

that prior to the interview defendant had requested Aa note@ from the

State=s Attorney=s office concerning the penalties for various

homicide charges as well as the presence of two tape recorders during

the interview. Detective Williamson testified he and Detective Young

complied with defendant=s requests. Thus, the evidence shows that

defendant asked in advance for information about the possible

charges and penalties he was facing, and, at the July 27 interview,

stated he was willing to plead guilty to involuntary manslaughter or

concealment in return for a maximum 10-year sentence to run

concurrently with his federal prison term. In addition, he provided a

statement intended to show he was not culpable of first degree

murder. These factors neatly fit the mold of a conscious plan to enter

into plea negotiations at that time, and in fact, the testimony

establishes that all the parties involved then believed defendant was

attempting to negotiate a plea.

The special concurrence, however, chooses to examine the

various interviews solely as separate events, disrupting the continuity

of the negotiation process begun at the July 27 interview. As it notes,

evidence also exists showing that defendant offered to plead guilty on

August 3 after reviewing the transcript of his July 27, 1994,

statement. Slip op. at 35 (McMorrow, J., specially concurring, joined

by Freeman, J.). From this evidence, the special concurrence infers a

conflict regarding when the guilty plea first occurred. I believe there

is no necessary conflict. The defendant=s additional negotiation

attempt on August 3 does not negate or call into question the validity

of the prior July 27 testimony clearly showing the plea issue was

-49-

broached then as well. As various officers= testimony established,

defendant raised the plea issue on numerous occasions.

Rather than viewing the series of police interviews as unrelated

entities, I recognize the inherent interrelationship between

defendant=s various negotiation attempts, as did the police at the time

of the interviews. By considering each discrete interview as disparate

from the others, however, the special concurrence attempts to

acknowledge the evidence showing that Aat some point during the

defendant=s meeting with police on this date, defendant tried to elicit

from the officers an agreement that defendant=s actions constituted

some offense other than murder and that he should be charged with

some other offense@ (emphases added) (slip op. at 38 (McMorrow, J.,

specially concurring, joined by Freeman, J.)), while ultimately

concluding his statements were independent admissions (slip op. at

44 (McMorrow, J., specially concurring, joined by Freeman, J.)).

I find it hard to characterize defendant=s admitted attempt to

Aelicit ** an agreement@ from the police as anything other than an

offer to plead guilty to a lesser charge, particularly in light of his

contemporaneous reference to a possible set of sentencing terms. As

the previously quoted transcript excerpts establish, both defendant=s

offer to plead to a lesser charge and his specification of acceptable

sentencing terms on July 27 are readily apparent from the record. The

police themselves believed that defendant was attempting to negotiate

a plea. Under those circumstances, I cannot dismiss the statements

defendant made during that interview addressing his involvement in

Dr. Dickerman=s death and the disposal of the body as Aindependent

admissions@ or mere offers to cooperate.

The context of defendant=s statements shows they were intended

to support his efforts to negotiate a plea to some charge other than

first degree murder. It is difficult to envision why such a purportedly

savvy defendant would make those types of statements unless, in fact,

he made them in support of his attempt to negotiate a plea. We must

not forget that Rule 402(f) does not preclude the admission of only

statements directly offering to plead guilty or present possible terms

and conditions for a plea agreement. Rather, it broadly encompasses

all plea-related discussions, including statements supporting the

defendant=s desired disposition of the criminal case . See 177 Ill. 2d

R. 402(f); Friedman, 79 Ill. 2d at 352-52 (noting that plea-related

-50-

statements are inadmissible under Rule 402(f)). Read in context, I do

not believe the statements concerning defendant=s involvement in this

case can be dismissed as Aindependent admissions.@

I also cannot agree with the special concurrence=s insistence that

the requirement of a prefatory offer does not conflict with our

instructions in Friedman. Slip op. at 28 (McMorrow, J., specially

concurring, joined by Freeman, J.). Indeed, Friedman prominently

discussed the absence of a need for a Apreamble@ before a discussion

may be deemed plea-related. Friedman, 79 Ill. 2d at 352. As we

explained there:

ANor can we agree that the parties must be seated at the

negotiating table before our rule applies. A statement made

as an offer to enter negotiation is indistinguishable from a

statement made at an advanced stage of the negotiation

process in terms of its impact upon a jury. Statements related

to either stage of this process are equally devastating in the

trial of the accused. In determining whether a statement is

plea related, we do not require >a preamble explicitly

demarcating the beginning of plea discussions= [citation].

But where a preamble is delivered, such as defendant=s

inquiry related to >making a deal= in the present case, it

cannot be ignored. [Citation.] This is a clear indication of

defendant=s intent to pursue plea negotiations.@ (Emphasis

added.) Friedman, 79 Ill. 2d at 352.

Given our clear statement in Friedman, I cannot reconcile the special

concurrence=s requirement of a prefatory offer with our precedent.

Finally, I find that the conflicting testimony in the evidence is far

from conclusive in establishing that defendant made negotiation

attempts only after making the statements at issue

The special concurrence also concludes that Aone of defendant=s

motives for requesting the meeting was to learn what the police knew

about his involvement in Dr. Dickerman=s disappearance and what

the police knew about the case of Dr. Dickerman=s death.@ (Emphasis

added.) Slip op. at 39 (McMorrow, J., specially concurring, joined by

Freeman, J.). While that may well have been one of defendant=s

motives in meeting with the police, he could easily have held

additional motives, such as a desire to enter into plea negotiations.

Indeed, the latter possibility is supported by his advance request for

-51-

information on the possible charges and penalties as well as his

subsequent actions during the interview, laying out acceptable terms

and condition. These actions demonstrate a plan to pursue

negotiations. I also note that neither Rule 402(f) nor any cited

precedent precludes a finding that a defendant was attempting to

negotiate a plea merely because he is motivated by self-interest and a

desire to obtain the best possible deal. Those motivations presumably

underlie the negotiation efforts of most, if not all, defendants. Even if

defendant wished to obtain additional information from the police, it

does not negate his simultaneous intent to negotiate a favorable plea.

The record is clear that the police who conducted the interviews

understood that defendant was attempting to negotiate a plea. Indeed,

the detectives acknowledged that they had a mutual understanding

with defendant and that they agreed to Arun the options by the State=s

Attorney.@ The testimony on this point is further supported by their

actions. Although they initially informed defendant they could not

make a deal themselves, they told him they would relay information

to the prosecution to expedite the negotiation process and ultimately

did so.

Moreover, only A[w]here a defendant=s subjective expectations

are not explicit, [do] the objective circumstances surrounding

defendant=s statement take precedence in evaluating defendant=s

subsequent claim that the statement was plea-related.@ Friedman, 79

Ill. 2d at 353. Here, I believe the evidence readily supports the

conclusion that defendant=s subjective expectations were explicit. The

testimony shows that on July 27 defendant asked the police to take

his specified terms and conditions for a possible plea agreement to

the prosecutor for review. That is an explicit expression of a plea

offer. In light of the transcript, I reject the lead opinion=s

characterization of the evidence of a plea offer as minimal, consisting

of only Aveiled references of an offer@ (slip op. at 17 (McMorrow, J.,

specially concurring, joined by Freeman, J.)) and Aonly vague

references to offers to bargain@ (slip op. at 19 (McMorrow, J.,

specially concurring, joined by Freeman, J.)).

Even if defendant=s expectations are viewed objectively, however,

they remain reasonable under the totality of the circumstances. The

record indicates that the police contacted defendant=s family in

Indiana the month before the July 27 interview and told them that if

he was not culpable of murder, he should contact them. With the

-52-

knowledge that he would soon be charged with murder, defendant

asked for information about possible charges and applicable penalties

and requested a meeting, ultimately scheduled for July 27. At that

meeting, he talked to police about the investigation, and he gave them

a list of acceptable charges and sentencing options. The testimony

establishes that the police essentially agreed to act as a liaison to the

State=s Attorney and to convey these express terms for defendant.

Furthermore, at the time they accepted this role, they believed

defendant was attempting to conduct plea negotiations. Objectively

viewed at the time of the statements, the parties= interchange is a

plea-related discussion under Rule 402(f).

As for defendant=s August 16 statements, Detective Cox testified

that he believed that defendant had a subjective expectation that he

was negotiating a plea. He succinctly stated that Adefendant attempted

to negotiate terms for himself@ (emphasis added) at each of the

interviews conducted on August 3, August 15, and August 16.

Detective Cox=s testimony restated with absolute clarity that

defendant had been attempting to negotiate plea terms with the State,

that the police recognized those attempts as plea negotiations, and

that they had been conveying information in furtherance of that

effort. The record shows that, after determining Detective Cox had

interviewed defendant on August 3, August 15, and August 16,

defense counsel specifically inquired into defendant=s negotiation

attempts:

AQ. And all of those occasions [August 3, August 15, and

August 16] [defendant] would indicate and tell you he would

like to work out a deal and so forth, correct?

A. Yes.

Q. And he was attempting to negotiate with you, correct,

or the detectives or at least to have you convey that to the

State=s Attorney=s Office?

A. Yes.

Q. And he was informed that in fact what he had told you

and so forth and the deal he was proposing would in fact be

conveyed to the State=s Attorney=s Office, correct?

A. Yes.

Q. And basically he wasByou were here when Detective

Young testified, he was proposing a deal whereby he would

-53-

be sentenced to ten years concurrent on a federal charge,

correct?

A. Yes.@ (Emphasis added.)

As the lead opinion notes, the most important factor in

determining whether defendant=s July 27 and August 16 statements

were plea-related is Awhat the parties to the conversations actually

said.@ See slip op. at 20. Here, the record is replete with testimony

that defendant repeatedly evinced an obvious and explicit desire to

negotiate that was understood by everyone, as well as an expectation

that his negotiation efforts would be conveyed to the State=s Attorney.

The police substantiate that expectation by readily agreeing to

transmit information and messages between defendant and the State=s

Attorney in furtherance of defendant=s negotiation effort. At each of

the interviews held on July 27, August 3, August 15, and August 16,

the police witnesses stated that defendant was trying to negotiate a

deal and that the officers agreed to participate in the process by

relaying information for him. Even the prosecution recognized these

negotiation attempts in its closing argument to the jury. The record in

this case amply demonstrates that the parties to the conversations at

issue here understood that defendant was attempting to negotiate a

plea and verbally agreed to participate in that effort, defendant by

specifying initially acceptable terms and the police by acting as the

State=s Attorney=s liaison by conveying those terms and any

responses. Defendant=s statements during the July 27 and August 16

interviews flowed from defendant=s subjective beliefs as bolstered by

that mutual understanding. See Friedman, 79 Ill. 2d at 353 (requiring

merely the Arudiments of the negotiation process, i.e., a willingness

by defendant to enter a plea of guilty in return for concessions by the

State@). His repeatedly expressed desire to Amake a deal@ cannot

properly be ignored. Friedman, 79 Ill. 2d at 353.

Furthermore, the special trip the police made to Big Muddy

Correctional Center on August 15 to obtain a written copy of

defendant=s prior oral statement would demonstrate to an objectively

reasonable person that this defendant was, at a minimum, led by the

police to believe he was, in fact, conducting negotiations with the

State=s Attorney through his discussions with the officers.

The serving of a murder warrant on August 16 did not necessarily

alter defendant=s expectations or its objective reasonableness. From a

-54-

practical standpoint, the issuance of a charge is not the necessary end

to all negotiations. In some instances and for a variety of reasons,

plea negotiations may continue or even start after a charge is filed.

Moreover, even though the police served defendant with a murder

warrant, both detective Williamson and Cox testified their purpose in

going to see defendant that day was Ato interview@ him. In fact,

Detective Cox admitted at trial that on August 16 he was Asaying to

[defendant] basically tell us why it=s less than First Degree Murder@

and Awanted [defendant] to explain it in his words why it was less

than First Degree Murder ***.@ Cox also testified that he showed

defendant a book of statutes defining various homicide charges

during the session. This fact was verified by Detective Williamson,

lending credence to defendant=s assertion that the parties were still

conducting negotiations even though the warrant was served during

the interview. Under these circumstances, I conclude that defendant=s

expectations that he was continuing to pursue plea negotiations on

August 16 were objectively reasonable. Overall, I believe the facts

support the conclusion that defendant had a subjective expectation of

conducting plea negotiations on July 27 and August 16 and that this

expectation was objectively reasonable under the totality of the

surrounding circumstances.

II

In addition to differing in my characterization and application of

the facts in this case, I also disagree with the lead opinion=s

interpretation and application of this court=s recent opinion in Hart. I

strongly believe the factual differences between Hart and the instant

case are striking and compel the suppression of defendant=s

statements here. First, as the lead opinion accurately states, Hart

stands for the proposition that A >mere offers to cooperate= @ are not

excluded unless they are accompanied by A > Athe rudiments of the

negotiation process.@ = @ Slip op. at 17, quoting Hart, 214 Ill. 2d at

504, quoting Friedman, 79 Ill. 2d at 353. Here, Officer Young=s

testimony and contemporaneous report establish that defendant was

attempting to enter into plea negotiations at the July 27 interview and

specified acceptable terms at that time, distinguishing this case from

the mere offer of cooperation established in Hart.

Second, the lead opinion states that Hart Aheld that because the

-55-

defendant did not request that the detective initiate contact or convey

terms to the prosecutor or, alternatively, specify the terms he would

require in exchange for pleading guilty, the rudiments of the

negotiation process were not present, thereby rendering the

defendant=s statements admissible.@ (Emphasis added.) Slip op. at 17,

citing Hart, 214 Ill. 2d at 511-12. While I agree that the absence of a

request by the defendant was important in that case because it

provides critical factual background for the court=s ultimate Rule

402(f) determination, the necessity of a request does not constitute a

holding of this court. The absence of a request to involve the

prosecutor was one factor in our decision that Rule 402(f) did not

apply. It was not the sole determinant. We did not hold that

defendants must make that specific request before their plea-related

discussions will be held inadmissible under the Rule. The totality of

the circumstances is still the controlling standard in that

determination.

Applying that standard here, I note that this case presents exactly

the opposite factual scenario from Hart. Here, the police testified

both before and during trial that defendant did ask them to contact the

prosecutor, did attempt to convey possible plea terms to the

prosecutor, and did concretely identify the terms he desired. Contrary

to the lead opinion=s assertion that defendant made only Aveiled

references of an offer@ and that the even the existence of an offer was

unclear (slip op. at 17), the record establishes that defendant made an

express offer to negotiate a plea bargain, going so far on July 27,

1994, as to specify verbally the charges and sentencing conditions he

was willing to accept.

Even the State=s closing argument in the first trial specifically

relied on defendant=s attempts during the police interviews to

negotiate a deal whereby his release from prison for the homicide

would coincide with his release on his forgery conviction. These facts

again distinguish this case from Hart, where the court relied on the

prosecutor=s failure to ever Astate[ ] or impl[y] that defendant offered

to enter into >plea negotiations= or >plead guilty,= which is what Rule

402(f) is intended to prohibit.@ Hart, 214 Ill. 2d at 512. Here,

defendant=s statements, made as part of his acknowledged attempts to

negotiate a plea, were used against him in closing arguments in

contravention of the purpose at the heart of Rule 402(f).

-56-

Thus, unlike Hart, where this court relied on the absence of any

specific evidence that the defendant actually attempted to negotiate a

plea, this case is replete with such evidence. This critical factual

difference readily distinguishes this case from Hart. The testimony

here undeniably established Athe rudiments of the negotiation

process@ (Hart, 214 Ill. 2d at 511; slip op. at 17), mandating a

differing result, namely the exclusion of defendant=s plea-related July

27 and August 16 statements.

III

Although the lead opinion hypothetically accepts Adefendant=s

assertion that he conveyed some offer to bargain on July 27,1994, and

August 16, 1994,@ and proceeds to the next step of its analysis (slip

op. at 17), it then falters again, this time in its interpretation and

application of Friedman. I begin with the lead opinion=s interpretation

of Friedman.

A

The lead opinion concludes that Friedman held Athat no other

possible purpose for the defendant=s statement existed [apart from

plea negotiations]@ (slip op. at 17), but this assertion is unsupported

by the text of that opinion. Friedman is entirely silent on the possible

purposes for the defendant=s statement, stating only that the court did

not Aquestion *** the reasonableness of defendant=s expectations

under the circumstances.@ Friedman, 79 Ill. 2d at 352-53. The opinion

provides absolutely no explanation for that conclusion, and there is

no definitive basis for divining one now. The actual explanation

could be as simple as the parties= failure to argue the objective

reasonableness of the defendant=s expectations. Regardless of the true

reason, the absence of any examination of the Apossible purposes@

underlying the defendant=s statement cannot be properly extrapolated

into the conclusion that the Friedman court held the bare assertion

before it was made solely for the express purpose of plea

negotiations. See slip op. at 17. While that presumptive Aholding@

makes it possible for the lead opinion to distinguish Friedman

conceptually from this case, it is based on pure speculation and

cannot legitimately be used to differentiate the two cases.

The lead opinion makes another interpretive error by advancing

-57-

the proposition that Friedman Aconsidered the admissibility of a bare

offer to plea [sic], nothing more@ (slip op. at 17), contrasting it with

the more robust statements made by defendant here. My examination

of Friedman reveals it does not limit the exclusionary effect of Rule

402(f) to bare plea offers. Indeed, that proposition would be contrary

to common sense and to the language of both the rule and Friedman.

Application of the rule is not restricted to bare plea offers. The rule

precludes the admission of both Aplea discussion[s]@ and Aany

resulting agreement, plea, or judgment.@ 177 Ill. 2d R. 402(f). True to

the breadth of the rule=s scope, Friedman even broadly refers to the

defendant=s bare offer as Aa plea-related discussion.@ (Emphasis

added.) Friedman, 79 Ill. 2d at 352. Surely Rule 402(f) cannot stand

for the proposition that a bare offer to plead is inadmissible while

more detailed plea discussions are properly admitted. By attempting

to distinguish Friedman based on the depth of the parties= plea-related

discussions, the lead opinion unnecessarily restricts the application of

Rule 402(f) and conflicts with this court=s intent in adopting that rule.

As we explained in Friedman, A[t]he purpose of our rule is to

encourage the negotiated disposition of criminal cases through

elimination of the risk that the accused enter plea discussion at his

peril [Citations.] To accomplish this purpose, the boundaries of our

rule must of necessity be delineated in relation to the reasonable

expectations of the accused at the time the statement was made.@

(Emphasis added.) Friedman, 79 Ill. 2d at 351.

AA statement made as an offer to enter negotiation is

indistinguishable from a statement made at an advanced stage of the

negotiation process in terms of its impact upon a jury. Statements

related to either stage of this process are equally devastating in the

trial of the accused.@ (Emphasis added.) Freidman, 79 Ill. 2d at 352.

Although statements deemed inadmissible under the rule must invoke

the Arudiments of the negotiations process@ (Friedman, 79 Ill. 2d at

353; Hart, 214 Ill. 2d at 504), it does not logically follow that

statements encompassing more than the bare rudiments of negotiation

may be admitted. More elaborate statements are inadmissible if they

are Arelated@ to plea discussions. See 177 Ill. 2d R. 402(f) (stating

A[i]f a plea discussion does not result in a plea of guilty, *** neither

the plea discussion nor any resulting agreement, plea, or judgment

shall be admissible against the defendant in any criminal

proceeding@). See also Friedman, 79 Ill. 2d at 351 (recognizing that

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Aplea-related statements@ are protected under the rule).

I believe Friedman is misapplied again in the lead opinion=s

comparison of the circumstances surrounding defendant=s August 15

written statement, previously excluded under Rule 402(f), to his July

27 and August 16 statements. That section appears to assert that

defendant=s August 15 statement was inadmissible because it was

made at the behest of the police, who Avisited defendant for the sole

purpose of obtaining defendant=s handwritten version of the events

for the State=s Attorney=s review@ Afor the sole purpose of

negotiations.@ Slip op. at 20. Thus, according to the lead opinion,

defendant=s oral statements on July 27 and August 16 statements,

unlike his written August 15 statement, were properly admitted

because they were Aunsolicited@ offers not made Aat the direction of

the detectives.@ See slip op. at 20.

While this recitation of the record is facially accurate, the lead

opinion=s subsequent conclusion suffers from two fatal flaws. First, it

ignores the additional fact that defendant had already orally given the

police the same terms as those contained in the August 15 writing. As

the police witness acknowledged, defendant gave the earlier oral

statement with the mutual understanding that it would be conveyed to

the prosecutor as part of plea negotiations. The accuracy of this

depiction of the parties= understanding is amply demonstrated by the

return of the police on August 15 at the behest of the prosecutor to

get the statement in writing. Second, by overlooking the ongoing

nature of the plea discussions in this case as well as the police=s vital

role as a voluntary messenger and focusing instead on the plans and

motives of the police and the State=s Attorney, the lead opinion errs

by effectively making the subjective intentions of the police and the

State=s Attorney the key determinants of the objective reasonableness

of defendant=s expectations. Nothing in our precedent supports that

rationale.

That approach turns the proper analysis on its head and again

leads to a direct conflict with Friedman. In Friedman, not only were

the inadmissible statements entirely unsolicited (Friedman, 79 Ill. 2d

at 350, 352), but they were made to a person the defendant knew was

an investigator on the case and whom defendant had previously

spoken to on a number of occasions (Friedman, 79 Ill. 2d at 350).

The same can be said in the instant case. This court has also explicitly

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declared that the key to delineating the boundaries of Rule 402(f) is

Athe reasonable expectations of the accused at the time the statement

was made.@ Friedman, 79 Ill. 2d at 351. Therefore, it is manifestly

erroneous to use the purely subjective intentions of the police and the

prosecutor to determine the objective reasonableness of defendant=s

expectations. Nonetheless, that is the approach adopted in the lead

opinion.

B

I also dispute the lead opinion=s broad references to defendant=s

statements as Aexculpatory@ and designed to Aexonerate@ him. Slip op.

at 20. To that extent, I agree with the special concurrence=s discussion

of that portion of the lead opinion. Slip op. at 27 (McMorrow, J.,

specially concurring, joined by Freeman, J.). Furthermore, I reject the

role those references play in the lead opinion=s analysis.

Rule 402(f) provides, in pertinent part:

AIf a plea discussion does not result in a plea of guilty,

*** neither the plea discussion nor any resulting agreement,

plea, or judgment shall be admissible against the defendant in

any criminal proceeding.@ (Emphasis added.) 134 Ill. 2d R.

402(f).

Nowhere in the express language of the rule is there a requirement

that to be inadmissible statements must be inculpatory. Conversely,

nowhere in the rule is there a limitation that Apurely exculpatory@

plea-related statements may be deemed outside its scope.

Under the plain language of Rule 402(f), statements constituting

any part of a Aplea discussion@ are barred from admission. The

majority=s resort to this Ainculpatory/exculpatory@ distinction to

bolster its conclusion that defendant=s statements were properly

admitted is not supported by either the language of the rule or

Friedman.

In Friedman, this court used the rule=s broad term Aplea-related

discussion@ in its analysis and correctly applied it to minimal

statements at issue in that case. Friedman, 79 Ill. 2d at 352-53. In

those statements, the defendant did not admit his guilt of the charged

offense or even provide evidence that he had committed any crime,

yet the statements were held to be inadmissible under the

purposefully broad reach of Rule 402(f). See generally Friedman, 79

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Ill. 2d at 351 (explaining that A[i]mplicit in the promulgation of this

rule was our recognition of the significance of the negotiation process

to the administration of justice [citation] and our appreciation of the

devastating effect of the introduction of plea-related statements in the

trial of the accused [citation]. The purpose of our rule is to encourage

the negotiated disposition of criminal cases through elimination of

the risk that the accused enter plea discussion at his peril@). I cannot

find any basis for making a distinction between the admissibility of

statements based simply on the inculpatory or exculpatory nature of

their contents under either Rule 402(f) or Friedman, nor can I support

the application of that distinction here.

C

In addition to my differing legal analysis of Friedman, I disagree

with the lead opinion=s application of that case to the facts here. Thus,

I engage in a brief comparative analysis of factual aspects of the two

cases. My review will necessarily be brief because my prior

discussion has noted a myriad of similarities between the facts in

Friedman and this case. While the circumstances surrounding each

case must be evaluated to determine whether the discussion was plea-

related, I assert that the facts in this case are far more similar to those

in Friedman, where the defendant=s statements were held to be

inadmissible under Rule 402(f), than to Hart, where the defendant=s

statements were admitted because they did not constitute even the

bare rudiments of the negotiation process.

In Friedman, this court found the defendant=s statements

inadmissible despite the defendant=s knowledge that he was speaking

to an investigator rather than the State=s Attorney when he made the

statements. The defendant=s knowledge of the listener=s identity was

established because he had initially called the investigator himself

and left a message requesting a return call on Aa >very urgent= matter.@

Friedman, 79 Ill. 2d at 350. Further emphasizing the defendant=s

knowledge of the investigator=s identity, the same individual had

previously interviewed the defendant approximately three times

earlier.

Similarly, in this case the extensive series of interviews and other

contacts between the police and defendant undeniably establish

defendant=s knowledge that he was not dealing with the State=s

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Attorney when he attempted to negotiate. This knowledge, however,

does not constitute an impediment to finding defendant=s statements

to be plea attempts any more than it did in Friedman, where the

circumstances were analogous.

Moreover, the investigator in Friedman informed the defendant

he had Ano control over@ defendant=s request and even proceeded to

identify the appropriate contact person for defendant. Friedman, 79

Ill. 2d at 350. Thus, there can be no merit to any protestation that a

different outcome is warranted in this case because here the police

were not authorized to conduct negotiations. Indeed, the conduct of

the police themselves belies their asserted inability to participate in

plea negotiations. The police admitted repeatedly relaying messages

and information between their supervisor, the prosecution, and

defendant. In their testimony, the officers readily acknowledged their

role in this communication network as well as their belief that their

willingness to convey information to expedite the negotiation process

comprised part of the parties= Aunderstanding.@

Under these circumstances, as in Friedman, I conclude that not

only did defendant subjectively believe he was engaged in plea

negotiations, but, as in Friedman, that those beliefs were objectively

reasonable in light of the conduct of the police and the State=s

Attorney. The officers involved in the interviews testified that they

believed that defendant was attempting to conduct negotiations. The

prosecutor in the first trial appears to have held a similar belief

because he repeatedly informed the jury of defendant=s negotiation

attempts. Viewed objectively, the combination of the officer=s

agreement to act as a communication conduit and State=s Attorney=s

use of that conduit indicates the objective reasonableness of

defendant=s beliefs. A reasonable person in defendant=s position

would not have known that the officers who have been voluntarily

serving as his link to the State=s Attorney were behaving

disingenuously and actually had no intention of finalizing a plea

arrangement.

Although the officers= conduct may have been prompted by the

hope of winning defendant=s confidence and thereby garnering

additional information, that strategy turns the defensive shield created

by Rule 402(f) into an offensive sword for the State. Defendants

caught in such a strategic twist are not objectively unreasonable for

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unwittingly making potentially damaging statements during their

negotiation attempts. The injustice of such an investigative strategy is

even more manifest where, as here, all the parties involved are fully

aware of the defendant=s subjective beliefs. Upholding the use of this

type of investigatory tactic under those circumstances violates the

purpose underlying Rule 420(f), namely, Ato encourage the negotiated

disposition of criminal cases through elimination of the risk that the

accused enter plea discussion at his peril.@ (Emphasis added.)

Friedman, 79 Ill. 2d at 351.

By failing to recognize that the facts of this case are substantially

more similar to those in Friedman than to those in Hart, the lead

opinion and the special concurrence have started this court down a

path destined to undermine the fundamental protections intended by

Rule 402(f) and upheld in Friedman. If this court wishes to follow the

lead of our federal courts and limit the reach of our rule, it should do

so expressly by changing the language of the rule rather than by

unjustifiably narrowing the application of the existing language. I

cannot silently countenance the latter approach.

IV

After reviewing the record, I find appellate counsel=s decision to

appeal only the trial court=s refusal to suppress the August 15

statement inexplicable. In relevant part, defendant=s posttrial motion

was based on the allegation his statements were inadmissible because

they were made during the course of plea negotiations, and the

testimony soundly supports that argument.

Defendant=s original appellate counsel=s failure to appeal the

denial of defendant=s motion to suppress his July 27 and August 16

statements may have been predicated on an overly narrow reading of

defendant=s posttrial motion, combined with an inadequate

examination of the remainder of the record. In relevant part,

defendant=s posttrial motion argued A[t]hat the court improperly

allowed the State to introduce evidence of plea discussions between

the defendant and the Springfield Police Department, and,

specifically, a note obtained on August 15, 1994, whereby the

defendant set forth what plea agreement he would accept to dispose

of this cause of action.@

Rather than limiting itself to challenging the admissibility of the

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August 15 note, as appellant counsel appears to have interpreted it,

the motion cites both Aevidence of plea discussions@ and the August

15 written statement. Notably, the language in the motion refers to

plea >discussions,@ in the plural, and uses the conjunctive (Aand@)

rather than the disjunctive before Aspecifically@ listing the note. A

careful reading of the motion indicates it challenged the denial of

defendant=s pretrial motion to suppress because the statements were

plea-related. Original appellant counsel, however, appears to have

focused solely on the August 15 note that was specified in the

motion, neglecting to appeal the introduction of the other disputed

statements. Regardless of appellate counsel=s actual intent, this

omission is both inexplicable and unjustified based on a thorough

review of the record, indicating that counsel=s performance fell below

an objective standard of reasonableness.

Cumulatively, defendant=s July 27, August 15, and August 16

statements constituted the strongest evidence the State presented

against defendant at trial. In addition, appellate counsel should have

known the damaging July 27 and August 16 statements would come

in again at a new trial unless defendant could avoid the preclusive

effects of collateral estoppel by overcoming the heavy burden of

showing either special circumstances (see People v. Enis, 163 Ill. 2d

367, 386 (1994)) or a violation of fundamental fairness (see People v.

Gaines, 105 Ill. 2d 79, 91 (1984)).

Although defense counsel possesses broad latitude to choose

appropriate legal strategy in each case (see People v. Fuller, 205 Ill.

2d 308, 331 (2002)), I can conceive of no legitimate strategic

advantage to appealing only one of three damaging, inconsistent

statements, given the surrounding circumstances. Thus, I conclude

the conduct of defendant=s original appellate counsel fell below an

objectively reasonable standard of professional performance.

V

Having determined defendant has met the burden of overcoming

the first prong of the Strickland test, I turn next to the second prong,

requiring a showing of prejudice due to counsel=s deficient

performance (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S.

Ct. at 2064; Evans, 186 Ill. 2d at 93). This determination requires an

examination of the effect of the improperly admitted statements on

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defendant=s trial.

Taken together, defendant=s statements undoubtedly constituted a

substantial factor in his conviction for first degree murder. Indeed,

they were the primary evidence linking him to the death of Dr.

Dickerman. The remaining circumstantial evidence alone provides a

far more tenuous basis for convicting defendant. Recognizing the

importance of defendant=s statements, the State heavily emphasized

them to the jury during trial.

Moreover, conflicts between the statements undoubtedly

prejudiced defendant=s case by undermining his credibility as well as

his trial claim that he was not involved in any way in Dr.

Dickerman=s death. The State meticulously used every opportunity to

point out to the jury the shifting nature of defendant=s account over

time and expressly contended during its closing argument that both

the evidence and common sense established that defendant was a liar

and a schemer. In its closing argument, the State pointed out how

over the course of the interviews defendant Afashioned a little bit

more of a story, and every time he fashioned and drafted and styled

and tailored a new story, it was at odds at what he had said

previously.@ Later, the State explicitly called defendant a liar,

sprinkling the details of his various statements into its closing

argument for support. Finally, in its rebuttal argument, the State

raised the conflicts in defendant=s statements by asking the jury

whether it was Areasonable to lie [at the first opportunity] and then to

lie again and then to in =94 [sic], two years later after he already says,

>Oh, I never had anything to do with the forgeries=, to lie about that

and then plead guilty, and then in 1994 to lie again and to lie again?@

Clearly, the State used the variations in defendant=s statements to the

police to undermine his credibility in a case based exclusively on

circumstantial evidence and inferences.

These factors are sufficient to establish that defendant was

prejudiced by the admission of his July 27 and August 16 statements,

satisfying the second prong of the Strickland test. Having found both

prongs of the Strickland test are met, I conclude defendant=s right to

effective assistance of counsel was violated in his first appeal and

would reverse his conviction and remand the cause for a new trial.

VI

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Because I would remand this cause, it is necessary to consider

whether retrial invokes double jeopardy concerns. The double

jeopardy clause of the fifth amendment to the United States

Constitution and the corresponding clause in the Illinois Constitution

have been construed in the same manner. People v. Moss, 206 Ill. 2d

503, 535 (2003). Both clauses protect criminal defendants against

multiple prosecutions for the same offense. Jones v. Thomas, 491

U.S. 376, 381, 105 L. Ed. 2d 322, 331, 109 S. Ct. 2522, 2525 (1989). In

examining whether there was sufficient evidence to support a conviction

in this case, and therefore avoid subjecting defendant to double jeopardy

on remand, this court may consider all the evidence submitted at the

prior trial, even if it was improperly admitted. People v. Olivera, 164 Ill.

2d 382, 393 (1995). Circumstantial evidence must be reviewed under the

same standard as direct evidence for this purpose. People v. Pollock, 202

Ill. 2d 189, 217 (2002).

Viewing the evidence in the light most favorable to the prosecution

to determine whether any rational trier of fact could have found the

essential elements of the crimes beyond a reasonable doubt (see, e.g.,

People v. Collins, 106 Ill. 2d 237, 261 (1985)), I would hold the

evidence in this case was sufficient. The victim discovered defendant

had forged some of his checks and confronted defendant with this

information in his home shortly before his disappearance. Drops of the

victim=s blood were found in the home, and defendant admitted to

putting the body in the trunk of the victim=s car and disposing of it in

Missouri, where it was found. While defendant did not admit to actually

killing Dr. Dickerman, there was sufficient evidence for a reasonable

jury to find defendant criminally responsible for his death. Thus, double

jeopardy considerations are not implicated, and retrial is permissible. See

People v. Fornear, 176 Ill. 2d 523, 535 (1997).

CONCLUSION

In sum, I would hold defendant=s right to effective assistance of

counsel was violated by his original appellate counsel=s inexplicable

failure to appeal the denial of defendant=s motion to suppress all three of

his potentially damaging statements as part of inadmissible plea

negotiations. Counsel=s failure to appeal the admission of defendant=s

July 27 and August 16 statements fell below an objectively reasonable

standard of performance. Moreover, the improper admission of the

statements prejudiced defendant=s case and seriously undermined the

reliability of his conviction. For this reason, I would reverse defendant=s

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conviction and remand the cause for further proceedings. Under this

disposition of the case, the other arguments raised on appeal and

resolv

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