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June 26, 1997


Appeal from Circuit Court of Vermilion County. No. 94CF389. Honorable John P. O'Rourke, Judge Presiding.

Honorable James A. Knecht, J., Honorable Frederick S. Green, J. - Concur, Honorable John T. McCullough, J. - Concur. Justice Knecht delivered the opinion of the court. Green and McCULLOUGH, JJ., concur.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

In September 1994, defendant, James J. Taylor, was charged by two-count information with criminal sexual assault and aggravated criminal sexual assault. 720 ILCS 5/12-13(a)(2), 12-14(c) (West 1994). In May 1996, the trial court granted defendant's motion in limine, barring the State from introducing at trial statements he made during questioning by Danville police investigators regarding an alleged sexual assault. The State appeals. 145 Ill. 2d R. 604(a)(1). Defendant maintains the trial court ruled properly because the statements at issue were part of an unsuccessful plea discussion with police and inadmissible under Supreme Court Rule 402(f). 134 Ill. 2d R. 402(f). We disagree and reverse.

In the afternoon of August 30, 1994, Danville police investigators Gene Woodard and Keith Garrett brought defendant to the Vermilion County public safety building for an interview regarding a sexual assault complaint filed in which the victim named him as her assailant. The investigators also had defendant open the church where the crime allegedly occurred so they could execute a search warrant of the premises. The investigators questioned defendant at the public safety building for approximately 1 hour and 45 minutes.

At the start of the interview, Woodard advised defendant of his Miranda rights and defendant signed and initialed a form acknowledging he understood those rights. Defendant had been an auxiliary Danville police officer for some years and the investigators knew him personally prior to the interview. Defendant denied committing the act under investigation. In the latter half of the interview, defendant told the investigators about a prior occasion when he committed a traffic offense in Bloomington, went to court and pleaded no contest and received only a fine. He then asked the investigators what would happen to him if he pleaded "no contest" to the pending complaint. The investigators told defendant "we have no control over that. We don't do that" and made no promises of leniency to defendant. Defendant neither offered to plead guilty nor asked for any specific concessions. After the interview, defendant was allowed to leave the building. Shortly thereafter, he was arrested and charged with aggravated criminal sexual assault and criminal sexual assault (720 ILCS 5/12-14(c), 12-13(a)(2) (West 1994)).

At his arraignment, defendant pleaded not guilty and requested a trial by jury. In May 1996, defendant filed a motion in limine requesting the State be barred from introducing at trial any statements made by him to the investigators regarding a no-contest plea. The court conducted a hearing on the motion, at which Woodard and Garrett testified. Defendant did not testify. After taking the case under advisement, the court ruled in defendant's favor on the motion, stating:

"The court feels that this statement [(set forth above)] was plea related and that the defendant, under all the circumstances, probably had a reasonable expectation in his own mind of some concession when he made that statement; that he was basically beginning the process of at least some sort of a plea-related negotiation."

On appeal, the State contends the court erred in finding defendant's statement plea related and inadmissible under Rule 402(f). Rule 402(f) provides as follows:

"If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding." 134 Ill. 2d R. 402(f).

The purpose of this rule is to encourage the negotiated disposition of criminal cases by eliminating the risk a jury will hear statements the defendant made while negotiating a plea. See People v. Friedman, 79 Ill. 2d 341, 351-52, 403 N.E.2d 229, 235, 38 Ill. Dec. 141 (1980). The characterization of a defendant's statement as plea related must turn on the facts of each case. Friedman, 79 Ill. 2d at 351-52, 403 N.E.2d at 235; People v. Burns, 188 Ill. App. 3d 716, 722, 544 N.E.2d 466, 470, 136 Ill. Dec. 13 (1989). Not all statements made in hopes of some concessions by the State are necessarily plea discussions. People v. Victory, 94 Ill. App. 3d 719, 722, 419 N.E.2d 73, 76, 50 Ill. Dec. 206 (1981); People v. Rolih, 233 Ill. App. 3d 484, 488, 599 N.E.2d 194, 197, 174 Ill. Dec. 648 (1992). Accordingly, not all statements, however damaging they might be, are insulated within the ambit of Rule 402(f). See People v. Tennin, 123 Ill. App. 3d 894, 897, 463 N.E.2d 202, 204-05, 79 Ill. Dec. 64 (1984) (and cases cited therein).

The relevant inquiries in determining whether a particular statement is plea related are (1) whether the accused exhibited a subjective expectation to negotiate a plea and (2) whether this expectation was reasonable under the totality of the circumstances. Friedman, 79 Ill. 2d at 351, 403 N.E.2d at 235. Despite the fact-specific nature of the issue presented, where, as here, neither the facts nor credibility of the witnesses is contested, the issue is a legal question which a reviewing court may consider de novo. See People v. Garriott, 253 Ill. App. 3d 1048, 1050, 625 N.E.2d 780, 783, 192 Ill. Dec. 625 (1993).

The State contends the trial court erred in finding defendant's statement inadmissible because there was no evidence presented at the motion hearing regarding his subjective intent in making the statement and because any expectation his comments would be considered as plea negotiation was not objectively reasonable under the totality of the circumstances.

First, we examine whether defendant exhibited a subjective expectation of negotiating a plea. Defendant did not testify regarding his subjective expectations in making the statement at issue. Where a defendant's subjective expectations are not explicit, a court may look to the objective circumstances surrounding the statement in evaluating whether it was plea related. ...

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