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People v. Gold-Smith

Court of Appeals of Illinois, Third District

October 22, 2019

ROBERT GOLD-SMITH, Defendant-Appellant.

          Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 12-CF-2338 The Honorable Daniel J. Rozak, Judge, presiding.

          Attorneys for Appellant: James E. Chadd, Peter A. Carusona, and Emily A. Koza, of State Appellate Defender's Office, of Ottawa, for appellant.

          Attorneys for Appellee: James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Lytton and Wright concurred in the judgment and opinion.


          McDADE, JUSTICE

         ¶ 1 After a bench trial, the defendant, Robert Gold-Smith, was found guilty of solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2012)) and solicitation of murder (720 ILCS 5/8-1(b) (West 2012)) and was sentenced to 30 years in prison on the solicitation of murder for hire conviction. On appeal, he argues, inter alia, that (1) the State failed to prove him guilty beyond a reasonable doubt of solicitation of murder for hire and (2) the circuit court erred when it struck his motion for substitution of judge that was filed within 10 days of the case being assigned to Judge Rozak. We reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 On October 11, 2012, attorney Robert Gold-Smith was charged by indictment with solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2012)) and solicitation of murder (720 ILCS 5/8-1(b) (West 2012)). The indictment alleged that Gold-Smith solicited Brian McDaniel to kill Gold-Smith's wife, Victoria Smith, in exchange for money. Gold-Smith and McDaniel were fellow inmates in the Will County Adult Detention Center at the time of the alleged solicitation, and the conversation was recorded by a wire worn by McDaniel.

         ¶ 4 At the time the indictment was returned, Gold-Smith was facing charges for aggravated battery, which stemmed from an incident in which he assaulted Victoria in court after a proceeding on their pending divorce, allegedly punching her in the face several times. One of the police officers who helped restrain him heard Gold-Smith exclaim that Victoria "was messing with him and that he wished he would have did [sic] more to her." That case was assigned to Judge Rozak.

         ¶ 5 On October 17, 2012, the instant case was also assigned to Judge Rozak. While in court that day, Gold-Smith requested his public defender to withdraw so he could proceed pro se until he could hire private counsel. Gold-Smith explained that the public defender had refused to file a motion for substitution of judge, so he believed he was forced to request the withdrawal so he could file the motion pro se. Judge Rozak expressed concern that Gold-Smith, himself, was attempting to abuse the right to proceed pro se by discharging his public defender, filing the motion the public defender did not want to file, and then seeking reappointment of the public defender. Judge Rozak was also concerned that Gold-Smith might inform other inmates that they could use the same ploy to avoid being tried by him. In response to Gold-Smith's assertion that he had a right to file a motion for substitution of judge, Judge Rozak stated, "[i]t is your attorney's right to do that." Judge Rozak denied the motion and continued as the presiding judge on the case.

         ¶ 6 Nine days later, Gold-Smith attempted to file a pro se motion for substitution of judge, alleging that Judge Rozak was biased against him. Judge Rozak struck the motion.

         ¶ 7 After numerous continuances over the next two-plus years, Gold-Smith was eventually allowed to proceed pro se in January 2015. Subsequently, he filed several motions, one of which was a motion to dismiss the indictment. That motion alleged that McDaniel lied about having the solicitation conversation with Gold-Smith and that McDaniel actually fabricated the conversation by providing both his own voice and the whispering voice that he was attributing to Gold-Smith.

         ¶ 8 During the hearing on the motion to dismiss, several witnesses testified. Another fellow inmate of Gold-Smith, Bradley Schlott, testified that in the fall of 2012 (i.e., at the time of the conversation recorded by McDaniel's wire), he was living in the Will County Adult Detention Facility's "B pod" with Gold-Smith. On one day in September 2012, Schlott worked a shift for McDaniel's coworker, who missed the shift while he was in court. The work was done in "A pod," where McDaniel was living. During the shift, McDaniel informed Schlott that he wanted to get moved back to "B pod," where he had previously been living. McDaniel stated that "he had some things that he wanted to do with [Gold-Smith]." Schlott testified that McDaniel also said several times that he was going to get his case dropped and that he was going to be released soon, which Schlott did not believe due to McDaniel's extensive criminal history, including violent acts. Schlott testified that he suspected McDaniel was serving as a snitch.

         ¶ 9 Sometime later, Gold-Smith and Schlott were having a conversation and Gold-Smith stated that McDaniel had been asking him some strange questions. Schlott told Gold-Smith about the conversation he had with McDaniel during the aforementioned work shift and further told Gold-Smith to avoid McDaniel because he might be wearing a wire.

         ¶ 10 Schlott further testified that, subsequently, McDaniel was transferred to "B pod." On one evening in the fall, several days after that transfer, Gold-Smith, Schlott, and fellow inmate Darrell[1] Stephenson were seated in the common area of "B pod" watching television. McDaniel was seated in a chair behind them. Gold-Smith never left his chair, but on several occasions, McDaniel got up, walked over by the pay phones, and returned to his chair. At one point, while seated in his chair, McDaniel appeared to be talking and whispering to himself. At another point, McDaniel got up and walked to his cell. Schlott stated that it appeared to him that McDaniel was talking to himself. Subsequently, a lockdown was called in the facility, and everyone returned to their cells. McDaniel was taken from "B pod," and they never saw him in that section of the jail again.

         ¶ 11 Schlott also testified that 46 people lived in "B pod" and there may have been several other people in the general ...

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