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
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
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 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