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 agree— whether 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 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 “exculpatory” (see 219 Ill. 2d at 27, 29) 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 “exculpatory.”
I also disagree with the analysis employed by the lead opinion to support its statement that “objective 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 219 Ill. 2d at 29. The lead opinion reasons:
“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 himself—defendant 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.” 219 Ill. 2d at 29.
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 murder—defendant’s statements were inculpatory as to other criminal offenses. Defendant did desire leniency in the respect that he was hopeful of convincing 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 “he did not commit a crime.” See 219 Ill. 2d at 29. 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 conclusion—that testimony presented at the June 1996 hearing on defendant’s motion to suppress “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.” See 219 Ill. 2d at 64 (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 “rudiments 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, “establish” that the statements defendant seeks to suppress were plea-related discussions under Rule 402(f). See 219 Ill. 2d at 64 (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 is an “inherent interrelationship” (see 219 Ill. 2d at 65 (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 “plea negotiations.”
I also do not agree with the dissent that Friedman’s holding that “ ‘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 219 Ill. 2d at 67 (Kilbride, J., dissenting), quoting Friedman, 79 Ill. 2d at 352. Nor do I agree with how the dissent interprets Friedman when it states that “only ‘[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.) 219 Ill. 2d at 68 (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 219 Ill. 2d at 81 (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, “ ‘[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 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 “inquiries,” i.e., that the defendant in Friedman inquired into “making a deal” and that the defendant in Hart inquired into “what 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 “plea 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 “the 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. 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 note4 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 blood spatter, 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 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 “rated” 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 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. Dicker-man’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 “note” 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 “note.” 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 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 “preview” 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, “I know you don’t have the murder weapon.” Defendant also asked the detectives about blood in the upstairs bathroom—a 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 living room. Defendant then said, “I don’t—in 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, “I 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 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. Dicker-man’s home, placed the body in the trunk of Dr. Dicker-man’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, “I 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 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:
“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.” 177 Ill. 2d R. 402(f).
Since the rule provides that “plea 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 “what 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, “Ladies 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 “plea 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 “rudiments 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 “subjective 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 defendant did make an offer which contained the “rudiments 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 “plea 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 “devastating 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 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. Dicker-man’s disappearance and what the police knew about the cause of Dr. Dickerman’s 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 “test” 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 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 “plea discussion.” I would answer this question in the negative. In People v. Friedman, 79 Ill. 2d 341, 353 (1980), this court held “there 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 “where 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:
“Plea 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 E2d 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 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 “unilateral” 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, 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:
“Officer Cox: Mr. Jones, in the other interviewf,] 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 murder—what 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 [sic] 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:
“Detective 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 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 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® 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®. 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.
The contents of this note is reported, in full, in the lead opinion. See 219 Ill. 2d at 11.