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 (219 Ill. 2d at 19), that the “special-circumstances” exception does not preclude the application of collateral estoppel in this case (219 Ill. 2d at 20-21), and that the State sufficiently proved venue at trial (219 Ill. 2d at 33-35). 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 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. 219 Ill. 2d at 24. 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 “made in the hope of gaining concessions are plea-related statements under Rule 402(f).” 219 Ill. 2d at 28. 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, “and most importantly here, what the parties to the conversations actually said.” See 219 Ill. 2d at 29. 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 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 “set 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 “indicated 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:
“Q. *** [A]t that time [July 27] [defendant] had—he 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:
“A. Yes, that would be—if I could, please. I believe you’re 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 and—
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?” (Emphases added.)
After being directed to the appropriate page of his report, Young stated affirmatively: “A. 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 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 désire 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 “had always advised [defendant] that [Young] would provide the information and so forth to the State’s Attorney’s Office,” and Young answered, “Yes, sir, that’s correct. ” (Emphasis added.) The questioning then returned to a discussion of the July 27 interview:
“Q. Okay. And just briefly as far as a note that—do 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—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 he—[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 audiotape 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 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 “plea-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 “a 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. 219 Ill. 2d at 48 (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 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 “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” (emphasis added) (219 Ill. 2d at 52 (McMorrow, J., specially concurring, joined by Freeman, J.)), while ultimately concluding his statements were independent admissions (219 Ill. 2d at 58 (McMorrow, J., specially concurring, joined by Freeman, J.)).
I find it hard to characterize defendant’s admitted attempt to “elicit *** 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 “independent 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 (noting that plea-related 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 “independent 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. 219 Ill. 2d at 40 (McMorrow, J., specially concurring, joined by Freeman, J.). Indeed, Friedman prominently discussed the absence of a need for a “preamble” before a discussion may be deemed plea-related. Friedman, 79 Ill. 2d at 352. As we explained there:
“Nor 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.” (Emphases 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 “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’s death.” (Emphasis added.) 219 Ill. 2d at 53 (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 information on the possible charges and penalties as well as his subsequent actions during the interview, laying out acceptable terms and conditions. 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 “run 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 “[wjhere 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 added.) 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 “veiled references of an offer” (219 Ill. 2d at 26) and “only vague references to offers to bargain” (219 Ill. 2d at 29).
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 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 “defendant attempted to negotiate terms for himself” (emphasis added) at each of the interviews conducted on August 3, August IS, 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:
“Q. 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 was—you were here when Detective Young testified, he was proposing a deal whereby he would 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 “what the parties to the conversations actually said.” See 219 Ill. 2d at 29. 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 “rudiments 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 “make 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 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 detectives Williamson and Cox testified their purpose in going to see defendant that day was “to interview” him. In fact, Detective Cox admitted at trial that on August 16 he was “saying to [defendant] basically tell us why it’s less than First Degree Murder” and “wanted [defendant] to explain it in his words why it was less than First Degree Murder.” (Emphasis added.) 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 “ ‘mere offers to cooperate’ ” are not excluded unless they are accompanied by “ ‘ “the rudiments of the negotiation process.” ’ ” 219 Ill. 2d at 25-26, 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 “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.” (Emphasis added.) 219 Ill. 2d at 26, 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 “veiled references of an offer” and that even the existence of an offer was unclear (219 Ill. 2d at 26), 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 “state[ ] 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).
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 “the rudiments of the negotiation process” (Hart, 214 Ill. 2d at 511; 219 Ill. 2d at 26), mandating a differing result, namely the exclusion of defendant’s plea-related July 27 and August 16 statements.
Ill
Although the lead opinion hypothetically accepts “defendant’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 (219 Ill. 2d at 26), 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 “that no other possible purpose for the defendant’s statement existed [apart from plea negotiations]” (219 Ill. 2d at 26), 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 “question *** 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 “possible 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 219 Ill. 2d at 26. While that presumptive “holding” 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 the proposition that Friedman “considered the admissibility of a bare offer to plea [sic], nothing more” (219 Ill. 2d at 26), 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 “plea discussion[s]” and “any 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 “a 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, “[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.” Friedman, 79 Ill. 2d at 351.
“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.” (Emphasis added.) Friedman, 79 Ill. 2d at 352. Although statements deemed inadmissible under the rule must invoke the “rudiments 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 “related” to plea discussions. See 177 Ill. 2d R 402(f) (stating “[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 “plea-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 “visited defendant for the sole purpose of obtaining defendant’s handwritten version of the events for the State’s Attorney’s review” “for the sole purpose of negotiations.” 219 Ill. 2d at 30. Thus, according to the lead opinion, defendant’s oral statements on July 27 and August 16, unlike his written August 15 statement, were properly admitted because they were “unsolicited” offers not made “at the direction of the detectives.” See 219 Ill. 2d at 30.
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 declared that the key to delineating the boundaries of Rule 402(f) is “the 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 “exculpatory” and designed to “exonerate” him. 219 Ill. 2d at 29. To that extent, I agree with the special concurrence’s discussion of that portion of the lead opinion. 219 Ill. 2d at 37-38 (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:
“If 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 “purely exculpatory” plea-related statements may be deemed outside its scope.
Under the plain language of Rule 402(f), statements constituting any part of a “plea discussion” are barred from admission. The majority’s resort to this “inculpatory/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 “plea-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 Ill. 2d at 351 (explaining that “[ijmplicit 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 “a ‘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 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 “no 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’ “understanding.”
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 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 402(f), namely, “to 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 “[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 August 15 note, as appellant counsel appears to have interpreted it, the motion cites both “evidence 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 (“and”) rather than the disjunctive before “specifically” 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 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 “fashioned 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 [sic] 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 “reasonable to he [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 he again and to he 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 estabhsh 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
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 conviction and remand the cause for further proceedings. Under this disposition of the case, the other arguments raised on appeal and resolved in the lead opinion would not need to be addressed. Accordingly, I respectfully concur in part and dissent in part.