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Docket No. 97958-Agenda 6-January 2005.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ERIC
L. HART, Appellee.

Opinion filed April 7, 2005.
 

JUSTICE KARMEIER delivered the opinion of the court:

Defendant, Eric Hart, was charged in the circuit court of Macon County with armed robbery and aggravated fleeing or attempting to elude a police officer, pursuant to section 18-2(a) of the Criminal Code of 1961 (720 ILCS 5/18-2(a) (West 2000)) and section 11-204.1 of the Illinois Vehicle Code (625 ILCS 5/11-204.1 (West 2000)). A jury found defendant guilty of both offenses, and defendant was subsequently sentenced to concurrent terms of 20 and 3 years' imprisonment, with credit for 369 days time served. Defendant appealed, arguing he was denied a fair trial when the prosecutor elicited testimony that he attempted to plea bargain and commented on that attempt in closing argument. With one justice dissenting, the appellate court agreed, reversing defendant's convictions. 345 Ill. App. 3d 822. We allowed the State's petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court.

BACKGROUND

Defendant was found guilty at the conclusion of a two-day jury trial. We summarize the evidence elicited and the arguments advanced during defendant's trial to the extent necessary to understand the issues presented.

Brian Nash testified he was working at a Clark Oil gas station located at Oakland Avenue and Ravina Park Road in Decatur, Illinois, at approximately 5:30 a.m. on May 20, 2001, when a man came in wearing pantyhose over his head and robbed Nash at gunpoint. The robber directed Nash to open the cash register and give him the money. Nash complied, handing the man an unspecified amount of money in denominations of $1 and $5 dollar bills. After the man left, Nash called the police. Nash described the robber as a black male in his twenties, approximately 5 feet 11 inches tall, weighing about 160 to 180 pounds, and wearing a black or blue Starter shirt and blue jeans. The police arrived within a minute of his call, and Nash gave them a general description of the robber. Subsequently, Nash was taken to the location where a suspect had been arrested and identified the clothing the suspect was wearing as that worn by the robber. Because of the pantyhose the robber wore on his head, Nash had not seen the robber's face. Nash later gave the police the gas station's video camera surveillance tape. That tape was subsequently admitted as evidence. Nash identified a handgun found outside the station as the one used by the perpetrator.

Decatur police officers Toby Williams and Steve Young testified regarding their pursuit and eventual apprehension of defendant. Officer Williams stated that he received a description of the robber over his radio and observed defendant, who matched that description, driving in the opposite direction on Home Park Avenue near Ramsey. The location described is about midway on Home Park between Ravina Park Road and Division Street. Williams turned his car around and followed defendant. At some point, Williams was joined by Officer Young, who had first encountered defendant at the intersection of Home Park and Center Street. When the officers activated their emergency lights, defendant's car accelerated. In the course of the pursuit, defendant's vehicle reached estimated speeds of between 50 and 70 miles per hour in an area with a posted speed limit of 30 miles per hour. Ultimately, defendant lost control of his vehicle and ran up into the yard of a residence, coming to rest against a downed tree. Defendant got out of the car and started running, but was quickly caught and, after brief resistance, was taken into custody. Defendant had two $5 bills and six $1 bills on his person.

Officers Lonnie Lewellyn and Brian Kaylor testified that they drove Nash to the location where defendant was apprehended and, though Nash could not positively identify the defendant because the robber had worn pantyhose over his head, Nash did say that defendant had the same build and clothing as the offender. At trial, Kaylor identified the clothing worn by defendant: a pair of blue jeans, a black long-sleeved T-shirt with a Starter logo on the front, a white T-shirt, and black tennis shoes. The clothing worn by defendant when he was arrested matched that worn by the robber as seen on the station's surveillance video tape. Officer Lewellyn inventoried the contents of defendant's vehicle and found, on the driver's side floorboard, a pellet gun and $132 in loose currency. Officers Lewellyn and Steve Jostes searched the area around the gas station and recovered a pair of nylon stockings and a .22-caliber pistol in a grassy area nearby. No identifiable fingerprints were found on the handgun.

Former Decatur police detective Michael Beck testified that he interviewed defendant on May 20, 2001, at the Macon County jail. Beck advised defendant of his rights, and defendant "agreed to make a statement." Beck said: "He told me initially that he found out when he was arrested he had a warrant on file that he thought had been taken care of." Beck then told defendant the reason he was there was to interview defendant about an armed robbery and he knew defendant was involved. Beck stated:

"He did not deny being involved but asked me what I could do for him if he cooperated. I advised him at that time I couldn't make any promises to him if he cooperated; however, I would contact the State's Attorney's Office and advise them of his cooperation."

No objection was interposed to the foregoing testimony. Beck testified defendant then asked to make a phone call to his mother. Beck stepped out of the room for a moment so defendant could talk to his mother in private, and, after a short time, reentered the room and spoke to defendant's mother, explaining defendant's circumstances. Defendant indicated he wanted to pray with his mother, which he did. Afterward, defendant said he wanted to think about whether he wanted to talk to Beck or not and advised Beck he would notify him if he wished to make a statement. Beck said he never heard from defendant again.

On cross-examination, Beck acknowledged that defendant had not admitted to being involved in the robbery. Defense counsel then asked, "He just said he was thinking about making a statement to you?" Beck reiterated: "What he said was, he asked me what I could do for him if he cooperated and I told him and he made no other statement regarding that." Prior to concluding his cross-examination, counsel sought to further clarify for the jury the extent to which defendant might have implicated himself:

"Q. He hasn't made a statement one way or the other concerning his involvement or non-involvement with this robbery. Is that correct?

A. That is correct."

Defendant presented an "alibi" defense. Defendant's girlfriend, Jennifer O'Neil, testified that she lived in Decatur, and defendant often spent the night at her residence. O'Neil stated that defendant stayed at her house on the evening of May 19, 2001, and got up the next morning at 5:30 a.m., "as usual." However, she did not know when he left her residence that day. Defendant's mother testified that he "normally" came to her house "three or four" mornings a week to feed her dogs.

Defendant testified that he stayed at O'Neil's residence the night of May 19, 2001, and got up around 5 or 5:30 a.m. on the morning of May 20. At some time unspecified, defendant left O'Neil's residence in his 1984 Oldsmobile. Defendant stated he was en route to his mother's house when the police started following him. After about a block, they activated their lights. Defendant admitted he "kept going." He said he fled because he "didn't have [a] license" and "had a warrant." Defendant also claimed he knew he was going to be arrested, and he was trying to make it to the house of an acquaintance because he "didn't want the car to get towed away off the side of the road.."

According to defendant, his vehicle was struck from behind during the police chase, which caused him to lose control of the vehicle. He then hit a mailbox and his vehicle came to rest on a log in someone's front yard. Defendant said he knew he was going to be arrested, and he was scared, so he jumped out of the car and ran. He was apprehended a short distance away.

Defendant admitted he owned the "BB gun" found on the floor of his car. He further acknowledged there were numerous bills in $1 and $5 denominations seized upon his arrest, though he stated the money was on his person, not in his car. Defendant addressed the presence of numerous $1 and $5 bills, saying they were the fruits of his employment as a barber. He said he charged $5 for a child's haircut and $8 for an adult.

On cross-examination, defendant insisted he had $148, in small denominations, folded up in his back pocket at the time of his arrest. He maintained that he received that money for cutting hair. The following exchange then ensued between the prosecutor and the defendant.

"Q. Whose hair did you cut the day before?

A. That was so long ago. I mean, I can't tell you exactly, but-uh-I mean, there's a lot of people hair [sic] that I cut. That's probably from a whole week's cuts, probably.

Q. Going back to this-uh-was the 20th, the 19th, whose hair did you cut?

A. Cut couple of bunches' hair. Some kids' hair.

Q. How many?

A. I can't remember how many I cut that day.

Q. How many kids? How many adults?

A. I can't remember how many I cut that day."

Defendant was also asked what route he took to his mother's house on the morning of May 20. Defendant described a circuitous route that actually took him in the opposite direction from his mother's house for a significant distance. Looking at a map of Decatur that was admitted as an exhibit, it appears the route defendant described would have unnecessarily doubled the distance to his mother's residence and would have constituted a nonsensical detour. According to defendant, he was headed south when he turned off of Oakland-which would have taken him directly to his mother's house-and traveled several blocks west on Division Street, before turning south on Home Park, intending to go several blocks south, before turning back east and going several blocks back to Oakland. Defendant did not explain why he would have taken such a route. The route he described did, however, supply an explanation why he was on the other side of Decatur, on Home Park Avenue, when he was first spotted by police officers. Home Park Avenue intersects with Ravina Park Road-where the Clark station was located.

On redirect examination, defense counsel asked defendant about the police chase that ended in his apprehension:

"Q. How fast were you going after the police-uh-tried to pull you over?

A. I never did speed from the police officers. I never went over the speed limit.

Q. Okay.

A. And they-I mean, they know that. They made fun about that when they arrested me on the scene. Couple of police officers that was laughing about it; where did he think he was going? He didn't know I knew somebody. If they had let me go, I would have parked the car in her driveway. Dead end area. She been living back there for over 30-some years."

After defendant testified, Officer Lewellyn was recalled to identify, on the Decatur street map, the street upon which defendant's girlfriend lived, and that upon which defendant's mother lived. With that, the evidentiary portion of the case was concluded. The aforementioned street map was admitted as evidence, as was the gas station's surveillance video tape, capturing the robbery in progress.

During closing argument, defense counsel noted that defendant did not make an admission to Detective Beck, that the only thing defendant said was that he wanted to pray. The prosecutor subsequently argued:

"The defendant, also, mentioned the fact that he wanted to pray [with] his mother is not an indication of guilt, but you remember what Officer Beck told you? He didn't just want to pray with his mother. He wanted to know what he would get or what kind of compensation or what kind of agreement or whatever he would get if he cooperated. And, [l]adies and [g]entlemen, only guilty men want to know what they get if they cooperate."

Defense counsel did not object to the prosecutor's comments.

The jury was instructed in the applicable law, including admonitions that closing arguments are limited to reasonable inferences to be drawn from the evidence and are not themselves evidence. During deliberations, the jury again viewed the gas station's security videotape which had captured the robbery in progress. The jury subsequently found defendant guilty of armed robbery and aggravated fleeing or attempting to elude a police officer. Defense counsel did not raise Beck's testimony or the prosecutor's closing argument as issues in a posttrial motion. Defendant was subsequently sentenced to concurrent terms of 20 and 3 years' imprisonment.

In the ensuing appeal, defendant argued he was denied a fair trial when the prosecutor-according to defendant-elicited testimony that he attempted to "plea bargain" and commented on that attempt in closing argument. The appellate court acknowledged that defendant had not properly preserved the issue, but considered the allegation of error under the plain error rule.

The court, with one justice dissenting, held the prosecutor's comment improper and sufficiently egregious to warrant reversal. The majority recognized that care should be exercised in excluding, pursuant to Supreme Court Rule 402(f) (177 Ill. 2d R. 402(f)), a defendant's admissions to police investigators, noting that every "guilty person who voluntarily speaks to a detective probably hopes to benefit from the conversation, either by convincing the detective that he did not commit the crime or by obtaining leniency for his cooperation." 345 Ill. App. 3d at 825. The court agreed that "factual admissions" should not be excluded "on the basis of a mere intention on the part of the accused to help himself by cooperating with the police." 345 Ill. App. 3d at 825. However, the majority observed this case does not involve a factual admission. Rather, it involves what the majority characterized as the prosecutor's suggestion to the jury that defendant "offered to enter into plea negotiations and that offer was an indication of guilt." (Emphasis added.) The appellate majority cited this court's decision in People v. Friedman, 79 Ill. 2d 341, 352 (1980) for the proposition that "[t]he use of technical objections in an attempt to establish that defendant's inquiries have not risen to the level of a 'plea discussion' has been rejected by the supreme court." The appellate court implicitly concluded that defendant had clearly indicated his intent to pursue plea negotiations (345 Ill. App. 3d at 826-27) and stated its belief that the prosecutor's argument regarding defendant's willingness to cooperate ran "counter to the whole idea of Rule 402(f)." 345 Ill. App. 3d at 827. The court noted its "further concern" over Detective Beck's testimony that defendant was silent in the face of Beck's accusation of guilt; however, the court failed to specify how and if that concern figured into its decision to reverse defendant's conviction, which was avowedly based upon the appellate majority's perception of a Rule 402(f) violation.

In dissent, Justice Myerscough pointed out that the majority had ignored various appellate court precedents that appeared to dictate a different result, holding similar statements admissible where they were not clearly plea related. 345 Ill. App. 3d at 828 (Myerscough, J., dissenting (citing People v. Rolih, 233 Ill. App. 3d 484 (1992), People v. Ward, 192 Ill. App. 3d 544 (1989), People v. Burns, 188 Ill. App. 3d 716 (1989), and People v. Tennin, 123 Ill. App. 3d 894 (1984)). Justice Myerscough suggested the majority had mischaracterized the prosecutor's remarks: "[T]he prosecution simply commented that defendant asked what the police officer 'could do for him if he cooperated,' more precisely, what benefits could defendant derive if he cooperated-not if he pleaded guilty." (Emphasis in original.) 345 Ill. App. 3d at 829 (Myerscough, J., dissenting). Justice Myerscough believed the prosecutor's comment constituted permissible rebuttal to defense counsel's assertion in closing that defendant "didn't make an admission to Detective Beck." Justice Myerscough concluded:

"Defendant clearly opened the door, and the prosecutor could properly respond to defense counsel's comments and draw reasonable inferences therefrom. Moreover, it is inconsistent to allow defense counsel to fail to object to Beck's testimony at trial, to comment on the testimony in his closing argument, and then to argue on appeal that the prosecutor improperly used that testimony in his rebuttal argument." 345 Ill. App. 3d at 830 (Myerscough, J., dissenting).

Before this court, the State argues that the defendant's statement to Detective Beck was not plea related and was, therefore, admissible at trial. Consequently, the prosecutor's reference to that statement in closing argument was both proper and invited by defendant's closing argument. Defendant counters that Rule 402(f) was violated, and his right to a fair trial was compromised, by Detective Beck's testimonial comment on defendant's post-Miranda silence and his "attempt to pursue plea negotiations." Defendant contends the error was magnified when the prosecutor argued in closing, "only guilty men want to know what they get if they cooperate."

ANALYSIS

Initially, we note, as did the justices of the appellate court, that defendant neither objected to the evidence or prosecutorial comments in question at the time of trial, nor raised issues relating thereto in a post-trial motion. However, the appellate court excused the default, under the plain error rule, holding that the prosecutor's violation of Rule 402(f) denied defendant a fair trial. 345 Ill. App. 3d at 824-27. We disagree with the appellate court.

Our purpose in promulgating Supreme Court Rule 402(f) was to encourage the negotiated disposition of criminal cases by eliminating the risk that juries will hear statements or admissions made by defendants during plea negotiations. Friedman, 79 Ill. 2d at 351. To that end, Rule 402(f) provides:

"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." 177 Ill. 2d R. 402(f).

Our rule is similar to the previous version of Rule 410 of the Federal Rules of Evidence, which provided in pertinent part:

"Except as otherwise provided in this rule, evidence of *** an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing *** offers, is not admissible in any civil or criminal proceeding against the person who made the *** offer." Fed. R. Evid. 410.

Rule 410 has now been changed so as to require-for purposes of exclusion-that the statement be made "in the course of plea discussions with an attorney for the prosecuting authority." (Emphasis added.) Fed. R. Evid. 410. But see United States v. Grant, 622 F.2d 308 (8th Cir. 1980) (extending coverage under the rule to statements made to law enforcement agents who have express authority to act for the prosecuting government attorney). However, when this court rendered its decision in Friedman, we noted the then-existing similarities between the state and federal rules when we recognized the need to establish decisional boundaries "in relation to the reasonable expectations of the accused at the time the statement was made." Friedman, 79 Ill. 2d at 351. To that end, this court cited, approvingly, the decision of the federal court in United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978), and adopted the two-part test utilized in that case to determine whether a particular statement is plea related. Pursuant to that test, 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. Friedman, 79 Ill. 2d at 351. This court stated: "Because of the substantial similarity in the purpose of the Federal rules, we find this analysis equally applicable to the determination of when a statement is plea related under our rule." Friedman, 79 Ill. 2d at 351.

This court further observed: "Before 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." Friedman, 79 Ill. 2d at 353. To illustrate that point, this court invited a comparison of United States v. Pantohan, 602 F.2d 855 (9th Cir. 1979), United States v. Levy, 578 F.2d 896 (2d Cir. 1978), and United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978), with United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976), and United States v. Smith, 525 F.2d 1017 (10th Cir. 1975). Examination of those cases is instructive for present purposes.

In both Smith and Brooks, it was held that the rudiments of the negotiation process were present, and exclusion of plea-related statements was thus mandated. In Smith, defendant informed an interrogating officer that he "wanted to talk *** about *** making a deal." Defendant indicated he would enter a plea of guilty to federal charges so long as he could spend his period of incarceration in a federal, rather than state, facility. Smith, 525 F.2d at 1019-20. The Smith court concluded that the foregoing statements were indicative of plea bargaining. Smith, 525 F.2d at 1022. In Brooks, defendant telephoned a postal inspector and offered to plead guilty to certain charges if he were given a maximum sentence of two years. Brooks, 536 F.2d at 1138. The Brooks court noted that offers to plead guilty are "generally considered a part of plea negotiations and are ordinarily inadmissible." Brooks, 536 F.2d at 1138. The Brooks court stated that "even an attempt to open plea bargaining (which is what we have in this case) should be covered under the *** rule of inadmissibility." Brooks, 536 F.2d at 1139. The court's opinion suggested a harmless error analysis might have been appropriate, but the court could not "say that admission of appellant's offer was harmless." Brooks, 536 F.2d at 1140.

When one compares Brooks and Smith with Pantohan, Levy, and Robertson, it becomes clear that this court never intended Rule 402(f) to exclude as evidence mere offers to cooperate with the police, at least where the offers were not accompanied by "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." See Friedman, 79 Ill. 2d at 353.

In Pantohan, defendant confessed to the crime of which he was accused and cooperated with federal agents to the extent of providing general information regarding the criminal activities of others. He was told that the prosecutor would be told of his cooperation, but the information was never communicated to the prosecutor. Defendant subsequently argued that his statements to the agents should have been suppressed, as they were made during plea bargaining. The court of appeals rejected that contention, stating:

"Pantohan apparently felt that cooperating with the ATF agents was 'the only way out.' However, he knew that he was not under arrest at the time of the statements, there was no 'promise' other than to tell the United States Attorney of the cooperation, and there was no plea offer[,] no plea bargaining. Since the statements were not made during plea negotiations, they do not require suppression." Pantohan, 602 F.2d at 857.

In Robertson, defendant Robertson and his codefendant, Butigan, were arrested on drug charges and, shortly thereafter, offered to cooperate with federal agents in exchange for the release of, or leniency for, their female companions, who had also been arrested. Robertson and Butigan were told only that their cooperation would "probably help *** out in the long run" and that the agents would "make it known to the Judicial Authorities." Pursuant to their offer of cooperation, Robertson and Butigan then admitted their own involvement and stated emphatically that the women were not involved. Robertson, 582 F.2d at 1359-61. Robertson later claimed that his conversations with the agents constituted plea negotiations. The court of appeals rejected that contention. The court observed:

"[A]pplication of Fed. R. Crim. P. 11(e)(6) and Fed. R. Evid. 410 to circumstances such as those presented in this case would have a substantial adverse effect on important law enforcement interests. It is reasonable to assume that the cooperation of an arrested person often is prompted by a desire for leniency for himself or others. Statements or confessions made in such circumstances, if they are voluntary and made with full awareness of the person's rights, are reliable, probative and constitutionally admissible evidence. See 18 U.S.C.A.