Docket No. 90282–Agenda 40–May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

						ROBERT D. JONES, Appellant.

Opinion filed Seppttember 20, 2001.

	JUSTICE KILBRIDE delivered the opinion of the court:

	This appeal arises from the second trial of defendant, Robert

Jones, for the murder of Dr. Henry Dickerman. The State charged

that defendant murdered Dr. Dickerman in August 1992. Following

an initial jury trial and guilty verdict, defendant appealed, arguing

that the trial court admitted statements made during plea

negotiations that should have been excluded pursuant to Supreme

Court Rule 402(f) (177 Ill. 2d R. 402(f)). The appellate court

agreed and remanded for a new trial. People v. Jones, 4–96–0855 (1998) (unpublished order under Supreme Court Rule 23).

	On remand, the jury again found defendant guilty of first

degree murder (720 ILCS 5/9–1 (West 2000)) and defendant

appealed. With one justice dissenting, the appellate court affirmed.

315 Ill. App. 3d 500. Defendant now appeals to this court, arguing

that (1) the trial court improperly ruled on a motion for substitution

of judge; (2) the trial court failed to bar additional statements made

during the course of plea negotiations; (3) the trial court erred by

refusing to instruct the jury on involuntary manslaughter; (4) the

State failed to prove a material element of the crime; (5) the trial

court improperly allowed the State to amend the charges against

him; and (6) his conviction should be overturned pursuant to

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We reverse and remand with respect to the first

issue and therefore we need not address the others.

I. BACKGROUND

	In July 1992, Dr. Dickerman hired defendant to repair and

paint his house. Work on Dr. Dickerman’s house continued into

August. On August 12, 1992, when Dr. Dickerman failed to attend

his weekly bridge game, his friends went to his house to check on

him. Dr. Dickerman was not home. His friends noticed nothing

unusual in the house except that his car was missing from the garage. The next day, they returned with Dr. Dickerman’s cousin.

Again, they searched the house to no avail. Police similarly

searched the house and found no signs of forced entry or foul play.

	Dr. Dickerman remained missing. Police eventually learned

that several checks were missing from the doctor’s checkbook. An

ensuing investigation indicated that defendant had deposited

several checks against Dr. Dickerman’s account, including one for

$4,200.

	On September 5, 1992, hikers found Dr. Dickerman’s partially

decomposed body at the bottom of a cliff in Missouri. Dr.

Dickerman’s car was later located in St. Louis at the Lambert

Airport’s long-term parking lot.

	Investigators searched for defendant and finally located him in

October 1992. During the course of their investigation, law

enforcement officers interviewed defendant a number of times,

including on October 6, 1992, July 12, 1993, July 27, 1994,

August 3, 1994, August 15, 1994, and August 16, 1994.

	Defendant was eventually charged with forgery. He pleaded

guilty and was imprisoned. The investigation into Dr. Dickerman’s

death continued.

	In August 1994, the State charged defendant with murder. In

August 1996, following an initial jury trial and guilty verdict, Judge

Leo J. Zappa sentenced defendant to 85 years in prison. On appeal,

defendant argued, inter alia, that the trial court erred in admitting his August 15, 1994, statements into evidence because it was made

during the course of plea negotiations and therefore violated

Supreme Court Rule 402(f) (177 Ill. 2d R. 402(f)). Defendant’s

August 15, 1994, statements stemmed from the July 27, 1994,

interview, when defendant asked the detectives to inform the

State’s Attorney that he would plead guilty to involuntary

manslaughter in return for a 10-year sentence. When detectives

returned to meet with defendant on August 15, 1994, they asked

defendant to write out exactly what deal he would be willing to

accept. Defendant wrote out a two-page statement setting forth the

deal he would accept, and that statement was ultimately read into

evidence at trial. Although the investigators told defendant they

could not negotiate a guilty plea, they indicated that they would relay the information to the State’s Attorney’s office. The appellate

court concluded that defendant’s two-page, handwritten, August

15, 1994, statement clearly demonstrated his willingness to plead

guilty in exchange for concessions and was a plea-related statement

inadmissible pursuant to Rule 402(f). People v. Jones, No. 4–96–0855 (1998) (unpublished order under Supreme Court Rule

23). That decision is not at issue here.

	On March 27, 1998, the State filed a notice of new trial before

Judge Zappa. On March 30, 1998, defendant submitted a motion

for automatic substitution of judge pursuant to section 114–5(a) of

the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/114–5(a) (West 1998)). Judge Zappa denied this motion as

untimely. On April 8, 2001, defendant filed a motion for

substitution for cause pursuant to section 114–5(d) of the Code

(725 ILCS 5/114–5(d) (West 1998)), alleging in part that Judge

Zappa displayed hostility toward him at the close of his initial trial.

Rather than transferring defendant’s motion to another judge,

Judge Zappa denied it as untimely.

	Defendant also filed a motion to suppress, arguing that the

July 27, 1994, and August 16, 1994, interviews were inadmissible

pursuant to Supreme Court Rule 402(f). The trial court denied

defendant’s motion, finding that defendant’s failure to challenge the

July 27, 1994, and August 16, 1994, interviews during his first

appeal precluded a subsequent challenge on remand.

	In June 1998, a jury again convicted defendant of first degree

murder. The trial court sentenced him to 85 years in prison. The

appellate court affirmed. 315 Ill. App. 3d 500.

II. ANALYSIS

	We first consider whether the trial court improperly ruled on

a motion for substitution of judge for cause pursuant to section

114–5(d) of the Code (725 ILCS 5/114–5(d) (West 2000)), rather

than allowing another judge to rule on the motion. Indeed, as noted

previously, Judge Zappa presided over defendant’s first and second

trials and was named in defendant’s motion for substitution. Judge

Zappa refused to transfer defendant’s motion to another judge and

denied it as untimely. We find that defendant’s motion was timely, and therefore the trial court erred in not transferring it to another

judge.

	Section 114–5(d) provides in pertinent part that a “defendant

may move at any time for substitution of judge for cause,

supported by affidavit. Upon the filing of such motion a hearing

shall be conducted as soon as possible after its filing by a judge not

named in the motion ***.” 725 ILCS 5/114–5(d) (West 2000).

This court has repeatedly held that a motion for substitution

pursuant to section 114–5(d) of the Code must be made at the

earliest practical moment after discovery of any potential prejudice. People v. Taylor, 101 Ill. 2d 508, 518 (1984); People v. King, 54 Ill. 2d 291, 297 (1973); People v. Lawrence, 29 Ill. 2d 426, 428 (1963); People v. Chambers, 9 Ill. 2d 83, 89 (1956). The substitution statute should be liberally “construed to promote

rather than to defeat an application for a change of venue,

particularly where prejudice on the part of the judge is charged.”

People v. Smith, 28 Ill. 2d 445, 447 (1963).

	Here, defendant filed his substitution motion before any

substantive rulings had been made in his second trial. The State

agreed that defendant was entitled to have his motion heard by

another judge. Citing People v. Maxwell, 272 Ill. App. 3d 57 (1995), and People v. Emerson, 122 Ill. 2d 411 (1987), Judge Zappa disagreed and deemed defendant’s motion untimely. The

appellate court affirmed with no analysis and without identifying

the motion as one for cause, merely stating that “defendant did not

have a right to automatic substitution of judge from the judge who

presided at the first trial.” 315 Ill. App. 3d at 508.

	In Maxwell, the appellate court found that defendant filed his motion for substitution after the trial started and after the trial

judge ruled on numerous substantive motions. The court therefore

concluded that his motion was untimely and the trial judge was not

required to schedule a hearing before a different judge. Maxwell, 272 Ill. App. 3d at 60. We have similarly deemed motions for

substitution untimely when they were made after the trial judge

ruled on a number of substantive issues. See Taylor, 101 Ill. 2d at 518. For the reasons that follow, we disagree with the trial court’s

application of Maxwell to this case.

	In Emerson, defendant’s conviction was reversed on appeal. Emerson’s second trial was assigned to the same judge. Less than

10 days after remand from the appellate court, defendant filed a

motion for automatic substitution pursuant to section 114–5(a) of

the Code (Ill. Rev. Stat., 1986 Supp., ch. 38, par. 114–5(a), now

725 ILCS 5/114–5(a) (West 2000)). Emerson argued that the trial

judge was prejudiced because he had been reversed on appeal. This

court noted that a request for automatic substitution must be made

before the trial judge rules on a substantive matter. Emerson, 122 Ill. 2d at 424. For purposes of section 114–5(a)’s automatic

substitution provision, we held that remand is considered a

continuation of the original proceedings. Thus, substantive rulings

made in Emerson’s first trial served as substantive rulings in his

second trial and made a subsequent motion on remand for

automatic substitution untimely. See Emerson, 122 Ill. 2d at 424.

	In the instant case, defendant based his motion in large part on

“Judge Zappa[’s] display[ of] hostility toward defendant when he

asserted *** that several detectives perjured themselves during trial

and that the [S]tate had condoned their perjury.” Specifically,

defendant points to a colloquy at his sentencing hearing when the

trial judge stated as follows:

		“And as far as your smack of [the assistant State’s

Attorney] and the police officers, I’m outraged. Your

rights are preserved by the Appellate Court. If you did not

get a proper trial, the Appellate Court will be your

safeguard and ensure that you are given another trial, but

to sit here and say the police officers–it’s like an O.J.

cover-up, everybody was here to get Robbie Jones and I

think that’s basically how you led your life. Everybody

does wrong except Robbie Jones.”

	In denying defendant’s motion, the trial judge essentially

focused on two facts: (1) he had issued substantive rulings in the

first trial; and (2) defendant submitted his substitution motion

during his second trial. The trial court then read Emerson and Maxwell together and concluded that the second trial was a continuation of the first. On that basis, the trial court ruled that

defendant’s motion on remand was untimely because it came after

substantive motions entered during his first trial.

	We disagree with the trial court’s analysis for two reasons.

First, we find that Emerson is not dispositive here. In that case, we considered whether defendant’s motion for automatic substitution

under section 114–5(a) was timely. For purposes of the automatic substitution provision, we held that substantive rulings in an initial trial effectively bar automatic substitution motions on remand. We

made no ruling as to whether the same applies in a substitution for

cause situation. We now hold that it does not.

	We conclude that a substitution for cause motion is sufficiently

different from an automatic substitution motion to warrant a

different approach from that taken in Emerson. As a practical matter, defendants often seek an automatic substitution in the hope

that they may receive more lenient treatment from a different

judge. 5 L. Pieczynski, Illinois Practice §19.80, at 612 (1989). In

contrast, a defendant generally brings a successful substitution for

cause motion only when he or she can prove actual prejudice. 5 L.

Pieczynski, Illinois Practice §19.82, at 614 (1989). In a situation

where a defendant alleges actual prejudice on the part of a judge,

he or she invokes the right to a fair and impartial hearing, a

fundamental tenet of our jurisprudence. Therefore, for purposes of

section 114–5(d), a substantive ruling in an initial trial does not by

itself preclude a defendant from filing a cause motion for

substitution on remand.

	The plain language of the substitution of judge provisions

support our position that section 114–5(d)’s timing requirements

are more flexible than those of section 114–5(a). For example,

section 114–5(d) contains less restrictive language than section

114–5(a). In contrast to section 114–5(a)’s requirements, a

substitution motion under section 114–5(d) does not have to be

filed within 10 days of the trial judge’s call. That is not to say that

a substitution for cause motion is an easy hurdle. Our legislature

has placed a heavy burden on a defendant to justify a substitution

for cause. For example, a substitution for cause petition must be

supported by an affidavit. 725 ILCS 5/114–5(d) (West 2000).

Allegations must also be specific and not conclusory in nature.

People v. Hoga, 109 Ill. App. 3d 258, 260 (1982). Nevertheless, the substitution for cause provision acts as a necessary fail-safe

measure to preserve a defendant’s right to a fair trial in situations where a defendant can show a judge’s actual bias. Construing

section 114–5(d) liberally to protect defendant’s right to a fair and

impartial hearing (see Smith, 28 Ill. 2d at 447), we find that the trial judge erred by failing to transfer defendant’s substitution

motion to another judge, as the statute requires.

	The second reason that we disagree with the result below is

that this is not a case of a defendant’s dilatory conduct in failing to

submit a substitution motion until after the trial court made

substantive rulings. Instead, the exact basis for defendant’s motion arose after the trial court made substantive rulings in the first trial and before it made substantive rulings in the second trial. It is true

that in Taylor we held that a motion for substitution for cause must be timely. Taylor, 101 Ill. 2d at 518. The appellate court in Maxwell similarly noted the timeliness requirement. Maxwell, 272 Ill. App. 3d at 60. We will, however, not require defendant to file

a substitution motion before the trial court issues a substantive

ruling when it would have been impossible. Any other requirement

completely circumvents the safeguard to a fair hearing under

section 114–5(d).

	Our rationale is consistent with People v. McWilliams, 350 Ill. 628 (1932), involving a similar situation under section 114–5’s

predecessor, section 25 of the Change of Venue Act (Ill. Rev. Stat.

1931, ch. 146, par. 25). In that case, we had vacated defendant’s

sentence and remanded to the same judge for resentencing. People v. McWilliams, 348 Ill. 333 (1932). Defendant then sought substitution, essentially arguing that our reversal prompted the trial

court to harbor prejudice toward defendant. The trial court denied

defendant’s substitution motion, deeming it untimely. We reversed,

noting in part that “[t]he facts upon which the application was

based arose largely after the reversal of the circuit court’s first

judgment and the remandment of the cause to that court” and that

“[t]he application, based upon the facts alleged in the petition,

could not have been made at an earlier [time].” McWilliams, 350 Ill. at 633. Therefore, the court concluded that the trial judge

should have granted the petition.

	While McWilliams was decided in part under an earlier version of the substitution statute, the point remains that defendant in this

case could not have submitted his motion for substitution prior to substantive rulings because the alleged cause did not develop until after the trial court issued such rulings. As noted previously, this

court has long held that a motion for substitution pursuant to

section 114–5(d) of the Code must be made at the earliest

practical moment after any potential prejudice is discovered. Taylor, 101 Ill. 2d at 518. We cannot require a defendant to file a motion for substitution for cause prior to the alleged bias.

	We note that we do not depart from our long-standing rule

announced in Taylor that a motion for substitution must be timely. Taylor, 101 Ill. 2d at 518. This rule remains necessary to prevent defendants “ ‘from first ascertaining the attitude of the trial judge

on a hearing relating to some of the issues of the cause, and then,

if the court’s judgment is not in harmony with counsel’s theory, to

assert the prejudice of the court.’ ” Taylor, 101 Ill. 2d at 518, quoting People v. Chambers, 9 Ill. 2d 83, 89 (1956). The judge in this case expressed no indication, through his rulings or his

comments, as to his thoughts on the merits of defendant’s case on

remand. Thus, defendant’s motion was not made in response to an

adverse ruling on an issue. Emerson, 122 Ill. 2d at 424. There is also no indication in this case that defendant filed his motion as a

delay tactic or in an effort to avoid a trial. See People v. Stewart, 20 Ill. 2d 387 (1960). We simply hold that substantive rulings

entered in an initial trial do not necessarily bar a motion for

substitution for cause under section 114–5(d) on remand. We

further hold that a section 114–5(d) substitution for cause motion

is not per se untimely when it is made following a substantive ruling when the alleged cause arises after the substantive ruling. If defendant had submitted a motion for substitution for cause after

the trial court issued a substantive ruling on remand, and after the

alleged cause developed, the rule in Taylor would apply.

	Based on our determination on this issue, we need not address

defendant’s remaining arguments.

III. CONCLUSION

	The trial court erred by deeming defendant’s motion for

substitution untimely and by failing to assign it to another judge.

We find that a substantive ruling made in an initial trial does not by itself bar a subsequent substitution for cause motion on remand.

We further find that a substitution for cause motion is not per se untimely when a trial court issues substantive rulings and adequate

grounds for substitution for cause subsequently arise. We therefore

reverse the judgment of the appellate court, vacate defendant’s

conviction and sentence, and remand for a hearing on defendant’s

substitution motion by new trial judge, followed by a new trial. We therefore

remand this cause to the circuit court for a hearing on defendant'’s

motion for substitution to be heard by a new trial judge. We retain

jurisdiction over this cause and direct that the circuit court report

its findings after hearing the defendant'’s substitution motion to the

clerk of this court within 90 days of the issuance of the mandate in

this case.

Judgments reversedrisdiction retained;

 cause remanded with directions.

	JUSTICE GARMAN took no part in the consideration or

decision of this case.