## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Rivera , 2013 IL 112467

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellant, v. J OSE RI VERA, Appellee

.

Docke t No. 112467

Filed Rehea ringdenied Fe bruar y 22, 2013 Marc h 25, 2013

Held ( Note : Thi s syl lab us
con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e

rea der

. ) Where there was unobjected- to testimony that a sex-offense suspect told custodial interrog ators that he w anted guara ntees a nd probation and did not want to g o to jail, but was told he could not be offe red any g uara ntees, and wher e the prosec ution arg ued that these statements wer e inculpatory

as admissions of g uilt, a claim of pl ai n er ro r in the admission of plearelated statements was reje cted wher e there was no showing of his intent to plead guilty

in exchang e for

any thing.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Circuit Court of Cook County , the Hon. L awr ence W. Terr ell, J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed. Cause re manded.Counsel on

Appea l L isa Madig an, Attor ney Gene ral, of Springf ield, and Anita Alvare z, State’s Attorney , of Chicag o (A l an J

. Spellberg and Peter D. Fische r, Assistant St ate’ s Attorney s, of counse l), for the People.

Donna Hic kstein-Fole y , of F oley & F oley , of Chicag o, for a ppellee.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion. Chief J ustice Kilbride and J u s ti c e s F r e e ma n , T h o ma s , Gar

man, Kar meier, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 Following a jury trial in the circ ui t co u rt o f Cook County , defe ndant J ose Rivera wa s convicted of three counts of predatory crimin a l s e xual assault, three counts of criminal sexual assault, five counts of ag g ravated criminal sexual abuse, and one count of possession of child pornog raphy

. The appellate court reve rsed defe ndant’s convictions and rema nded for a new trial based on the improper admittance of plea-related statements at trial. 409 I ll. App. 3d 122. On appea l to this court, the State argues that defe ndant’s custodial statements wer e not plea related and, thus, wer e admissible. Def endant argues that we should aff irm the appellate court’s judgme nt. I n the alternative, he cross-a ppeals, arguing that the trial court improperly disqualified his defe nse counsel. For rea sons that follow, we hold that the trial court did not

err in admitting defe ndant’s statements beca use they wer e not plea- related discussions. We also reje ct defe ndant’s claim in his cross-appea l. Acc ording ly , we reve rse the appellate court’s judgme nt and rema nd to the appellate court to addre ss the rema ining issues raised by defe ndant.

¶ 2 BA CKGROUND ¶ 3 At trial, the State pre sented testimony that defe ndant re peate dly sexually assaulted and sexually abused his stepdaug hter, J .M., beg inning when J .M. was 11 y ea rs o ld, and continuing until J .M. was 14 y ear s old. T he State also introduced testimony that defe ndant sexually abused J .M.’s friend, 13-y ear -old J. T

. T h e a p p e llate court opinion descr ibes in detail the evidenc e introduced at trial. For purposes of this appea l, we will set forth only those fac ts which ar e nec essar

y to resolve the issues r aised by the par ties. ¶ 4 Def

endant filed a written pretria l motion to suppress cer tain statements made to a police office r and an assistant State’s Attorney afte r he was in custody but be fore any char g es had been filed ag ainst him. Prior to t h e s u p pression hear ing, the State moved to disqualify defe ndant’s counsel, Michae l Clancy , who was listed as a witness in defe ndant’s motion to suppress. Attorney Michae l Gog g in appea red on defe ndant’s b eh al f at the suppression hear ing. T h e trial court gra nted t he mot ion to disqualify Clancy as defendant’ s attorney of

-2-rec ord, finding that the written motion to suppress rende red Clancy a materia l witness. The

court orde red G og g in to substi tute on the motion to suppress. ¶ 5 Clancy testified at the suppression hear ing as defe ndant’s only witness. He testified that he went to the police station twice to meet with defe ndant, and that defe ndant signe d a form prepa red by Clancy which stated defe ndant was asser ting his rig ht to rema in silent. The State prese nted testimony t h at defe ndant waived his rig hts prior to the two interviews in which defe ndant made statements. Following the h ea ri ng , the trial court denied the motion to

s u p p r e s s , f in ding that defe ndant knowing ly , intelligently , and v o lu nta r il y w a iv e d h is M

ir a n d a rig hts prior to making the statements. The defe nse subsequently filed a motion to rec onsider the cour t’s disqualification of Clancy , which the c ourt denied. ¶ 6 At trial, Fr anklin Park Police Detec tive Michae l J ones testified that defe ndant was take n into custody at the police depar tment on October 22, 2004. At 6:06 p.m., Detec tive J ones
rea d defe ndant his Miranda rig hts in an interview room, and defe ndant ag ree d to speak with him. Detec tive J ones stated t h at h e wa s in and out of the room as the investigation was ong oing. On October 23, at 2:04 a.m., Detec tive J ones went b ack into the interview room with defe ndant. Only the two of them wer e prese nt. Detec tive J ones testified that t he following conver sation occur red: “Q. What did y ou say

to him?
A. I told him that his troubles had just g otten bigg er. That not only was there one victim that we knew about[,] his stepdaug hter that he had been having sex with, now
we knew there was a g irlfriend of hers, [J .T.], that he also had been having sex with.
* * * Q. After y ou said this to the defe ndant, what if any thing did the defe ndant do or say ?
A. He asked me if he g ave a confe ssion what g uara ntees would he have and I told him that he could have no g uara ntees whatsoeve r. I couldn’t promise him any thing.
Wit h that he said, I will tell you what. I will g ive y ou a confe ssion. J ust g o g et me another g lass of water. With that Ileft the room.”
After Detec tive J ones left the room to g et defe ndant a g lass of water , the conver sation with defe ndant was te rminated. ¶ 7 Detec tive J ones testified that , l at er t h e s ame day , at approximately 9:14 p.m., he had another conver sation with defe ndant, along with Assistant State’s Attorney Br ad Gig lio. 1 Detec tive J ones aga in rea d defe ndant his Miranda rig hts. Defe ndant waived his rig hts and ag ree d to speak with them. De tective Jones testified to the following conver sation:

I t was est abl is hed at the sup pre ssi on hea ri ng t hat def end ant re que st ed to spe ak wit h 1 Det ect ive J one s.

-3-“Q. Now, afte r t he defenda nt agre ed to speak with y ou and the assistant state’s attorney in the interview room, what if any thing did the defe ndant say to the two of y ou?
A. He w anted to know that he had g uara ntees that he wa s not goingto jail if he spoke to us. Q. What did the assistant state’s attorne y say about that? A. Told him that he could not be g iven any guara ntees. Q. And when he was told by the assistant state’s attorney that he would not be g iven any g uara ntees, what did the defe ndant say at that point?
A. He said he was torn. That he wanted to do the rig ht thing but that h e wa s
scar ed that he w as g oing to g o to jail. Q. And did y ou or the—e x cuse me

. Did y ou or the assistant state’s attorney indicate to him that y ou could not offe r g uara ntees to him?
A. That’s c orre ct. Q. At that time was the inter view ter minated?
A. Yes.” ¶ 8 Gig lio testified that in October 2004, he was an assistant State’s Attorney assig ned to the child exploi tation unit of the sex crimes division. He testified that he and J ones met with defe ndant on October 23 at approximately 9 p.m. Giglio identified himself to de fenda nt as

an assistant State’s Attorney and told him that he was a prosec utor and not defen d an t ’s lawy er. D efe ndant re ad and signe d a for m waiving his Miranda rig hts and ag ree d to speak with them. Giglio testified that the f ollowing c onversation occurr ed: “Q. All rig ht.
And af ter you g ot that established, what did the de fenda nt say to y ou?
A. He said he wanted to talk about what happened. That he wanted g uara ntees from us. Q. Did he tell y ou what kind of g uara ntees he wanted from y ou and Investig ator J ones?
A. Yes. H e wa s adama

nt about not wanting to do any jail, about wantingto ge t probation. He said he would talk to us about what we wer e there to talk to him about if he had those guara

ntees. I told him that I couldn’t g ive him that guara ntee. I tried to find out basically

what he w anted to talk about s pecif ically , and I

told him t hat I had talked w ith [ J .M.] and that she had told me what ha ppened.
I told him that I had talked with [J .T.] and she had tol d me what happe n ed and

-4-Iasked him to tell me about that. He is like, well, I will talk to you about it. I don’t want to g o to jail. Idon’t want to g o to jail.
I said, well, if y ou don’t want t o t el l me about that, then just tell me wher e the hard dr ive is. He said, I

want a guara

ntee. I told him, I can’ t give y ou a guara ntee. Q. Did y ou tell him why

y ou couldn’t g ive him a guara ntee?
A. Yes.
I told him I wanted to hear what he had to say specific ally

. I told him that I don’t want to g ive him a g uara ntee so th at h i s

—what he tells me is only beca use he is g etting this g uara

ntee. L ike I don’t want it to be coer ced. I don’t want it to be prese nted at a trial that he was promised this and that’s the only rea son he said X, Y, Z

. I did tell him that I spoke with both of the g irls separ ately

. That they told me that he had done the same things. I said, y ou know, to try and g et him to tell me. And he said, Iwant a guara

ntee. I want probation. Idon’t want jail.
* * * Q. Well, was there a rea son in terms of y our job descr iption or your employ ment why y ou could not g ive a guara ntee or make de als with the defe ndant?
A. Well, I don’t want whateve r statement that I g et from him to be useless if it is not fre ely g iven, if it is not something that he is choosing to gi v e m e, y ou know, outside of any

coer cion on my

part.
I took my job very seriously

. Obviously from my previous jobs, it is pretty clea r that, I mean, I am a straig ht arr ow. I do things, y ou know to the best of my ability by the book and I wanted to make sure that any statement that he g ave to me was—would be admissible, would not be tainted, wo u ld be, y ou know, something that he chose to give

. * * * Q. And did he make any statement perta inin g t o—did he say any thing else reg ardingthe situation of the ca se only ?
A. No.
At a ce rtain point he terminate d the dialogue.”
Def endant did not object to any of the afor ementioned testimony g iven by J ones and Gig lio on the basis that the stateme nts were part of a plea- related discussion. ¶ 9 Def

endant testified on his own behalf

. Def endant denied that any sexual activities, sexual assault, or sexual abuse occur red with J .M. or J .T. He denied making any statements to Detec tive J ones or Assistant State’s Attorney Gig lio and further denied that he had ever met Gig lio.

-5-¶ 10 The State made sever al ref ere nces to defe ndant’s custodial statements during opening statements and c losing a

rguments. I n its opening state ment, the State told the jury : “And, eventua lly , y ou will lear n that [defendant] made some statements to the police, and was try

ing to br oker a

deal with the police in exchang e for telling them what re ally

happene d during 2002 to 2004.” Duringclosing arguments, the State arg ued:
“De tective Serg eant J o nes testified that the defe ndant said if he g ave a confe ssion, what guara

ntees did he have? I f he g ave a confe ssion, what g uara ntees? He was told none. He also told Detec tive J ones that he wanted to g ive a statement but he rea lly wanted those g uara ntees ***. What did the defe ndant tell ASA Gig lio? The defe ndant wante d a guara ntee he was not g oing to jail. He wanted pr obation.”
In its rebuttal argument, the State ar g ued:

“And finally afte r [J .T.] was contac ted, Investig ator J ones said, Well, I think y our problems have just g otten a little bit more complicated. D o y ou know a g irl named [J .T.]? You know what? Her e’s what he say s : I f I g ive y ou a confe ssion, what g uara ntees do I have? I will give you a conf ession, but first I

want a g lass of water

. That’s inculpatory . That’s a n admission.
Of course , the defe ndant denie s t h at

. He won’t even admit that he met Br ad Gig lio befor e, never saw him, never hear d about hi m, even though their signatures

are rig ht next to eac h other, never saw him, never hear d from him. I s Br ad Gig lio lying too? Br ad talked to him. He sa id, Iwant you to give me some guara ntees. I ’ll tell you, I fee l bad, I fee l bad. I want to do the rig ht thing, but I ’m scar ed and I don’t want to g o to jail. Br ad said, y ou know, we can’ t g ive y ou any g uara ntees. That’s not how we ope rate . Those ar e admissions. Admissions of guilt.” ¶ 11 At the close of the evidenc e and arguments, the jury convicted defe ndant of three counts of pre datory

criminal sexual assault, three counts of cr iminal sex ual assault, five counts of ag g ravated cri m i n al sexual abuse, and one count of possession of child pornog raphy

. Def endant wa s sentence d by

the trial cour

t to 75 y ear s’ imprisonment. ¶ 12 Def

endant raised a number of issues on appea l, i n cl u d i n g t h at s t at em en t s made by defe ndant while in custody wer e inadmissible plea- rela ted discussions, in v io la

ti o n o f I ll inois Supreme Court Rule 402(f) (Ill

. S

. Ct. R. 402(f) (ef f. J uly 1, 1997)). The appellate court

reve rsed defe ndant’s conviction s and rema nded for a new trial based upon the improper admittance of plea- related statements at trial. 409 I ll. App. 3d at 136-37. The court found that the trial court’s admission of the plea- related s t at em en t s was plain err or under the second prong of the plain-er

ror doctrine based on the “potentially d ev as t at i ng eff ect” of the evidenc e. Id. at 136. Of the rema ining issues raised by defe ndant, the court commented upon
sever al issues which might occur upon retria l and declined to addre ss other issues which the court found would be moot upon retria l. One of the issues commented upon was whether the trial court improperly disqualified defe ndant’s orig inally reta ined counsel, Michae l Clancy ,

-6-from repr esenting defe ndant. Id. at 142-43. The court found that the trial court did not abuse

its discretion in disq u al i fy i n g Clancy on the basis that the State might call Clancy as a witness at trial, thus cre ating a ser ious potential for a c onflict of intere st. Id. ¶ 13 We allo we d t he State’s appea l pursuant to Supreme Court Rule 315 (I ll. S. Ct. R. 315 (ef f. F eb. 26, 2010))

.

¶ 14 ANALYSI S ¶ 15 I . Plea-Relate d Discussion ¶ 16 Supreme Court Rule 402(f) provides:

“I f a plea discussion does not result in a plea of g uilty , or if a pl ea o f gu i l t y is not

acc epted or

is withdrawn, or if judgme nt on a plea of g uilty is rever sed on direc t or collater al revie w, n ei t h er the plea discussion nor any resulting ag ree ment, plea, or judgme nt shall be admissible ag ainst the defe ndant in any criminal proce eding .” I ll. S. Ct . R. 402(f) ( eff

. J uly 1, 1997). ¶ 17 At issue is whether defe ndant’s custodial statements introduced at trial wer e part of “plea d i scussions,” within the meaning of Rule 402(f)

. I f so, the statements wer e impr o p er l y admitted into evidenc e, and the jury should not have been allowed to consider t h em. Def endant failed to object to the testimony at trial or include the issue in his written posttrial motion. Acc ording ly , defe ndant has proce durally defa ulted the alleg ed err or in admitting the testimony unless we conclude that plain err or aff ecting a substantial rig ht has occur red. See People v. W

illiams , 193 I ll. 2d 1, 26-27 (2000); I ll. S. Ct. R. 615(a)

. In order to obtain relief , defe ndant must establish that a clea r or obvious err or occur

red. People v. Hillier , 237 I ll. 2d 539, 545 (2010). For the following rea sons, we hold that there was no clea r or obvious err or in allowing the testimony reg arding defe ndant’s custodial statements. Moreove r, beca use the

s t at em en t s wer e not made as part of a plea discussion pursuant to Rule 402(f) , they wer e admissible as evidenc e of de fenda nt’s independe nt admissions. ¶ 18 The purpose of Rule 402(f) is “to encour ag e the neg otiated dispositi on of criminal case s throug h elimination of the risk that the acc used enter plea discussion at his peril.” People v. Friedman , 79 I ll. 2d 341, 351 (1980). This court has adopted a two-par t test for deter

mining whether a p ar t i cu l ar statement is plea related, with both a subjective and an objective component. W e conside r, “f irst, whether

the ac cused e x hibited a subj ective expectation to neg otiate a plea, and, second, whether this expectation was rea sonable under the totality of the objective circ umstances.” Id. (citing United States v. R obertson , 582 F.2d 1356, 1366 (5th Cir. 1978) (e stablishing test under the then-e x isting fe dera l rules)). ¶ 19 Not all statements made by a defe ndant in the hope of obt ai n i n g conce ssions are plea discussions. People v. Jones , 219 I ll. 2d 1, 28 (2006); People v. Rolih , 233 I ll. App. 3d 484, 488 (1992); People v. Victory , 94 I ll. App. 3d 719, 722 (1981). There is a differ ence betwee n
a statement made in the course of a plea discussion and an otherwise independe nt admission, which is not excluded by Rule 402(f)

. Friedman , 79 I ll. 2d at 353. The deter mination is not

-7-a brig ht-line rule and turns on the fac tual circ umstances of eac h case

. Id. at 352. In making

this deter mination, we may consider the nature of the statements, to whom defe ndant made the statements, and what the parties to the conver sation said. Jones , 219 I ll. 2d at 27-28. “B efor e a discussion can be charac teriz ed as pl ea relate d, it must contain the rudiments of the neg otiation proce ss, i.e. , a willingness by defe ndant to enter a plea of g uilty in return for

conce ssions by the State.” Friedman , 7 9 I l l

. 2d at 353. Where a defe ndant’s subjective expectations to eng ag e in plea neg otiations are not expli cit, the objective cir cu m s t ances surrounding t h e s t at ement take prec edenc e in evaluating whether the statement was plea related. Id. ¶ 20 The rec ord in this case shows that defe ndant made statements on two separ ate occa sions during his time in police custody but befor e any char g es had actua lly been filed ag ainst him. “The examination of whether statements are plea- rela ted is fac t specific

. A finding as to one statement does not nece ssarily ref lect upon the admissibili ty of other statements.” Jones , 219 I ll. 2d at 22 (citing Friedman , 79 I ll. 2d 341, 352 (1980))

. Acc ording ly , we look at eac h set of statements separately to deter mine whether the s tatements we re ma de in the cour se of a plea discussion. ¶ 21 At approximately 2 a.m. on October 23, defe ndant had a conver sat i o n wi t h Detective J ones in the interview room at t h e p o l ice station. Def endant asked Detec tive J ones, “if he g ave a confe ssion what g uara ntees would he have.” J ones responde d that, “he could have no g uara ntees whatsoever . Icouldn’t promise him any thing.” Def

endant then said, “I will tell y ou what. I

will give you a conf

ession. J ust go g et me anothe r g lass of water.” ¶ 22 This first set of statements does not show a subjective intention by defe ndant to neg otiate

a plea. Def

endant failed to specify what “guara ntees” he was seeking from Detec tive J ones in exchang e for confe ssing. Nor did he explain what his “co n fe s s i on” would entail. Def endant never asked to speak with a prosec utor. His second statemen t that he would confess if Detec tive J ones broug ht him another g lass of water neg ates any sug g estion that defe ndant might have been offe ring to plead g uilty in exchang e for conce ssions by the State. We cannot say that defe ndant manifested a subjective intent to i n i t i at e a plea discussion wher e def endant ne ver spe cified the terms of his alleg ed off er to plea barg ain. ¶ 23 I n this reg ard, this case is simil ar t o P eo p l e v. Hart , 214 I ll. 2d 490 (2005). There , the def en d an t wa s interviewe d by a poli ce detective at the j ail, who t old the defendant that he

was there t o interview the defe ndant about an arme d robber y , and that he knew defe ndant

was involved. The defe ndant did not deny being involved but asked the detec tive what he “ ‘c ould do for him if he c ooperated.’ ” Id. at 495. The de tective told the def endant that he could not make any promises to him if he cooper ated, but that he would contac t the State’s Attorney ’s office and advise them of his c oopera tion. Id. We he ld that Rule 402(f) was not intended to exclude as evidenc e mere offe rs to cooper ate with the police, at least wher e the offe rs wer e not acc ompanied by “ ‘the rudiments of the n ego t iation proce ss, i.e. , a willingness by defe ndant t o enter a plea of guilty in return for concessions by the S t at e. ’ ” Hart , 214 I ll. 2d at 504 (quoting Friedman , 79 I ll. 2d at 353). We noted that the def endant

never asked what conce ssions the prosec utor might offer h im, did not ask the detec tive to

-8-contac t the State’s Attorney ’s office or to convey terms to the prosec utor, nor did he specify

what his “ cooper ation” would entail or what, if any thing, he would require in e x chang e for his cooper at i o n. Id. at 511. Finally , the defe ndant never said that he was willing to plead g uilty or discuss pleadingg uilty

. Id. ¶ 24 I n contra st to the defenda nt in Hart , the def

endants in Friedman and People v. Hill , 78 I ll. 2d 465 (1980), clea rly expres s ed t h eir subjective expectations to eng ag e in plea discussions. In Friedman , approximatel y o ne month afte r his indictment for theft by dece ption and conspirac y , the defe ndant called an investiga tor at the Attorney Gene ral’s office and inqui red about “making a deal.” The defe ndant t hen st ated, “I f I ’m co n v i ct ed , I would rathe r g o to a Fe dera l prison as opposed to a S t ate prison,” in ref ere nce to the defe ndant’s indictment for a fede ral offe nse arising out of the same series o f transac tions. The investigator informed the defe ndant that he had no control over that and to “ ‘talk to Mr. Rosenberg .’ ” Friedman , 79 I ll. 2d at 350. This court held that the defe ndant’s statement was improperly admitted at trial beca use it was a plea- related discussion and there fore inadmissible under Rule 402(f)

. Id. at 352. We found that the defe ndant’s “unsolicited statement was an offe r to enter neg otiation, stating g ener ally the terms upon which defe ndant would be willing to ba

rg ain,” a nd that the def

endant’ s inquiry

about “making

a dea l” prior to the s tatement was “a clear indication of defendant’ s intent to pursue plea negotiations.” Id. ¶ 25 I n Hill , afte r confe ssing to one of two murders, the defe ndant asked to see “ ‘the honcho, the head man.’ ” Assistant State’s Attorney J oseph Urso told the defe ndant that he “ ‘guessed I was the honcho beca

use I deter

mined what he was g oing to be char g ed with.’ ” Hill , 78 I ll. 2d at 469-70. The defenda nt then s aid, “ ‘ “I want to talk a deal.” ’ ” Id. at 4 7 0. Urso said, “ ‘ “De al? I g uess I could talk a deal with y ou, but the only person who could approve a deal would b e t h e S t at e’ s Attorney himself, Be rnar d Carey , but I can talk to y ou.” ’ ” Id. The defe ndant then t o l d Urso that “ ‘he would confe ss to both murders, g ive a statement confe ssing t o both murders, plead g uilty to both murders and testify ag ainst Dr. Kaye, the person who paid him to kill Mr. Fields, if I could g et him a signe d aff idavit from Mr. Carey that [he] would be sentenc ed to the minimum 14 y ear s.’ ” Id. The admission of the testimony was he ld to be err oneous and so pr ejudicial as to re quire re versa l. Hill , 78 I ll. 2d at 474. ¶ 26 Unlike the defe ndants in Friedma n an d Hi l l , d ef endant did not exhibi t a subjec tive expectation to neg otiate a plea. Def endant did not ask for any specific conce ssions from the S t at e, only for unspecifie d “guara ntees.” Nor did defe ndant actua lly offe r to plead g uil t y

. Be cause defe ndant had not y et been char g ed when he made the statements, it is not appar ent what conce ssions defe ndant hoped to rec eive in exchang e fo r h i s co nfession. Not all statements made in the hopes of some conce ssion are plea related. See, e.g. , People v. Rolih , 233 I ll. App. 3d 484, 486, 489 (1992) (whe re defe ndant told a State Police investigator that “ ‘he wished to cooperate in any way possible for future consideration of the char g es that would be pending ag ainst h i m , ’ ” the rudiments of a neg otiated plea wer e lacking , in that defe ndant did not indicate the terms under which he would be willing to barg ain); People v. Hanks , 174 I ll. App. 3d 555, 560 (1988) (def endant’ s o ff

er t o confe ss in exchang e for a notice to appea

r was not a plea discussion wher e such notice would not aff ect the dispositi on

-9-of the c ase) ; People v

. Tennin , 123 I ll. App. 3d 894, 898 (1984) ( a def endant’ s willingness to “make a ‘deal’ ” is not plea related where defe ndant i s neg otiating for a rele ase without bond, or for

the droppingof cha

rg es ag ainst him in return for infor mation). ¶ 27 Even if defe ndant exhibi ted a cl ea r s ub j ec t ive expectation to plea barg ain, such an expectation was not rea sonable under the totality of the objective circ umstances. Detec tive J ones told defe ndant that he could not offe r him any g uara ntees. Despite the unequivoca l ref usal by Det ec t i v e J ones, defe ndant proce eded to state that he would confe ss if J ones broug ht him a glass of water

. I n eff ect, defenda

nt offe red to confe ss without attachingany conditions to his offe r or asking for any conce ssions by the State. Thus, the “rudiments of the neg otiation proce ss , i

. e. , a willingness by defe ndant to enter a plea of g uilty in return for

conce ssions by the State,” wer e absent. See Friedman , 79 I ll. 2 d at 3 5 3

. Under these circ umstances, defe ndant’s statements did not constitute plea discussions under Rule 402(f)

. ¶ 28 Turning to the second set of statements made by defe ndant, at approximately 9 p.m. on October 23, defe ndant met with Detec tive J ones and Assistant State’s Attorney Gig lio. J ones testified that defe ndant “wa nted to know that he had g uara ntees that he was not g oing to jail if he spoke to us.” After Gig lio told defe ndant that he could n o t g ive him any g uara ntees,

acc ording to J ones, defe ndant then said t h at “h e was torn. That he wanted to do the rig ht thing but that he was sca

red that he was g oing to g o to ja il.” Gig lio testified that defe ndant “said he wanted to talk about what happene d” and that “he wanted guara ntees from us.” He testified that defe ndant was “ada mant” about not wanting to g o to jail and wanting probation, and that def

endant “ said he would talk to us about what we wer e there to ta lk to him about if he ha d those g uara

ntees.” Gig lio told defe ndant sever al times that he could not g ive him any g uara ntees. Def

endant said, “I will talk to y ou about it. I don’t want to g o to jail. I don’t want to g o to jai l

. ” Gi glio explained to defe ndant that he could not offe r him any thing in exchang e for his statement beca use he did not want any statement by defe ndant to be

coer ced. D efe ndant then ende d the conve rsation. ¶ 29 L ike the first conver sation, this second conver sation did not exhibi t a sub jective intention by defe ndant to enter into plea neg otiations. Def endant did not offe r to plead guilty or even to confe ss. Rather, he said that he would “talk about what happene d” and that he would talk to them “about what [t hey ] wer e there t o talk to him about.” Defe n d an t al s o stated t hat he wanted to “do the rig ht thing.” There is no way to know from these statements exactly what defe ndant meant to te ll Jones a nd Gig lio. De fenda

nt ma y have intended not to confe ss, but to exonerate himself or otherwise distance himself from the alleg ations made by the victims. The rec ord does not reve al what defe ndant was told about those alleg ations at the time of his

conver sation with police

. I n his tria l te stimony , howeve r, defe ndant specific ally denied the acts which wer e testified to by J .M. and J .T., as well as denying that he made any statements to J ones and Gig lio. Finally , defe ndant never specifie d what his “doing the rig ht thing” would entail, nor did he st ate or even hint that he w as willing to plea d g uilty . In Jones , we noted the distinction betwee n a stateme nt made in furthe ranc e of a plea neg otiation a

nd an independe nt admission, which is admissi ble in evidenc e:

“ ‘Ever y g uilty person who voluntarily speaks to a detec tive probably hopes

-10-to benef it from the conver sation, either by co n v i n ci n g the detective t hat he did not commit the crime or by obtainin g l enienc y for his cooper ation. We should resist an approa ch that char acte rizes ever y conver sation betwee n a defe ndant and

a detec tive as a ple a neg otiation. The police have an inve stigatory function that the cour ts and eve n the State’s Attorne y do not have.’ [C itation.]
This investigatory function is critica l to law enfor ceme nt, and we must be car eful to

rec og nize this distinction when interpre ting whether Ru le 4 0 2 ( f ) a p p li e s

. Pa r ti c u larly , while Rule 402(f) was enac ted to encour ag e the negot i ati on proce ss, it was not

enac ted to discourag e leg itimate interrog ation techniques. Those arr ested often seek leniency , and not all attendant statements made in the hope of gaining conce ssions

are plea- related statements under Rule 402(f) .” Jones , 2 1 9 I l l

. 2d at 28 (quoting People v. Jones , 315 I ll. App. 3d 500, 506 (2000), rev’d on other grounds , 197 I ll. 2d 346 (2001))

. ¶ 30 We find that defe ndant’ s s t atements are not acc urate ly char acte rized as an attempt to eng ag e in plea neg otiations. As such, the statements wer e independe nt admissions which

wer e fully admissible at trial. Whil e we do not require a “ ‘pre amble expli citly demar cating the beg inning of plea discussions,’ ” it must be clea r that a defe ndant actua lly intends to plead g uilty in exchang e for a conce ssion by the State, and that such intention is objectively

rea sonable under the circ umstances. Friedman , 79 I ll. 2d at 352 (quoting United States v. Herman , 544 F.2d 791, 797 (5th Cir. 1 9 7 7 ))

. Def endant’ s intent to eng ag e in plea neg otiations wa s not shown where it was not evident that he was actua lly offe ring to ple ad g uilty to any crimes. ¶ 31 Fur

thermore , defe nd a

nt w a s in f o r me d sever al times that he would not be offe red a ny thing in exchang e for his statements. The repe ated disclaimers by J ones and Gig lio that they could not offe r defe ndant any g uara ntees erode the rea sonablene ss of any belief by defe ndant that the par ties were eng ag ed in plea- barg ain discussions. See Robertson , 582 F.2d at 1373 n.3 (Morg an, J ., specia lly concur ring , joined by Goldberg and Fa y , J J .). In sum, the rec ord does not reve al t hat defendant beli ev ed h e was neg otiating a plea when he made the statements at issue, nor wo u l d s u ch a belief have been rea sonable under the circ umstances. The statements wer e not made as part of a plea discussion, and, as such, wer e admissible. Acc ording ly , there was no clea r or obvious err or in allowing the testimony conce rning defe ndant’s custodial stateme nts.

¶ 32 I I . Disqualification of Counsel ¶ 33 I n his c ross-appe al, defe ndant contends that the trial court abused its discretion when it g rante d the State’s motion to disqualify his defe nse attorney , Michae l Clancy , and when the court denied his subsequent motions t o re consi der the issue. He asser ts that the court’s decision violates his constitutional right to counse l of choice

. ¶ 34 Clancy was reta ined by defe nd an t wh i l e d ef en d an t wa s i n cu s t o d y at the police depar tment on October 22, 2004. On October 30, 2006, Clancy filed a motion t o s u p p ress

-11-statements alleg ing tha t Clancy met with defe ndant at the police station; that defe ndant, in the prese nce of Clancy and Detec tive J ones, asser ted his rig ht to rema in silent, asser ted that he did not want to be que stioned, and asser ted that his attorney must be prese nt during any questioning; that defe ndant signe d a written asser tion of his Miranda rig hts in the prese nce of Clancy and J ones; and that defe ndant was subsequently questioned and made statements in violation of Edwards v. Arizona , 451 U.S. 477 (1981). ¶ 35 On April 9, 2008, the State filed a written motion to disqualify Clancy from re prese nting defe ndant in the case

. The State alleg ed that C l an cy was listed as a defe nse witness on defe ndant’s motion to suppress statements and that Clancy was prohibited from both repr esenting defe ndant and acting as a witness in the same proce eding

. The S t at e al l eged further that there exis ted a possibili ty that Clancy may be a witness at trial. The he aringon the motion to suppress was held on J uly 24, 2008. Attorney Michae l Gog g in appea red, along with Clancy , on behalf of defe ndant. Prior to the suppression hear ing, the trial court inquired whether Gog g in had filed an appea ra n ce i n the case and order ed him to do so. Gog g in informed the court that he thought he had filed an appea ranc e, and that he had been “re tained in this case for

quite a per iod of time.” ¶ 36 Wit h reg ard to the motion to disqualify , Gog g in argued that C l an cy s h o u l d n o t b e disqualified from repr esenting defe ndant at trial beca use Clancy would n o t b e called as a witness at trial. Gog g in told the court that Clancy was not prese nt at the police station when defe ndant made statements to police. The State argued that defe ndant made statements both befor e and afte r Clancy ’s arr ival at the station, and that the circ umstances surrounding those statements may require Clancy to testify

. The court ruled that the written motion to suppress rende red Clancy a material witness. The court disqualified C lancy as attorney o f record in the case and order ed Gog g in to substitut e as defe nse counsel

. During the suppression hear ing, Clancy testified as defe ndant’s only witness. After the hear ing, Gog g in asked the court to rec onsider Cl an cy ’s d i s qualification, but the court denied that reque st. The court further denied a subsequent written motion to reco n s i der filed by Gog g in, finding it likely that the State could call Clancy as a witness “under a more cre dible fac tual scena rio.” Gog g in continued to re prese nt defe ndant at trial. ¶ 37 The six th amendment g uara ntees a criminal defe ndant the rig ht to assistance of counse l (U.S. Const., amend. VI ), which encompa sses the rig ht to eff ective repr esentation as well as the rig ht to selec t and be repr esente d by one’s pref err ed attorney

. People v. Holmes , 141 I ll. 2d 204, 217 (1990) ( citing W heat v. United States , 486 U.S. 153, 159 (1988))

. The rig ht to counsel of choice is not absolute and is circ umscribed in sever al respe cts, which may include the disqualification of chosen counsel in the event of a conflict of interest. Id. “[W ]hi le the rig ht to selec t and be repr esente d by one’s pref err ed attorney is compre hended by the Six th Amendment, the essential aim of the Amendment is to g uara ntee a n eff ective a dvocate for

eac h criminal defe ndant rathe r than to ensure that a defe ndant will inexorably be repr esente d by the lawy er whom he pref ers.” W heat , 486 U.S. at 159. The trial co u rt i s in the best position to weig h and evaluate the fac ts and circ umstances and the particula r interests in eac h

case to deter

mine whether d isqualification is war rante d. Holmes , 141 I ll. 2d at 223. Acc ording ly , a revie wing court will not s et as i d e a trial court’s decision to disqualify a

-12-defe ndant’s chosen counsel unless there has been a clea r abuse of discretion. Id. at 224. An abuse of discretion occur s only wher e the trial court’s decision is arbitrary , fa nciful, or
unrea sonable to the deg ree that no rea sonable person would ag ree with it. People v. Ortega , 209 I ll. 2d 354, 359 (2004) (c iting People v . Illgen , 145 I ll. 2d 353, 364 (1991)). ¶ 38 The State a lleg ed prior to the suppression hear ing that Clancy had a conf lict of interest in his role as an advocate for defe n d an t , i n t h at he intended to testify as a witness at the suppression hear ing. The State also alleg ed that it was possible that Clancy would be called

as a witness at trial. I n this court, the State maintains that, pursuant to Rule 3.7 of the I llinois Rules of Professional Conduct, Clancy had a profe ssional obligation to withdraw as defe nse counsel whe n he intended to testify as a material witness at the suppression hea ring

. ¶ 39 At the time of def endant’ s trial in 2009, Rule 3.7 provided in part: “(a ) A lawy er shall not acc ept or continue employ ment in contemplated or pending litigation if the lawy er knows or rea son ab l y should know that the lawy er may be called as a witness on behalf of the client, except that the lawy er may undertake the e mploy

ment and may

testify : (1) if the testimony

will relate to a

n uncontested matter; (2) if the testimony wi l l re l at e to a matter of formality and the lawy er
rea sonably believes that no substantial evidenc e will be offe red in opposition to the testimony ; (3) if the testimony will relate to the natu re and value of leg al service s rende red in the c ase by

the lawyer or

the firm to the client; or (4) as to any other matter, if ref usal to acc ept or continue t h e em p l o y ment would work a substantial hardship on the client.” I ll. R. Prof. Conduct R. 3.7 (ef f. Aug . 1, 1990). 2 ¶ 40 We agree with the S tate that in this case , wher e counsel acte d as bot h an advocate and

a witness in the course of pending litigation, Rule 3.7 require d Clancy to withdraw from his repr esentation of defe ndant, and we fin d , t h er ef o re, that the trial court did not abuse its discretion in disqualifying Clancy

. The rule prohibiting counsel from acting as both an

T he for m er Ru l e s of Pro fe ssi ona l Condu ct wer e re pea le d in 2010 and re pla ced by a new 2
set of ru le s. Ru le 3.7 now s ta te s:

“( a) A la wyer shall not act as advoca te at a tr ia l in whic h the la wyer is li kely to be

a ne ces sar y witne ss unl ess : (1) th e t est imony

re la te s t o an unc ont est ed i ssu e; (2) the te s t imony re la te s to the nat ure and value of le gal ser vices re nde re d in the

cas e; or (3) di squ al if

ic at ion of th e l awyer wou ld work sub st ant ia l h ar dsh ip on t he c li ent

. (b) A la wyer m ay act as advoca te in a tr ia l in whic h ano the r la wyer in the la wyer’s fi rm is li kely to be cal le d as a wit nes s un le ss pre cl ude d f rom doin g so by Rule 1.7 or Rule 1.9.” I ll . R. Pr of. Cond uct(2 010) R. 3.7 (e ff . J an. 1, 20 10)

. -13-advocate and a witness in the same case ref lects important policy co n s i d erations. For instance, the attorney -witness may not be a fu lly objective witness, causing harm to the client’s cause , or the trier of fac t may g rant undue weig ht to the attorney ’s testimony , unfairly disadvantag ing the opposing party

. W eil, Freiburg & Thomas, P.C. v. Sara Lee Corp. , 218 I ll. App. 3d 383, 395-96 (1991) ; Jones v . City of Chicago , 610 F. Supp. 350, 357 (D.C. I ll. 1984). Ba lance d ag ainst a defe ndant’s six th amendment rig ht to counsel of choice , “ ‘cour ts have an independe nt interest in ensuring that criminal trials are conducte d within the ethical standards of the profe ssion’ and that ‘their judgme nts r emain intact on appea l.’ ” People v. Barrow , 133 I ll. 2d 226, 253 (1989) (quoting W heat , 486 U.S. at 160-61). ¶ 41 People v . Ree d , 298 I ll. App. 3d 285 (1998), is on point with the fac ts in thi s case . The defe ndant argued that he was deprive d of his six th amendment rig ht to counsel when the trial court order ed his attorney , J ack Rogdon, to withdraw from the case prior to trial. Id. at 294. In the pretria l motion to suppress, Rogdon stated that the defe ndant had reque sted to spe ak with him during police questioning, that Rogdon was prese nt at the police station during part of the interrog ation, and that he w as not permitted to see the defe ndant. The State made an oral mot ion to disqualify Rogdon beca use h e wa s a potential witness at t he hearing on the motion to suppress. The trial court a g ree d and orde red Rog don to withdraw fr om the case

. The a ppellate c ourt aff

irmed, findingno abuse of discretion. Id. at 295-96. The court he ld, based on the pleading s and the parties’ arguments, that Rogdon might be called as a witness by the S tate on the i ssue of whether the pol ice refuse d to let him see the d efendant. Under those circ umstances, “Rule 3.7 mandated Rogdon’ s withdrawa l, and in the fac e of his ref usal to so withdraw, the trial court acte d within its discretion when it or dere d him of f the case .” Id. at 295. ¶ 42 Def

endant distinguishes Ree d , arguing that in this case , Clancy was not likely to be called

as a witness at trial, and, in fac t, did not testify at trial. Acc ording to defe ndant, Clancy could have offer ed no leg ally admissible t es timony at t rial because his testimony was concer ned solely with whether defe ndant waived his Miranda ri gh t s p ri or to speaking with police. Def endant’ s argument ignor es the fac t that the trial court rul ed o n the motion for disqualification prior to the suppression hear ing at which Clancy offe red his testimony as a defe nse witness. We ag ree with the appellate court be low that the fa ct that Clancy was not called by t h e State as a witness during trial is irrele vant to the trial court’s decision to disqualify him prior to the suppression hear ing. The rec ord demonstrates that, at the time of the court’s decision, Clancy knew he would be called as a witness on behalf of his client in the course of pending litigation. See I ll. R. Prof. Conduct R. 3.7(a) (ef f. Aug

. 1, 1990). Thus,

we c annot say

that the trial cour

t abused its discretion in disqualifying Clanc y at that time.

¶ 43 CONCL USI ON ¶ 44 For the fore g oing rea sons, the judgme nt of the appellate court is reve rsed, and the cause is rema nded to the appellate court for resolution of the rema ining issues raised by defe ndant.

-14-¶ 45 Appellate c ourt judg ment reve rsed.

¶ 46 Cause re manded.

-15-