author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT PHILLIPS, Defendant-Appellant.
    Second District
    No. 2—90—0479
    Opinion filed March 27, 1992.

      6. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant in the instant case, Roosevelt Phillips, along with Jeff Musgrove and Danny Graham, was charged by indictment with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)), conspiracy to commit armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8—2) and attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8—4(a)). Following a jury trial in the circuit court of Lake County, defendant was found guilty of the above offenses and sentenced to a term of 70 years’ imprisonment. On appeal defendant contends that: (1) the trial court’s denial of his motion to suppress certain statements to police was against the manifest weight of the evidence because (a) defendant did not knowingly and intelligently waive his Miranda rights, (b) the trial court improperly focused on whether defendant’s statements were voluntary rather than whether the waiver of his rights was knowing and intelligent, and (c) the trial court mistakenly believed that defendant was not constitutionally entitled to a hearing on his motion to suppress since he denied making the statements; and (2) the trial court’s imposition of sentence was an abuse of discretion. We affirm.

As defendant does not challenge the sufficiency of the evidence to prove his guilt beyond a reasonable doubt, we review only those facts necessary to our resolution of the specific issues presented on appeal. The record reveals that the victim, Stanley Hamilton, was shot and killed during a robbery attempt in the early morning hours of August 24, 1988, while he was working at a Sears surplus outlet store. Prior to trial, defendant moved to suppress his incriminating statements to authorities regarding his involvement in the incident. The evidence presented at the motion to suppress hearing is discussed below.

Following his arrest on August 27, 1988, defendant was placed in an interview room at the Waukegan police department, whereupon he was interviewed by Officers Fernando Shipley and Phillip Stevenson. Officer Shipley advised defendant of his constitutional rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Shipley read defendant each Miranda warning separately and asked him if he understood each warning. Defendant responded that he understood after each sentence what was read to him regarding his rights. From the same preprinted form, Shipley also read to defendant an acknowledgement of waiver of rights. Defendant stated that he understood the waiver. Shipley then gave the form to defendant to read. Defendant “appeared to read” the form and then placed his signature at the bottom of the form. According to Shipley, defendant did not say or do anything to indicate that he did not understand his rights.

After initially denying any involvement in Hamilton’s death, defendant stated that he went to the Sears store with Jeff Musgrove and Danny Graham, but only to act as a lookout while Musgrove and Graham robbed Hamilton. Shipley and Stevenson compared this account of this incident with a statement given by Graham and determined that defendant’s version was not feasible. The officers then returned to the interview room, showed defendant some photographs of the victim and reviewed defendant’s prior statement. At that point, defendant admitted that he was the person who shot Hamilton.

Officer Stevenson reduced defendant’s statement to writing, prepared a two-page typewritten statement of defendant’s account and made copies of the typed document. Stevenson read the statement to defendant and asked him to make whatever corrections he thought were necessary. Defendant was given a copy of the statement and was allowed to read along with Stevenson. Defendant had the officers make two changes. The first change added the word “ruthless” to the statement. The second change added the words, “I wasn’t supposed to shoot the guy, but he came out with a gun so he would have shot me. I didn’t shoot him first.” After Stevenson made the appropriate corrections, defendant placed his signature at the bottom of both pages of the two-page statement and initialed both corrections.

According to the officers, defendant never indicated that he wanted to remain silent or that he wanted an attorney. Defendant was not struck or threatened with physical violence. Defendant was not agitated when the statement was read and never interrupted to say he did not commit the offense.

Dr. George Baroff, a psychologist, testified for defendant at the suppression hearing. Dr. Baroff administered several tests to and evaluated defendant. Among the tests Dr. Baroff administered was the Vineland Adaptive Behavior Scale, which focused on defendant’s adaptive behavior relative to his ability to function in daily living, language skills and interpersonal relationships. Dr. Baroff concluded that defendant fell within the moderately retarded range on the Vineland scale.

Dr. Baroff also gave defendant the Stanford-Binet test to determine his general intelligence. Dr. Baroff determined that defendant was functioning at a mental age of nine years two months, and that the corresponding intelligence quotient (IQ) for that mental age, given the defendant’s chronological age of 18, was 56.

The third test Dr. Baroff administered was the Wide Range Achievement Test, to determine defendant’s reading ability. Defendant was found to function at a second-grade level.

Regarding the understanding of Miranda warnings, Dr. Baroff noted that the mere presence of mental retardation did not necessarily preclude an understanding of the warnings. Dr. Baroff determined that the material contained in the Miranda warnings was at a seventh-grade level of reading difficulty and that the corresponding chronological age for comprehension was a child between the ages of 12 and 13. Dr. Baroff also stated that he would not expect a nine-year-old to be able to understand Miranda warnings without careful explanation.

Dr. Baroff reviewed the Miranda warnings with defendant several times. He first determined that defendant could not read the Miranda warnings himself. He next evaluated defendant’s understanding of each Miranda warning. After reviewing each warning, Dr. Baroff went through another version of Miranda warnings which had been developed by Professor Grisso at Washington University in St. Louis.

Dr. Baroff first tested defendant’s comprehension as to the traditional Miranda warnings. According to Baroff, defendant interpreted the phrase “you have the right to remain silent” as “don’t make any noise.” Defendant interpreted the second phrase, “anything you say can and will be used against you in a court of law,” to mean “you’re held in a court of law for your hearing, bond reduction.” The third warning, “you have the right to consult with a lawyer before you answer any questions or make any statements and to have him present during questioning,” was first interpreted to mean “you can talk to your lawyer.” After further questioning regarding this warning, defendant asked, “what the hell is consult.” Defendant interpreted the last warning, “if you cannot afford a lawyer, one will be appointed for you before questioning or at any time during questioning if you so desire,” to mean “they going to give you a person, a person, to help you go over the questions.”

The first Miranda warning as developed by Professor Grisso read, “you do not have to make a statement, and have the right to remain silent.” Defendant interpreted this phrase to mean, “be quiet when he’s talking to you.” In response to “anything you say can and will be held against you in a court of law,” defendant replied, “that you be in a court of law, taken to the court because they want you to be there.” In response to the phrase “you’re entitled to consult with an attorney before interrogation and to have an attorney present at the time of interrogation,” defendant replied, “I don’t know consult; interrogation, beating up people.” Defendant interpreted the fourth statement, “if you cannot afford an attorney, one will be appointed for you,” as “you don’t have any money, and they get someone to go over the questions to help you out.” Defendant also stated that the phrase “to help out” meant “to help you understand the questions, to make sure you know what’s going on.”

It was Dr. Baroff’s opinion that defendant “essentially has no understanding of his Miranda rights; that his understanding is extraordinarily deficient. His understanding is so deficient that apparently he has not even recognized the very basic assumptions which underlie the Miranda rights.” Dr. Baroff also stated that he did not believe defendant had been faking his responses during the Miranda comprehension evaluations. Based on his evaluations, Dr. Baroff concluded that defendant could not have made a knowing and intelligent waiver of his Miranda rights.

On cross-examination Dr. Baroff acknowledged that he was aware of a Beta IQ examination in 1986 which showed defendant at an IQ level of 89. Dr. Baroff stated, however, that the Beta test was obsolete and was no longer used. Another test given in 1980 revealed defendant’s IQ to be 70, and a Wexler Intelligence Scale for Children in 1981 revealed a full-scale IQ of 65.

Dr. Daniel Rybicki, a clinical psychologist, also testified on defendant’s behalf at the suppression hearing. Dr. Rybicki administered several tests to defendant and concluded that defendant suffered from mild retardation. Dr. Rybicki also disregarded the usefulness of the Beta IQ test. According to Dr. Rybicki the full scale IQ of 76, which defendant was determined to have scored in 1979, was probably a result of the difference between the Wexler Intelligence Scale for Children test and the Wexler Adult Intelligent Scale. Dr. Rybicki was of the opinion that “the 65’s and 70’s are most likely representative samples of [defendant’s] full scale intellectual function.” Defendant scored a 23 on the wide-range achievement test, which placed him below a third-grade level of reading ability.

Waukegan Alderman Robert Evans also testified in defendant’s behalf. Evans had known defendant for several years and was familiar with his educational background. Evans stated that he was aware that defendant had mental problems “[bjecause there was a kind of a long history of fire settings and things of that nature; and he set my house on fire and at that time I worked to have him committed to an institution to get him some help.”

Evans knew that defendant was being sought by police in connection with Hamilton’s death and contacted police in order to help them apprehend defendant. Evans eventually brought defendant to the police station and turned him over to the police. At that time, Evans told the police that the defendant had mental problems, that defendant had a history of setting fires, and that he had been in several institutions.

The defendant also testified at the suppression hearing. Defendant denied telling police that he shot a Sears security guard or that he participated in the planning of the robbery or that he was in the Sears store tent on the night of the shooting. When defendant signed the statement that is the subject of the motion to suppress, he thought he was signing a paper regarding stolen Cadillac automobiles.

According to defendant, after he was brought into an interrogation room, he was told by police, “you going to tell us who did this.” One of the police officers then showed defendant some pictures of clothes, pictures of guns, and pictures of a dead person. The police told him that, “if you don’t tell us who did it or what could have happened, we are going to blame it on you like they did in Chicago about the Cadillacs.” Defendant also stated that one of the police officers slammed him up against a wall.

The police were questioning defendant about his involvement with a stolen Cadillac. At one point defendant stated that the officers came into the interrogation room with a piece of paper that had “a whole bunch of words on it.” One of the officers then told defendant to mark the paper so as to indicate that he had been in a particular car. The officer then told defendant to place his initials in a certain place and also asked him to sign the document. After signing the document, defendant asked the officers to read the paper back to him. When the statement was read, defendant indicated that “there was some way-out shit I never heard before.” Defendant stated that he did not read the statement because he was unable to do so.

The parties subsequently stipulated that if Lieutenant St. Clair were called to testify he would state that, during an arrest of defendant for an unrelated offense in 1987, defendant stated with regard to his Miranda warnings, “Don’t read them to me; I know them; and I’m not going to talk.” Also admitted into evidence were various inmate request forms, which had been introduced at defendant’s prior fitness hearing for the proposition that defendant could write.

At the close of all the evidence the trial court denied defendant’s motion to suppress, stating in pertinent part as follows:

“On the stand, [defendant] has understood questions *** which were not simple, which were not put together well, which he understood completely. ***
* * *
He does not have an IQ of a level of the ordinary adult of his age would or should have; and it’s below the standard that is used. I think the evidence supports that. Taking into consideration that the defendant with that particular fact clear, but also observing the defendant and his responses to questions and his response and his outbursts to testimony on the stand, it’s clear and unequivocable [sic] that he understands communications substantially better than your psychologist suggested in his opinion of the defendant not understanding his rights; and I find his testimony totally incredible and unbelievable as to his testing of the defendant and his opinion as to the defendant not understanding his rights.
Very frankly, from the testimony I would find that the defendant did in fact understand his rights and knowingly waived his rights. Arguendo if he did not, this is a clearcut Connolly [sic] case where there was no action by the police using his mental state in any manner, way, or form so as to encourage or in any other way obtain his waiver of Miranda ***.
* * *
Notwithstanding that, I would find from the evidence that the police did not act improperly, nor did they coerce the defendant in any way, nor were the statements made by the defendant involvuntary [sic] under any of the standards of law; and the motion is denied.” (Emphasis added.)

As stated, defendant maintains that the trial court erred in denying his motion to suppress for several reasons. First, he argues that he did not knowingly and intelligently waive his constitutional rights under Miranda. He contends that the trial court erred in disregarding testimony which established his inability to knowingly and intelligently waive these rights. We cannot agree.

When the State seeks to admit a defendant’s confession at trial, it must first prove that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) In determining whether a defendant knowingly and intelligently waived his Miranda rights, the court must consider the totality of the circumstances, including the characteristics of the defendant and the details of the interrogation. (People v. Turner (1973), 56 Ill. 2d 201, 205-07.) The characteristics which must be examined are those which bear upon a defendant’s ability to make knowledgeable and independent decisions, such as age, intelligence, prior experience with the criminal law and emotional stability. People v. Racanelli (1985), 132 Ill. App. 3d 124, 132.

Evidence of a defendant’s limited intellectual or mental capacity, standing alone, does not necessarily indicate that the defendant is incapable of waiving his constitutional rights and making a confession. (People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 1013.) Rather, such evidence is but one of the issues to be considered in reviewing the totality of the circumstances under which the confession is made. (Kokoraleis, 149 Ill. App. 3d at 1013.) It is also important to note that the police are not required, as a prerequisite to accepting a defendant’s waiver, to conduct a mental examination of the defendant in order to ascertain his ability to comprehend his constitutional rights. (149 Ill. App. 3d at 1013.) While the State must prove that a statement was made knowingly, intelligently, and voluntarily, where a trial court so finds after application of the proper legal standards, review on appeal is limited to whether that finding is contrary to the manifest weight of the evidence. Racanelli, 132 Ill. App. 3d at 133, citing People v. Kincaid (1981), 87 Ill. 2d 107, 116-18, cert. denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144, 102 S. Ct. 1726.

Applying the above principles to the facts of the instant case, we cannot conclude that the trial court’s denial of defendant’s motion to suppress was against the manifest weight of the record evidence. Contrary to defendant’s contention that the trial court ignored his evidence, the trial court made specific findings that defendant was mildly retarded and that he had a below-standard IQ. That the court nonetheless found that defendant had made the requisite waiver of his rights does not alone require a conclusion that it ignored defendant’s evidence. The trial court also found that the defendant, while testifying, was able to understand and responded to relatively complex questions. That the trial court may have primarily emphasized its observations of defendant during his testimony does not mean that it erred in denying his motion to suppress. It has been recognized that the trial court is in a better position than a court of review to evaluate a defendant’s ability to understand his rights. (People v. Ellison (1984), 126 Ill. App. 3d 985, 992.) Obviously, this fact encompasses the trial court’s observations of the defendant when he chooses to testify at a suppression hearing and its evaluation of his ability to respond to verbal questioning. Ellison, 126 Ill. App. 3d at 994.

Defendant argues that the police were advised of his mental problems by Alderman Robert Evans, but nevertheless failed to insure that defendant understood his constitutional rights. However, the State correctly notes that the mental problems to which Alderman Evans referred concerned primarily defendant’s propensity to set fires. Evans did not testify that he told police that defendant had a low IQ or that he was unable to understand Miranda warnings. Moreover, there is no evidence in the record indicating specifically to whom Evans spoke regarding defendant’s mental state. Evans did not mention Officers Shipley or Stevenson in his testimony; he simply states that the police were aware of defendant’s mental problems.

Defendant also argues that the trial court erred when it rejected the expert testimony of Drs. Baroff and Rybicki. We disagree. First, it is clear that the trial court did not completely reject defendant’s expert testimony. The trial court agreed with the experts’ conclusions that defendant was to some degree mentally retarded and that he had a low IQ. The trial court’s disagreement with the experts concerned defendant’s ability to knowingly and intelligently waive his Miranda rights.

In addition, the case law cited by defendant in support of his argument that the court erred in disregarding expert testimony is clearly distinguishable. In People v. Williams (1980), 87 Ill. App. 3d 860, the issue on appeal was whether the trial court erred in finding the defendant fit to stand trial. In concluding that the trial court’s finding of fitness was against the manifest weight of the evidence, this court noted that the only testimony presented at the fitness hearing indicated that the defendant was not fit to stand trial. Both the State’s and the defendant’s expert witnesses testified that the defendant was unable to assist in his defense. Quite unlike the facts in the instant case, the defendant in Williams did not testify at the hearing or at trial, and the trial judge’s personal observation of the defendant regarding his fitness for trial consisted merely of brief exchanges of casual conversation. Williams, 87 Ill. App. 3d at 864.

Similarly, in People v. Janecek (1989), 185 Ill. App. 3d 89, on the issue of a defendant’s sanity, the appellate court found no substantial disparity between the State and defense "witnesses regarding the defendant’s capacity to conform her conduct to the requirements of the law. Unlike the facts present in this case, the testimony of a police officer in Janeeek tended to support that of the defense psychiatrist and defendant’s former husband that defendant was not sane. Janecek, 185 Ill. App. 3d at 94.

On the record before us we cannot say that the trial court failed either to consider pertinent evidence or to give any evidence its proper weight. The trial court clearly considered the expert testimony, but deduced that the conclusions as to defendant’s ability to understand Miranda warnings were not persuasive. Under the facts of this case, the trial court was not required to accept defendant’s experts’ conclusions of fact. Kokoraleis, 149 Ill. App. 3d at 1014; Racanelli, 132 Ill. App. 3d at 133.

Considering the totality of the circumstances, we conclude that the trial court’s denial of defendant’s motion to suppress was not against the manifest weight of the evidence. Defendant was advised of his constitutional rights under Miranda. He was advised of his rights both orally and in writing. While defendant had opportunities to tell the police that he did not understand the rights as they were read to him, he did not do so. Defendant told police that he understood the rights read to him. He gave both oral and written waivers of his rights. Importantly, defendant also had prior experience with the criminal justice system and therefore was not unaware of his rights.

While the expert testimony was a factor in defendant’s favor, it was the trial court’s responsibility to judge the credibility of the witnesses and to consider and weigh each of the factors. (Racanelli, 132 Ill. App. 3d at 129.) The trial court heard defendant’s testimony and observed his demeanor on the witness stand. The record clearly indicates that the trial court properly considered all of the relevant circumstances in this case. Consequently, we do not believe that the court’s decision to deny defendant’s motion was against the manifest weight of the evidence.

Nor do we believe that defendant’s cited cases compel a contrary conclusion. Defendant urges us to follow People v. Redmon (1984), 127 Ill. App. 3d 342, and People v. Bernasco (1990), 138 Ill. 2d 349, arguing that these cases present factual situations closely analogous to the facts presented here.

In Redmon, the court reversed the finding of voluntariness of the confessions of a 17-year-old borderline mentally deficient defendant chiefly on the basis of his final written statement. The defendant there expressly stated during an interview with the police that he did not understand his right to talk to and be represented by a lawyer during questioning. After this was explained, the defendant asked that questioning cease. (Redmon, 127 Ill. App. 3d at 345-46.) No such evidence exists in this case. The defendant in Redmon never signed a written waiver of rights form. In contrast, defendant in this case did sign a written waiver form, and the testimony of Officers Shipley and Stevenson indicates that defendant at all times during questioning understood his rights. In addition, the record reveals that defendant had several prior experiences with the law, both as a juvenile and as an adult, while the Redmon defendant had not. For these reasons, we find Redmon to be inapposite.

People v. Bernasco involved an appeal by the State from an order of the trial court suppressing the confession of the defendant as involuntary. In its written order the trial court found that the defendant had an IQ of 80, a fourth-grade reading and comprehension level and no prior criminal experience. The trial court also noted that the testimony of the defendant indicated that he had substantial difficulty in understanding relatively routine questions. The Illinois Supreme Court affirmed both the trial court and the appellate court, stating as follows:

“We do not sit to reweigh the evidence as if we were a trial court; a reviewing court will not disturb a trial court’s determination on a motion to suppress evidence unless it is against the manifest weight of the evidence. [Citation.] Whether a defendant intelligently waived his right to counsel depends, in each case, on the particular facts and circumstances of that case, including the defendant’s background, experience, and conduct. [Citation.] The trial court here reached its conclusion after hearing police, parental, and psychological testimony and— what is very significant — making its own observations of defendant while he was testifying.” (Emphasis added.) (Bernasco, 138 Ill. 2d at 368.)

Bernasco is clearly factually distinguishable from the instant case. Further, we believe that the supreme court’s ultimate conclusion, focusing as it did on the trial court’s observations of the defendant, actually supports our conclusion that the denial of defendant’s motion to suppress was not against the manifest weight of the evidence.

Defendant also contends that the trial court’s denial of his motion to suppress was improperly based upon whether the statements were voluntary rather than whether the defendant’s waiver of Miranda rights was knowing and intelligent. We disagree. Based on its statements at the suppression hearing, as set forth earlier in this opinion, the trial court did in fact apply the proper standards in evaluating the admissibility of defendant’s statements. The trial court considered defendant’s experts’ testimony on whether defendant knowingly and intelligently waived his rights, but disagreed with their conclusions in this regard. In his brief, defendant only discusses the court’s statements regarding the voluntariness issue. In the process, he takes several of the court’s comments out of context. Such an approach is both incomplete and misleading, and we consider it to be without merit.

Finally, defendant contends that the trial court mistakenly believed that he was not constitutionally entitled to a hearing on his motion since he had denied making any incriminating statements to police. We need not address this contention at length, as it is clear that the trial court in this instance conducted, and the defendant received, a thorough hearing on his motion to suppress. The court heard the testimony of eight witnesses and addressed all of defendant’s concerns prior to rendering a decision. The hearing was most certainly not the “pro forma event with a predetermined conclusion,” described by defendant.

The last issue raised by defendant on appeal is that the trial court abused its discretion in sentencing him to a 70-year term of imprisonment. Specifically, defendant contends that his 70-year sentence is unfair considering the fact that codefendant Jeff Musgrove was sentenced to a 50-year term of imprisonment. The standards we must apply in deciding this issue were articulated in People v. La Pointe (1981), 88 Ill. 2d 482:

“[T]he standard of review to be applied in determining whether a sentence is excessive is: Did the trial judge abuse his discretion in imposing that sentence? [Citations.]
***
The Unified Code of Corrections vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. [Citation.] We held in Perruquet, and emphasize here that ‘the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.’ ” (La Pointe, 88 Ill. 2d at 492-93, quoting People v. Perruquet (1977), 68 Ill. 2d 149, 154.)

We also recognize that disparate sentences may be supported by either a more serious criminal record or greater participation in the offense. People v. Treece (1987), 159 Ill. App. 3d 397, 418.

Applying these principles here, we affirm the sentence imposed on defendant. We believe the record evidence and the trial court’s statements of its reasons for imposing sentence reflect a proper exercise of the wide discretion vested in it to determine an appropriate sentence. In this regard, we reject defendant’s contention that the court failed to adequately take into account his rehabilitative potential or his allegedly lesser culpability relative to that of Jeff Mus-grove. The trial court explicitly recognized its duty to consider the possibility of rehabilitation and defendant’s relative culpability, although it weighed these factors against the considerations that it should not deprecate the seriousness of the offense and the protection of society. Moreover, where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. People v. Danis (1984), 129 Ill. App. 3d 664, 670.

In view of the trial court’s consideration of proper factors in mitigation and aggravation, defendant’s arguments amount to a request that we balance the appropriate factors differently and independently conclude that his sentence is excessive. However, it is not our function to do so. People v. Cox (1980), 82 Ill. 2d 268, 280.

For all of the foregoing reasons, the denial of the motion to suppress, the judgment of conviction entered, and sentence imposed by the trial court are affirmed in their entirety.

Affirmed.

INGLIS, P.J., and WOODWARD, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STACEY ANN McLAIN, Defendant-Appellant.
    Second District
    No. 2—89—1163
    Opinion filed March 27, 1992.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas E Baker, State’s Attorney, of Woodstock (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury in the circuit court of McHenry County found defendant, Stacey Ann McLain, guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2)) and failure to stop after having an accident involving personal injury or death (Ill. Rev. Stat. 1987, ch. 95½, par. 11—401(a)). Defendant was sentenced to 32 years in prison for the murder conviction and 360 days for failure to stop, the terms to be served concurrently. On appeal defendant contends that the trial court erred when it (1) apprised the jury that she had entered a plea of guilty but mentally ill, (2) denied her motion for substitution of judge, and (3) admitted evidence of a prior uncharged offense by defendant.

Early in the evening of July 15, 1988, Robert Kosick and Patricia Lauraitis walked, arm in arm, northbound along the west edge of a residential road near Kosick’s home in McHenry County. The gravel shoulders of the road began at the edge of the pavement and gradually sloped off to a shallow, grassy ditch. At about the same time Kosick and Lauraitis were walking, defendant, accompanied by Jennifer Emrich, drove her car toward Kosick’s home. She assertedly wanted to drop off a piece of mail belonging to Kosick, who was her former boyfriend and ex-fiance. The relationship between defendant and Kosick had ended about two months earlier.

Approaching from a cross street up ahead of the couple, defendant turned the car into the southbound lane of the same residential street where Kosick and Lauraitis were walking northbound. Although it was not entirely undisputed, the evidence tended to show that, as it approached the two pedestrians from the north, defendant’s car veered toward them so that the right tires went off the pavement and onto the gravel, or at least very close to the edge of the pavement. Defendant’s car struck Lauraitis, who died of head injuries a short time later. The door handle and mirror of the car brushed Kosick, but he had otherwise managed to move out of the way of the car into the grassy roadside area. The car swerved back onto the roadway and kept on going. Defendant never came back to offer aid or seek help for Kosick and Lauraitis. Defendant, who was 16 years old at the time of the incident, was subsequently charged with first degree murder, reckless homicide and leaving the scene of an accident. She was tried as an adult and convicted on the charges of murder and leaving the scene of an accident. Additional facts will be presented as needed to resolve the issues.

Defendant first contends that she was denied a fair trial when the jurors were informed that she had entered a plea of guilty but mentally ill. At her arraignment defendant entered a plea of not guilty. However, on the first day of trial, defense counsel filed a statement of defenses which proclaimed:

“Please take notice that at the trial of this cause, the defendant shall assert the alternate defenses of not guilty and guilty but mentally ill.”

Counsel indicated verbally to the court and the State that he was asserting guilty but mentally ill as an affirmative defense.

At the beginning of voir dire, as part of its opening remarks to the venire, the court recited the charges against defendant and explained that she denied those charges and had pleaded not guilty to each of them. He then added the following statement, “In the alternative, the defendant has pled guilty but mentally ill to each of these charges.” This remark, or words similar to it, was addressed to the veniremen each day they reconvened for jury selection.

Voir dire itself was conducted in chambers with each prospective juror individually, rather than in the courtroom in front of the entire venire. However, the prosecutor asked some of the prospects a series of questions relevant to the issue of mental illness. With 9 of the 12 jurors who were ultimately impaneled, counsel prefaced this line of questioning with the following, or a similar, remark: “You have also heard the Judge say in the courtroom that there is an alternative plea of guilty but mentally ill here.”

Despite the earlier references to defendant’s “alternative plea,” no evidence relevant to mental illness was presented to the jury, and in closing argument defense counsel made the following statement:

“When you were being questioned as to your ability to serve as jurors, the State asked all of you about the question of mental illness. No psychiatrists were called to testify in this case. We have not put any evidence in as to mental illness. There will be no instruction given to you as to mental illness. We have not really tried to show it to you. We are not claiming that she was mentally ill. It is a confusing principle for lawyers, also obviously would have been confusing to you and therefore no mention of it has been made at this trial and we don’t intend to ask you to do anything about the mental illness. It is completely out the door, out the window, not in the house.”

The jury was not given an instruction as to guilty but mentally ill. However, at no time subsequent to voir dire did the trial judge address the jury as to this particular plea. Even though defense counsel made the statement set forth above, the jurors were never told by the court that the plea had been withdrawn.

Defendant contends that the trial court erred in allowing a plea of guilty but mentally ill to be made to the jury and that defense counsel’s entry of a guilty but mentally ill plea to the jury constituted ineffective assistance of counsel. With regard to both arguments, defendant asserts that she must be given a new trial. We agree that defendant is entitled to a new trial, although we decide the matter on only one of the grounds raised by defendant.

To begin with, we agree with defendant that the controlling statutes do not contemplate that a guilty but mentally ill plea is to be made to a jury. The concept of guilty but mentally ill may arise in the course of a jury trial, but not in the context of a plea.

Section 113 — 4 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 113—4) provides for a plea of guilty but mentally ill. When such a plea is made, however, it may not be accepted by the trial court until the defendant has had a psychological examination and waived his right to trial, and the judge has examined the psychiatric report, held a hearing on the issue of defendant’s mental condition, and been satisfied that there is a factual basis that defendant was mentally ill when the offense was committed. (Ill. Rev. Stat. 1987, ch. 38, pars. 113—4(d), 115—2(b).) When the statutory requirements have been completed, the trial court decides whether to accept or refuse the plea. If it is rejected, the matter proceeds to trial. If, on the other hand, the plea is accepted, there will be no trial. Defendant will simply be sentenced pursuant to section 5— 2 — 6 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—2—6), which provides for psychological examination and treatment of a defendant’s mental illness. Thus, a guilty but mentally ill plea is made to and disposed of by the court without a jury.

The concept of guilty but mentally ill, however, may come to the jurors’ attention within the framework of an insanity defense. Mental illness, in and of itself, is not an affirmative defense but may be accepted as a finding when the affirmative defense of insanity is raised. (Ill. Rev. Stat. 1987, ch. 38, par. 6—4.) Guilty but mentally ill may also be the subject of a jury instruction and may be returned as a special verdict, but, again, only if an insanity defense has been presented at trial. (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j).) In sum, as we read the statute, it was not intended that guilty but mentally ill should be a plea to a jury. Moreover, there is no contention here that defense counsel presented an insanity defense. Therefore, there was no statutory basis which would have warranted presenting defendant’s guilty but mentally ill position to the jury.

Allowing defendant’s plea to go to the jury was not only not in keeping with the statute, but it also compromised defendant’s position. The record reflects that both defense counsel and the court, and perhaps the prosecutor, viewed guilty but mentally ill as an alternative plea to defendant’s initial plea of not guilty. That is exactly how the plea was described to the jury — as an alternative plea. This put defendant in the unenviable position of pleading both guilty and not guilty.

A person who suffers from mental illness, but is not insane at the time he commits an offense, is not relieved of criminal responsibility for his conduct. (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(c); People v. Seuffer (1991), 144 Ill. 2d 482, 516; People v. Crews (1988), 122 Ill. 2d 266, 278.) A guilty but mentally ill plea differs from a guilty plea only as to sentencing, which provides for certain psychological help to be given to a defendant. Thus, that defendant has pleaded mental illness does not make the guilty portion of his plea anything less than an unconditional guilty plea. Consequently, with regard to her guilt or innocence, defendant’s plea of guilty but mentally ill was tantamount to a straight plea of guilty. A guilty plea admits every material fact alleged in an indictment and all elements of a charged offense. (People v. Caplinger (1987), 162 Ill. App. 3d 74, 79-80.) Hence, the jurors were told that defendant had pleaded not guilty but also had admitted she committed the offense with which she was charged.

Even if it were appropriate to plead guilty but mentally ill to a jury, the plea made in this case would have been error. A guilty but mentally ill plea may be accepted before or during a trial only after the defendant has had a psychological examination and waived his right to trial, and the judge has reviewed the psychological report and held a hearing. It is not contested that none of these steps were taken after defense counsel informed the court that defendant wanted to plead guilty but mentally ill as an alternative plea. Thus, the plea should not have been accepted by the trial court. It follows that it should not have been presented to the jury either.

Finally, with regard to the dual pleas, the trial court never told the jurors that defendant’s plea of guilty but mentally ill had been withdrawn and should not be considered by them. We recognize that defense counsel’s remarks during closing argument indicated some sort of retraction of the plea, but we agree with defendant that a trial judge has great influence over a jury (People v. Heidorn (1983), 114 Ill. App. 3d 933, 937) and that the jury rightfully looks to the judge, rather than counsel, for direction. In this instance, that direction was not forthcoming.

The trial court erred in accepting defendant’s guilty but mentally ill plea absent the statutorily mandated safeguards. The error was compounded when the court allowed the unauthorized plea to be made to the jury, particularly since the plea itself was not only tainted but also in direct conflict with defendant’s “alternative” plea of not guilty. Collectively, we believe the errors were sufficiently prejudicial to defendant to warrant a new trial.

At the very least, the information that defendant had made inconsistent pleas was likely a source of confusion and uncertainty to some of the jurors. One venireman’s reaction bears this out. In response to certain of the court’s questions, prospective juror Flood asked about the multiple pleas. After the court explained that defendant had pleaded not guilty and, in the alternative, guilty but mentally ill, the juror said:

“Okay. I guess what I have difficulty with is that second plea. If you are saying that, yes, the accident happened — And by saying guilty but mentally ill, aren’t your acknowledging that you did this? And I guess then if I am not impartial, I have difficulty with that second plea. It seems to me someone is saying I did it.”

Juror Flood was ultimately excused, but her confusion is understandable and likely was shared by other jurors.

Far worse than any mere confusion caused by inconsistent pleas was the prejudice caused to defendant when the jury was told she had pleaded guilty. In People v. Haycraft (1966), 76 Ill. App. 2d 149, defendant’s guilty plea was withdrawn prior to trial by leave of court. At trial a witness revealed, only briefly, that the accused had previously pleaded guilty to the charge for which he was on trial. An objection was promptly sustained, the testimony was stricken, and the jury was admonished to disregard the testimony in its entirety. Nevertheless, we reversed the defendant’s conviction, citing, in particular, Kercheval v. United States (1927), 274 U.S. 220, 71 L. Ed. 1009, 47 S. Ct. 582, where the court found that the introduction of defendant’s guilty plea may have turned the scale against him and, as a result, reversed his conviction. We stated in Haycraft:

“It is *** difficult to conceive a disclosure more apt to influence a jury than the information that the accused had at one time pled guilty to the commission of the crime with which he stands charged. The average juror *** would be unable to contemplate that a man would admit guilt to a crime if in fact he were not guilty. Furthermore, he would be unable to erase that disclosure totally from his mind regardless of an admonishment from the court, however prompt and however strong. *** [Ojnce that disclosure has been made we cannot say that he has received the fair and impartial trial to which he is entitled.” Haycraft, 76 Ill. App. 2d at 153.

A factual situation very similar to that in Haycraft arose in People v. Bain (1973), 10 Ill. App. 3d 909, but the trial court refused to declare a mistrial, remarking that the witness revealed defendant’s earlier guilty plea in response to a question by defense counsel. Noting that counsel’s question had not been asked purposely, to cause a mistrial, the Bain court followed Haycraft and echoed our reasoning that it is devastating to an accused in the minds of the jury to reveal, “however briefly or inadvertently,” that defendant had previously “admitted his guilt to the very crime for which he was being tried.” Bain, 10 Ill. App. 3d at 911.

In a similar vein, we note Supreme Court Rule 402(f) (134 Ill. 2d R. 402(f)), which renders testimony about plea discussions inadmissible against criminal defendants. Illinois courts have recognized that use of such testimony in violation of the rule has a devastating effect and have held that the use of such testimony was so prejudicial as to require reversal even absent an objection and despite overwhelming evidence of defendant’s guilt. (See People v. Friedman (1980), 79 Ill. 2d 341, 353 (and cases cited therein); see People v. Cowherd (1983), 114 Ill. App. 3d 894, 899 (and cases cited therein).) Further, in Cowherd we found that the use of testimony pertinent to a plea-related discussion was also a substantial denial of defendant’s constitutional rights for purposes of securing relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122—1 et seq.). The sum of the authority we have cited persuades us that defendant’s conviction must be reversed.

We recognize that the facts of this case are not the same as those of any of the cases discussed above. Defendant’s plea was guilty but mentally ill rather than a guilty plea. While such a plea is not as clear cut as a straight plea of guilty, the use of the word “guilty,” as shown by juror Flood’s reaction, is tremendously significant. The plea here was not revealed to the jury in the form of testimony or other evidence, as in the cited cases. Rather, but perhaps even more telling, it was stated to the jurors by the judge, at least once and in some cases repeatedly, depending on the day the juror first appeared on the venire. In the case of nine jurors, the fact that defendant had pleaded guilty but mentally ill was again brought to mind by the prosecutor. Finally, although defense counsel attempted in closing argument to tell the jury that defendant was not pursuing any defense of mental illness, as far as the jurors were concerned defendant was amenable to their being told that she had pleaded guilty. Counsel never objected when they were told and reminded of this plea. Nor did counsel voice any concern about the conflicting pleas. The jury was never told by the trial court that the plea had been withdrawn and never admonished that it should be disregarded. The jury was free to go on believing, as it had been told by the court, that defendant had pleaded both not guilty and guilty but mentally ill.

The State points out that the meaning of guilty but mentally ill was not explained to the jurors, the issue was not raised during trial, and defense counsel assured the jury that mental illness was not an issue. The State posits that the contemporaneous but conflicting pleas were, at most, ambiguous. While much of what the State argues may technically be true, we do not agree that defendant’s due process claims are greatly exaggerated and highly speculative, as claimed by the State. What we said in Haycraft bears repeating here:

“We can think of nothing more damaging to an accused in the minds of the jury than the disclosure, however brief, that he had admitted guilt to the charge against him, and once that disclosure has been made we cannot say that he has received the fair and impartial trial to which he is entitled.” Haycraft, 76 Ill. App. 2d at 153.

The jury here was well aware that defendant had pleaded guilty, and in fact pleaded guilty and not guilty simultaneously. Defendant was irreparably prejudiced by revelation of the guilty plea in and of itself and also by the entry of conflicting pleas. Thus, she was denied a fair trial in violation of her right to due process and must be given a new trial.

We believe a final observation is in order regarding the errors made in this case. There is no question that a trial judge is obliged to make sure that a defendant is tried before a fair and impartial jury. (People v. Seuffer (1991), 144 Ill. 2d 482, 507; People v. Taylor (1984), 101 Ill. 2d 377, 387.) Further, the trial judge’s role is not merely that of a presiding officer or an umpire; he is responsible for the justice of the judgment that he enters. (Wozniak v. Segal (1974), 56 Ill. 2d 457, 460; Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 106.) Although we have decided this case on the basis of trial court error, we cannot leave it without remarking that the trial judge is not the only one charged with the weighty responsibility of seeing that justice is done in a criminal trial. It goes without saying that defense counsel has an obligation of the highest order to protect the rights of his client. The prosecution, as well, must share in the obligation imposed by the demands of justice. His responsibility is not limited to the State. Rather, he represents all of the people, including defendants, and it is his duty to see that defendants receive a fair trial, no matter how guilty they may be. (People v. Faulkner (1972), 7 Ill. App. 3d 221, 225.) This case serves as a compelling reminder that all of those responsible for accomplishing justice in and through the trial process must be ever vigilant to prevent breakdowns, such as the one that occurred here, from repeating themselves in the future.

Inasmuch as we have found a breach of defendant’s constitutional rights based on due process, we express no opinion as to whether defense counsel’s entry of a guilty but mentally ill plea to the jury constituted ineffective assistance of counsel.

Since this matter must be remanded for a new trial, we turn our attention now to defendant’s claim that she should have been granted a substitution of judge. On the day trial was scheduled to start defendant filed a motion and affidavit seeking a substitution of judge for cause, pursuant to section 114 — 5 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 114—5). Defendant alleged that a close, personal relationship existed between Thomas Baker, the State’s Attorney of McHenry County, and Judge Michael Sullivan, the trial judge, in that (1) they were neighbors; (2) the judge’s wife was the godmother of one of Mr. Baker’s children; and (3) the State’s Attorney had chaired the judge’s election campaign. A hearing was held in front of another judge. While evidence was not taken, the State did not deny defendant’s allegations. Defendant argued that, in light of the relationship between the judge and State’s Attorney, she feared she could not receive a fair trial. The motion was denied. Defendant insists that the denial constituted reversible error.

While her argument is not altogether clear, defendant appears to rely on language in Canon 3 of the new Code of Judicial Conduct (Judicial Code), which became effective on January 1, 1987, and which states with regard to disqualification:

“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
(a) he has a personal bias or prejudice concerning a party or his lawyer ***.” (134 Ill. 2d R. 63(C)(1)(a).)

As defendant correctly notes, the rule requires a judge to recuse himself when his participation might reasonably give rise to questions regarding his impartiality. We agree that this includes situations involving the appearance of impropriety. However, despite defendant’s suggestion to the contrary, although the rule sets standards for judicial conduct, it neither states nor seems to imply that the mere appearance of impropriety, by itself, is sufficient to find that defendant is entitled to a new trial. We do not believe the language of the Judicial Code changed the controlling authority in this regard.

A showing of actual prejudice must be made in order to obtain a change of venue from a trial judge in a pending action after he has made a substantive ruling. (People v. Vance (1979), 76 Ill. 2d 171, 181; People v. Moffat (1990), 202 Ill. App. 3d 43; Gluth Brothers Construction, Inc. v. Union National Bank (1989), 192 Ill. App. 3d 649, 656; In re Marriage of Click (1988), 169 Ill. App. 3d 48, 53; People v. Anderson (1981), 95 Ill. App. 3d 143, 147.) The burden of establishing actual prejudice is on the defendant. (People v. Neumann (1986), 148 Ill. App. 3d 362, 370.) It is not disputed that Judge Sullivan had made substantive rulings. After carefully reviewing the allegations of defendant’s motion, we conclude that she has not shown the requisite prejudice.

First and foremost, State’s Attorney Baker did not personally prosecute this case. That was done by Baker’s first assistant. Defendant acknowledges this but posits that the State’s Attorney’s personal prestige is on the line when a case like this one — which she appears to characterize as an unusual and high profile case — is tried by anyone in the State’s Attorney’s office. Defendant urges that the judge’s concern for the State’s Attorney’s reputation is likely to influence his decisions, no matter that the State’s Attorney is not personally prosecuting the case. Defendant offers no authority for this position, but even if she did, the fact would remain that the alleged bias in favor of the State’s Attorney, even when viewed most favorably to defendant’s position, would still necessarily be one step removed from the prosecutor actually in the courtroom.

We feel it is important to add that, as a practical matter, were we to adopt the position urged by defendant, it would mean that Judge Sullivan would be disqualified from sitting on any cases, criminal or civil, involving the office of the State’s Attorney, no matter who was doing the actual prosecuting, for as long as Mr. Baker is the State’s Attorney of McHenry County. The same would likely be true of any judge with whom State’s Attorney Baker could be said to have a relationship similar to that he shares with Judge Sullivan. The mere fact of this result raises serious doubts as to the viability of defendant’s argument.

Even when we do examine the relationship between the judge and State’s Attorney, we are unable to discern prejudice sufficient to warrant reversal. Defendant apparently concedes that the existence of a mere friendship between a lawyer and a judge does not obligate the judge to recuse himself. She maintains, however, that the relationship between Judge Sullivan and State’s Attorney Baker was something far more than a mere friendship, something, in fact, sufficient to have resulted in substantial prejudice against her and sufficient, therefore, to require a new trial. Defendant’s allegations do not support this conclusion.

That the judge and the prosecutor happen to be neighbors is of no consequence. Neighbors are not inevitably friendly and, in fact, sometimes have no personal relationship at all. Merely being a neighbor, by itself, does not necessarily require recusal. In People v. Anderson (1981), 95 Ill. App. 3d 143, the defendant sought the disqualification of the trial judge who found him guilty because the judge was a former neighbor of a prosecution witness who was the complainant’s mother. The court held the defendant had not shown that he had been denied a fair trial because he had not proved that the nature of the judge’s acquaintance with the witness was substantial enough to make unfairness probable. Likewise here, we fail to see how the mere fact that Judge Sullivan and the State’s Attorney are neighbors made it likely that defendant would not have a fair trial.

Defendant’s allegation that Judge Sullivan’s wife was a godmother of one of the State’s Attorney’s children is not compelling that defendant was denied a fair trial, either. For all that is revealed by the motion, Mrs. Sullivan could have become the child’s godmother prior to her marriage to the judge. At any rate, the naked allegation tells us little of the relationship between the judge and State’s Attorney Baker.

Finally, that the State’s Attorney chaired the judge’s election committee is no more determinative in favor of defendant than the previous two points. In Gluth Brothers Construction, Inc. v. Union National Bank (1989), 192 Ill. App. 3d 649, we determined that there was neither the appearance of impropriety nor actual prejudice because, although the plaintiff’s attorney had served as the trial judge’s campaign manager, that connection had occurred nearly six years earlier, had been fully disclosed at the time, and was a matter of public knowledge. Further, there was neither an allegation nor evidence that any kind of relationship between the two men continued on, or was current and ongoing, after the judge’s election. Here, defendant does not indicate how long ago the election took place, only that it was before the State’s Attorney himself was elected. Presumably, because he himself was elected at a separate, later election, the State’s Attorney must have worked for the judge’s reelection some time ago. It seems reasonable to assume, also, that, like the relationship in Gluth, the connection between Judge Sullivan and Mr. Baker would have been disclosed and well known to the public at the time of the election. Too, even assuming that they were close at one time, we perceive nothing in defendant’s allegations to show that the judge and the State’s Attorney have stayed close since both were elected to their present positions. We do not believe defendant’s allegations reflect that, at the time of her trial, Judge Sullivan and State’s Attorney Baker shared such a close relationship that her right to a fair trial was threatened.

Defendant points out that the defendant in Gluth did not call the court’s attention to the basis for recusal until the entire trial was completed. She implies that the Gluth defendant was seeking to void the unfavorable decision it had received from the court rather than disqualification from future proceedings, as she sought here. While this may be true, it does not change the requirement, acknowledged by the Gluth court, that a party seeking a judge’s recusal must show actual prejudice to itself. Defendant’s attack on Gluth is of no avail. We conclude that Judge Sullivan was not required to disqualify himself on the ground that Mr. Baker at some unspecified time served as his campaign chairman.

Even when we view defendant’s allegations collectively, we are not persuaded that the actual prejudice necessary for reversal has been demonstrated. Essentially, defendant asserted that the friendship between Judge Sullivan and the State’s Attorney was so strong that it would necessarily override the judge’s ability to be fair and impartial. In In re Marriage of Click (1988), 169 Ill. App. 3d 48, we denied relief to a petitioner who alleged that she was prejudiced by the trial judge’s refusal to recuse himself since the judge and her former spouse’s attorney were both members of an exclusive legal organization. We could find no support for petitioner’s contention of prejudice either in the record or in the authorities cited by petitioner. More significantly for purposes of this case, we pointed out that petitioner cited no authority to support her position that suspected bias or prejudice on the part of a trial judge can serve as the basis for a new trial. Click, 169 Ill. App. 3d at 53.

Similarly, in People v. Moffat (1990), 202 Ill. App. 3d 43, the trial judge’s son, who was an assistant State’s Attorney, was seen in the courtroom talking to the prosecutor, defense counsel, and his father. Defendant claimed that this gave the appearance of impropriety and required reversal. The court said that the record did not support defendant’s allegations of impropriety and, therefore, he had not proved actual prejudice, or even the probability of unfairness. The court added that the mere fact that the judge’s son was an assistant State’s Attorney “would not warrant the assertion that defendant was deprived of a fair trial. It is preposterous to assume that a judge’s propensity to convict criminal defendants would increase simply because his or her son or daughter is an assistant State’s Attorney.” Moffat, 202 Ill. App. 3d at 56-57.

Moffat differs from this case in that defendant in Moffat attacked the impartiality of the trial judge for the first time after the trial was over. As stated by the Moffat court, “defendant apparently only felt that he had been prejudiced after he was convicted.” (Moffat, 202 Ill. App. 3d at 56.) Nevertheless, we think defendant’s allegations of prejudice here are also speculative and based on the assumption that Judge Sullivan could not be fair to this defendant solely because she was being prosecuted by Mr. Baker’s office. Such an assumption falls into the same category as the “suspected” bias which we disapproved in Click.

In sum, defendant has not shown any actual prejudice to herself as a result of the relationship between Judge Sullivan and State’s Attorney Baker. Defendant’s reliance on United States v. Murphy (7th Cir. 1985), 768 F.2d 1518, is not helpful to her position since the close, personal relationship there was between the trial judge and the lawyer actually prosecuting the case. Murphy does not address the circumstances of this case. Furthermore, the Murphy court made clear that the statutory recusal provision asserted by defendant there applied to circumstances involving the appearance of impropriety, rather than actual conflict of interest situations. After observing that cases in which appearance questions are waived if not timely asserted show that appearance of impropriety does not undercut personal rights, the court added, “And unless an error affects substantial rights, it is not a basis of reversal.” (Murphy, 768 F.2d at 1540.) We have closely read Murphy and find that, although the court did not address the question directly, it certainly implied in ample dicta that reversal is not the proper consequence in a recusal situation involving only the appearance of impropriety, rather than actual prejudice. Thus, we do not believe Murphy to be as inconsistent with the decision we reach here as is suggested by defendant’s argument.

Defendant’s final contention is that evidence of prior misconduct on her part was improperly admitted and, therefore, a new trial was required. Prior to trial defendant made a motion in limine to exclude evidence of prior acts, by her, similar to the offense for which she was on trial. The court took the motion under advisement. Subsequently, following an offer of proof by the State, the court ruled, and instructed the jury, that the testimony of Sandra Bielski was being received solely on the issue of the defendant’s intent and motive.

Bielski testified that on July 13, 1988, two days before the incident involved in this case, she had been at Robert Kosick’s home waiting for Kosick to arrive home from work. When he did not appear she started walking north on Elmleaf Street, the road in front of Kosick’s home. She walked on the gravel at the side of the road. The witness saw defendant’s car turn a corner up ahead of her and come southbound on Elmleaf Street in the same lane where she was walking. Defendant, who was driving the car, swerved toward Bielski, and the front fender or bumper swept against Bielski’s leg. Defendant kept going. The witness did not hear the car brake or the tires squeal. Defendant did not turn the car around or come back to talk to Bielski.

About 10 minutes later, according to her testimony, Bielski was walking along a different road when defendant, still in her car, pulled up behind her. The witness walked further into the adjoining field, away from the edge of the road. Defendant swerved the car into the field, slammed on the brakes, got out of the car, and started yelling at Bielski, who was then a couple of feet away from the stopped car. Defendant asked Bielski, “What are you doing fucking around with Bob?” The witness replied that she was not, and, after some other accusations and denials, defendant reached out and grabbed an earring Bielski was wearing. The earring had been given to the witness by Robert Kosick. Saying, “Give me this,” defendant pulled the stud-style earring from Bielski’s pierced right ear. Defendant added, “You better stay away from Bob.” Bielski replied, “Fine,” and defendant got back in her car and drove off. Before beginning its deliberations, the jury was again given an instruction that Bielski’s testimony was to be considered only for the limited purpose of determining defendant’s intent and motive.

Defendant specifically asserts that Bielski’s testimony that defendant tore an earring from her ear is irrelevant on the question of defendant’s intent or motive to commit the charged crimes. Defendant further attacks Bielski’s testimony in its entirety, claiming it was more prejudicial than probative. Neither of defendant’s arguments can be sustained.

It is well established that a defendant’s prior, but uncharged, misconduct is not admissible for purposes of establishing his bad character or propensity to commit crimes or bad acts, because the prejudicial impact of such evidence outweighs its minimal probative value and undermines the presumption of innocence. (People v. Hendricks (1990), 137 Ill. 2d 31, 52.) However, it is equally well established that an exception is made to the general rule of inadmissibility for evidence probative of motive, intent, identity, absence of mistake or other material facts in issue even though such evidence reveals prior instances of uncharged misconduct by the defendant. (Hendricks, 137 Ill. 2d at 53.) Viewed against these principles, Sandra Bielski’s testimony regarding defendant’s actions on July 13, 1988, was properly admitted by the trial court.

Defendant’s attempt to separate out and characterize as irrelevant Bielski’s testimony that defendant pulled an earring out of her ear is strained and artificial. That particular testimony was not presented as evidence of a separate incident or act of misconduct or, as asserted by defendant, a collateral offense. Rather, it was part and parcel of the witness’ account of what happened to her, at the hands of the defendant, two days before the victim in this case was killed. In light of the gravity of the remainder of Bielski’s testimony, that defendant tried to hit her with a car, we think defendant has blown the earring portion of the incident out of proportion. Accordingly, we will treat the testimony as a whole.

Bielski’s testimony was properly admitted because it was highly relevant to a number of material issues in this case. Before discussing its relevance, however, we note that the testimony showed that defendant had a specific method of operation, or modus operandi, for dealing with girls who associated with her recently ex-boyfriend, Robert Kosick. Evidence of prior misconduct which shows modus operandi, when offered by the prosecution to establish the identity of the perpetrator, is admitted only on a strong and persuasive demonstration of similarity between the past and present conduct. (People v. McKibbins (1983), 96 Ill. 2d 176, 185.) However, a lesser showing of similarity is needed when modus operandi evidence is offered to negate inadvertence, accident, or other innocent intent. (McKibbins, 96 Ill. 2d at 185-86.) Identity is not an issue in this case. Defendant does not dispute that she was driving the car which struck Patricia Lauraitis. Moreover, the trial court made clear to the jury that Sandra Bielski’s testimony was admitted on the issues of intent and motive. Thus, a strong and persuasive demonstration of similarity is not necessary here. We find, however, that there are, in fact, striking similarities between the incident with Bielski and the incident involved in this case.

In both instances defendant’s car was her weapon. Both victims were new, female friends of Kosick, and both events occurred near Kosick’s home. Defendant attacked both girls in virtually the same fashion, at times when she was in control of the weapon and they were particularly vulnerable to that particular weapon, i.e., walking along the edge of the road. In our view, the likenesses were sufficient to support admission of the challenged testimony for purposes other than identification.

The occurrence was relevant on the question of defendant’s motive. It showed that she acted out of jealousy. All of her conduct at the time she grabbed Bielski’s earring clearly reflected that jealousy. More importantly, the incident in its entirety revealed that defendant intended to act in the way she did. Defendant drove away after swerving into Bielski and then located Bielski again a few minutes later on a different street. She pulled up behind Bielski before slamming on her brakes, got out of the car, yelled, and grabbed an earring from Bielski’s ear. This entire course of conduct demonstrates that the initial charge with the car, in which Bielski was swiped in the leg, was no accident. This evidence was probative on the issue of whether Patricia Lauraitis was struck intentionally. It was important because defendant’s weapon was a moving vehicle, and an attack with such a vehicle could readily be claimed to be a driving accident.

Defendant’s insistence that Bielski’s testimony should have been excluded because its prejudicial effect outweighed its probative value is not persuasive. Defendant argues that the evidence was not important on the issue of motive because there was other ample evidence of defendant’s jealous nature. She correctly notes that Robert Kosick and Jennifer Emrich gave testimony indicative of her jealousy where Kosick was concerned. While we would agree there was other evidence of defendant’s motive, nowhere else could it be seen so clearly, as we have described above, that defendant’s feelings of jealousy prompted her to deliberately drive a car into the object of that jealousy.

Too, defendant appears to misapprehend the intent that was revealed by the challenged evidence. We concur with defendant that Bielski’s testimony did not tend to prove the defendant acted with the intent, or mens rea, to kill Patricia Lauraitis. But, as we have discussed, it did reflect that striking Bielski’s leg was not accidental. Inasmuch as the evidence tended to show that defendant meant to drive her car into Bielski, we think it was highly probative with regard to what she meant to do when she swerved toward Patricia Lauraitis and Robert Kosick two days later. All in all, the evidence tended to prove material issues in this case, and we cannot say it should have been excluded because of its prejudicial effect.

Based on the reasoning set forth above, the defendant’s convictions are reversed, and the cause is remanded to the circuit court of McHenry County for a new trial in accordance with this opinion.

Reversed and remanded.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE LUND

text:
    RUSSELL E. SINCLAIR, Plaintiff-Appellant, v. STATE BANK OF JERSEYVILLE, Defendant-Appellee.
    Fourth District
    No. 4—91—0575
    Opinion filed March 5, 1992.

      J. Thomas Long and Steven D. Griffin, both of Farrell & Long, P.C., of Edwardsville, for appellant.
    Joel A. Kunin and Steven M. Wallace, both of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Russell Sinclair filed a two-count complaint against defendant State Bank of Jerseyville. Defendant moved to dismiss the complaint, alleging failure to state a cause of action (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), and the circuit court of Jersey County denied the motion. Plaintiff was unsuccessful in opposing defendant’s application to appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308). In Sinclair v. State Bank (1991), 207 Ill. App. 3d 430, 566 N.E.2d 44 (Sinclair I), appeal denied (1991), 139 Ill. 2d 605, our court reversed the trial court’s ruling on the motion to dismiss, but did not remand. Plaintiff’s petition for leave to appeal to our supreme court was denied. While the petition for leave to appeal was pending, plaintiff returned to the circuit court and filed a motion to amend, seeking to add a contract count. The trial court held that it was without authority to proceed further and denied plaintiff’s motion. Plaintiff appeals, contending the appellate court ruling on the Rule 308 appeal did not foreclose further proceedings on the trial level.

We initially observe that section 2 — 615(d) of the Code of Civil Procedure (Code) provides: “After rulings on motions, the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—615(d).) We are aware plaintiffs generally are granted at least one opportunity to amend their pleadings. Thus, if defendant had initially been successful with its section 2 — 615 motion to dismiss, plaintiff most likely would have been allowed to file an amendment to the complaint.

Procedural Background

On August 1, 1989, plaintiff and his wife (who was voluntarily dismissed from the case prior to this appeal) filed a two-count complaint against defendant State Bank of Jerseyville. Count I alleged fraud in connection with a previous loan transaction between plaintiff and defendant. Count II alleged a breach of defendant’s duty of good faith in its business dealings with plaintiff. Plaintiff and his wife had obtained a $450,000 loan from defendant in March 1983. As collateral for this loan, plaintiff and his wife granted mortgages to defendant on certain tracts of real estate in Jersey County, Illinois, and in Grundy County, Missouri. Plaintiff, individually, had also obtained a loan from defendant in 1981. That loan came due in December 1983. The larger loan came due in January 1984. Neither loan was paid when due, and defendant commenced foreclosure proceedings in both counties.

Plaintiff alleged in his complaint that he and defendant had agreed he would pay the interest due on the loans through January 31, 1984, and defendant would then dismiss the foreclosure actions and extend plaintiff’s notes. Plaintiff further alleged that he had paid the interest due in the amount of $46,870.61. Defendant, however, continued to pursue its foreclosure proceedings to a partial summary judgment in Grundy County, Missouri, and to a foreclosure decree and sale in Jersey County, Illinois. Plaintiff further alleged he was forced into chapter 11 bankruptcy proceedings because of defendant’s actions in continuing with the foreclosures.

Defendant’s motion to dismiss plaintiff’s complaint, alleging a failure to state a cause of action (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), was then filed and denied. The questions identified by the trial court for review in the Rule 308 appeal were as follows: (1) whether performance of a preexisting legal obligation as the result of an alleged intentional misrepresentation can constitute legally cognizable damages in an action predicated on fraud; and (2) whether plaintiff can state an action for breach of the obligation of good faith absent allegations of a contractual relationship and without reference to a specific contractual provision under which the defendant failed to perform in good faith.

This court answered both questions in the negative and reversed the trial court’s order denying defendant’s motion, as we have stated, with no remand to the trial court. Toward the end of the opinion, the following comment was made:

“Aside from the insufficient pleadings, plaintiffs would have difficulty establishing that a contract was formed when defendant allegedly promised to forbear from proceeding on the foreclosure if plaintiffs paid the interest due on the note. Plaintiffs gave no consideration for the promise as ‘[a] promise to do that which one is already legally obligated to do is no consideration and does not create a new obligation.’ [Citation.]” Sinclair, 207 Ill. App. 3d at 435-36, 566 N.E.2d at 47.

We note that the pleadings at the time of the decision which led to the Rule 308 appeal did not contain a contract count. After the reversal in Sinclair I, plaintiff filed his motions to amend, seeking to state a count III. This count alleged defendant had breached a contract with plaintiff to dismiss the foreclosure actions in return for his payment of the interest due on his notes. Defendant filed an objection to these motions, alleging that this court’s reversal, without remand, in Sinclair I constituted an adjudication on the merits and left the trial court without power to take any further action in the case. In response, plaintiff alleged the reversal was not with prejudice and that section 2 — 616(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a)) allows the trial court to permit amendment of pleadings at any time prior to final judgment. After a hearing on these motions and defendant’s objection, and after receiving the mandate in Sinclair I, the trial court denied plaintiff’s motions. Stating it was without authority to proceed further, the trial court ordered the cause stricken.

Defendant contends the above-quoted language from the Sinclair I opinion indicates the issue of whether plaintiff can state a cause of action for breach of contract has already been decided by this court. We need not decide this question. In Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 40-41, 572 N.E.2d 1258, 1262, our court held that in deciding the Rule 308 appeal in that case, it was not limited in scope to the identifying question. Schoonover held that in determining the propriety of the summary judgment order, all issues properly raised at the trial level could be considered. (Schoonover, 214 Ill. App. 3d at 41, 572 N.E.2d at 1262-63.) The Schoonover court stated:

“In reviewing an order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact does still exist.” Schoonover, 214 Ill. App. 3d at 41, 572 N.E.2d at 1262-63.

In our present case, no motion for summary judgment was involved, the only order being one ruling on two specific counts. Those two counts did not include contract allegations, so no legal questions relating to the contract issue were presented to or ruled upon by the trial court. The record on appeal would not relate, and there was no reason to argue, the contract issue in the Sinclair I appellate briefs. We conclude the Schoonover decision fails to provide authority to the Sinclair I appellate court for ruling on the then nonexistent contract issue. Schoonover also does not justify depriving plaintiff of the right to request amendment of his pleadings.

Defendant cites Martin v. Prairie Rod & Gun Club (1978), 65 Ill. App. 3d 952, 382 N.E.2d 1295 (Martin II), for the proposition that when an appellate court reverses a plaintiff’s summary judgment and also reverses the trial court’s ruling denying defendant’s motion to dismiss the plaintiff’s complaint for failure to state a cause of action and does not remand, plaintiff can no longer amend pleadings on the trial level. Martin II arose out of Martin v. Prairie Rod & Gun Club (1976), 39 Ill. App. 3d 33, 348 N.E.2d 306 (Martin I).

We first emphasize that the appeal in Martin I was from a final order, as contrasted with the Rule 308 appeal in Sinclair I. We also emphasize that the subject of the cause of action in Martin I was an option to repurchase real estate, which option was held to be in violation of the rule against perpetuities. Thus, the very subject matter of the law suit was in violation of the rule. After the appellate court decision in Martin I, no further theory of recovery could be pursued relating to the violating option.

Martin II arose because the plaintiff in Martin I was successful on the trial level in filing an amended count after the Martin I appellate opinion. Martin II was a Rule 308 appeal from the trial court’s ruling allowing the amendment. The appellate court in Martin II stated:

“The rule to be applied in the instant case is referred to in Hamilton v. Faulkner (4th Dist. 1968), 96 Ill. App. 2d 415, 418, 238 N.E.2d 631, where the court states:
‘Where, after reviewing a case on its merits, this court reverses the judgment of the trial court or reverses and remands the cause to that court with directions to enter a specific judgment, there is nothing for that court to decide or to determine. Neither the trial court nor the parties have any authority to take any further action in the case except such as is necessary to carry out the mandate of the reviewing court.’
In the instant case, we reversed the judgment of the circuit court without remanding the case, as we have noted. The reversal operated as an involuntary dismissal of the existing counts of the complaint, pursuant to Rule 273 (Ill. Rev. Stat. 1977, ch. 110A, par. 273), and also operates as an adjudication on the merits of the cause as then presented to this court. The complaint was a complaint for specific performance. We determined that it could not be maintained as a matter of law, by reason of the violation of the rule against perpetuities. Accordingly, when the circuit court permitted the filing of the ‘amendment’ to the complaint of the document labeled ‘Count III’ after the issuance of our mandate, it was acting outside the scope of our mandate and beyond the authority of the court in that case. That case was concluded following disposition of the appeal as to the validity of the preemptive right provision and the right to specific performance of the preemptive provision. We determine that orderly procedure requires that the document described as ‘Count III’ be stricken and that the order of the Circuit Court of Henderson County, allowing the filing of such count, be reversed and vacated.” Martin, 65 Ill. App. 3d at 955, 382 N.E.2d at 1297.

The original appeal in Hamilton v. Faulkner (1967), 80 Ill. App. 2d 159, 224 N.E.2d 304, was from judgment after trial on the merits of the case. When the case again came before the appellate court in Hamilton v. Faulkner (1968), 96 Ill. App. 2d 415, 238 N.E.2d 631, the court cited Morris v. Beatty (1945), 390 Ill. 568, 62 N.E.2d 478, as authority for the reasoning quoted in Martin II. Morris was basically concerned with whether an appellate opinion was ripe for review by the supreme court. Morris sets forth the evolution of the holding that an appellate opinion which reversed and remanded generally was not appealable, and an opinion which reversed and remanded with specific instructions limited the trial court’s authority. (Morris, 390 Ill. at 572, 62 N.E.2d at 480.) Morris obviously preceded the Illinois Constitution of 1970 and did not relate to the issue presented by the present case.

In summary, it appears that the appellate responsibility in Rule 308 appeals is to answer the questions properly raised below concerning the order which is on appeal. Going beyond the record on appeal obviously deprives the parties of the right to adequately present their case. The failure to remand may prohibit further trial court proceedings where, as in Martin I, the appellate court has ruled no cause of action can exist. Generally, however, when the appellate decision only involves specific pleadings which were not dismissed on the trial level, and does not decide the merits of the case, the reversal without remand should not prohibit a subsequent motion to amend pleadings. Cases before this court have involved complaints that have been amended four or five times. While we might doubt the wisdom of allowing so many amendments, we do find it incongruent to say plaintiff may lose the right to amend because a defendant is first successful in obtaining a Rule 308 appeal on a pleading issue and then further benefits from an appellate opinion reversing the trial court and not remanding. Plaintiff here should not be denied the opportunity to amend his complaint merely because the invalidity of his legal theories was determined first in the reviewing court, rather than at the trial level. We conclude that Rule 308 appeals should not deprive the parties of the amendment process unless the Rule 308 appellate opinion necessarily forecloses all theories of recovery.

Reversed and remanded.

KNECHT and COOK, JJ., concur.