                                No. 2--05--0366          Filed: 7-17-07
______________________________________________________________________________

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       ) No. 03--CF--277
v.                                     )
                                       )
PAUL D. HOERER,                        ) Honorable
                                       ) James K. Booras,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE O'MALLEY delivered the opinion of the court:

       Defendant, Paul D. Hoerer, appeals from his conviction after a jury trial of unlawful delivery

of a controlled substance (720 ILCS 570/401(f) (West 2002)) and involuntary manslaughter (720

ILCS 5/9--3(a) (West 2002)). He contends that his counsel was ineffective for stipulating to the

admission of testimony that defendant had entered into plea negotiations with the State and that the

trial court committed reversible error in allowing the State to elicit testimony regarding a sexual

assault allegedly committed by a codefendant. For the reasons that follow, we reverse defendant's

conviction and remand the cause for a new trial.

       Defendant was charged in connection with an incident in which he and several friends,

including codefendant Joshua Boand, allegedly ingested methadone Boand had obtained from a

methadone clinic he was attending.1 The evidence indicated that a woman who was among the group

       1
           Boand was tried and convicted of various crimes in connection with the same incident, but,
No. 2--05--0366


of friends fell unconscious and eventually died as a result of her methadone ingestion and that, if the

friends had sought medical assistance on the woman's behalf on the night in question, instead of

waiting until the next day, she might have survived. After hearing the evidence and deliberating, the

jury convicted defendant of involuntary manslaughter and unlawful delivery of a controlled substance.

Defendant was sentenced to two concurrent five-year terms of imprisonment, and, following the trial

court's denial of his posttrial motion, he timely appeals.

       On appeal, defendant first claims that his counsel was ineffective for stipulating to the

admission of defendant's testimony, given when he testified as a prosecution witness in Boand's case,

that he had entered into plea negotiations with the State. As relevant here, that testimony read to the

jury included the following passages from Boand's defense counsel's cross-examination:

               "Q. Mr. Hoerer, *** when you testified on direct examination, you have testified that

       you have no deal with the prosecution, is that correct, sir?

               A. That's correct.

               Q. In fact, you indicated that no promises have been made in any way to you, correct?

               A. That's true.

               Q. And as I understand the wording you used at some point was there is no hint of

       a deal as far as you're concerned, is that correct?

               A. Yes, that's correct.

               Q. Are you telling this jury, Mr. Hoerer, that the sole reason you are here is because

       you believe it's the right thing to do?



on appeal, his convictions were reversed and his case remanded for retrial. See People v. Boand, 362

Ill. App. 3d 106 (2005).

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              A. Yes, telling the truth is the right thing to do.

              Q. You are telling the jury, I take it, that you are here because of a sense of justice

      that you feel [the victim] is entitled to, is that correct, sir?

              A. Yes, I do.

                                                 ***

              Q. Mr. Hoerer, as you sit here, isn't it a fact that you hold out some hope that by

      testifying in this case; by waiving your right to remain silent; by coming in here and testifying

      for the prosecution, you hold out the hope that you can influence them in you're your [sic]

      cases [that] are going to be prosecuted, yes or no?

              A. Telling the truth here helps me sleep at night.

                                                 ***

              Q. Mr. Hoerer, you said that it is not on your mind nor has it entered your mind that

      your testimony here could in some fashion benefit you, is that correct, sir?

              A. Well, I would hope that by telling the truth *** in some way, it might help my case.

                                                 ***

              Q. On May the 9th of 2003, Mr. Hoerer, you met with representatives of the State's

      Attorney's Office following your indictment on some of these charges, is that correct, sir?

              A. I believe so. I am not sure of the date.

              Q. Mr. Strickland[, the prosecutor in Boand's case,] was one of those present at that

      particular time, is that correct, sir?

              A. Yes.




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              Q. And this was about a year after the events in which [the victim] died, is that

      correct, sir?

              A. Yes.

              Q. You were represented by a lawyer at that time, correct?

              A. Yes.

              Q. And the purpose--that was a meeting that was held in this building here, isn't that

      right, sir?

              A. Yes, it was.

              Q. That would have been, I take it, in the State's Attorney's Office, correct?

              A. Yes.

              Q. And the purpose of that meeting, sir, was to see if some type of plea agreement

      could be reached between you and the State, isn't that correct?

              A. Yes.

              Q. You were exploring the possibility of seeing if you could engage in some kind of

      an agreement that would result in the disposition of the cases that you had against you, is that

      correct, sir?

              A. Yes, I was.

              Q. You had your lawyer with you at that time, isn't that correct?

              A. Yes, I did.

              Q. And you were told at that time that before any subject or any type of agreement

      could be reached, the State would like to speak with you, isn't that correct?

              A. Yes.



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                                               ***

              Q. And you were told at that time, weren't you, that whether or not an agreement will

      be reached would depend on the information that you provided. That's a fact, isn't it?

              A. Yes.

                                               ***

              Q. You had the benefit at that time *** of having some idea of what this investigation

      involved, correct?

              A. Yes.

              Q. You were aware at that time that there were available to you and your attorney

      various investigative reports that were prepared in conjunction with these events, isn't that

      correct, sir?

              A. Yes, we had the discovery.

              Q. And as part of that discovery process, I take it you, at some point, reviewed, as

      best you could, the various reports that were in existence at that time, isn't that correct, sir?

              A. Yes, I looked them over.

              Q. I take it you had an opportunity to discuss the content of those reports with your

      attorney?

              A. Yes.

                                               ***

              Q. And it was after you had reviewed the reports and after you had discussed it, that's

      when you go into the State's Attorney's Office, isn't that correct, sir?

              A. Yes.



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               Q. That's when you say: Look. I would like to see if I could reach a plea agreement

       with you with respect to my cases, is that correct, sir?

               A. Yes."

       Defendant argues that his counsel was ineffective for stipulating to the admission of his

testimony (from Boand's case) that he entered into plea negotiation discussions with the State,

because, under Supreme Court Rule 402(f) (177 Ill. 2d R. 402(f)), such statements are inadmissible

against a criminal defendant. To determine whether a defendant was denied the effective assistance

of counsel, we apply the two-pronged test developed by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by

our supreme court in People v. Albanese, 104 Ill. 2d 504, 526 (1984). A defendant alleging

ineffective assistance of counsel will prevail only where he shows: (1) counsel's performance fell

below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687,

80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Albanese, 104 Ill. 2d at 525.

       To establish deficient performance under the first Strickland prong, the defendant must

overcome the strong presumption that counsel's action or inaction was the result of sound trial

strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007). "This means the defendant must show that

counsel's errors were so serious, and his performance so deficient, that he did not function as the

'counsel' guaranteed by the sixth amendment." Perry, 224 Ill. 2d at 342. Defendant argues that his

counsel's performance fell below an objective standard of reasonableness because counsel stipulated

to having the above-quoted testimony read to the jury despite its prohibition under Rule 402(f). Rule

402(f) provides as follows:



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        "If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or

        is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review,

        neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible

        against the defendant in any criminal proceeding." 177 Ill. 2d R. 402(f).

        The supreme court's purpose in promulgating Rule 402(f) was "to encourage the negotiated

disposition of criminal cases by eliminating the risk that juries will hear statements or admissions made

by defendants during plea negotiations." People v. Hart, 214 Ill. 2d 490, 502 (2005). The State's

primary challenge to defendant's argument is its assertion that the testimony here was not plea-related

under the test articulated in Hart and People v. Friedman, 79 Ill. 2d 341 (1980), and thus did not

violate Rule 402(f).

        The test the State references requires that courts consider, "first, whether the accused

exhibited a subjective expectation to negotiate a plea, and, second, whether that expectation was

reasonable under the totality of the objective circumstances." Hart, 214 Ill. 2d at 503, citing

Friedman, 79 Ill. 2d at 351. The State urges that, here, under the first prong of the above test,

defendant's single reference to a plea negotiation "is not enough to demonstrate that defendant

'exhibited a subjective expectation to negotiate a plea.' " Under the second prong, the State urges that

"the 'objective circumstances' show that no plea bargain was entered into by the parties" and that

defendant "was testifying independently[, without any] promises or expectations."

        The State's argument is misdirected. The two-prong test quoted above is used "to determine

whether a particular statement is plea related." Hart, 214 Ill. 2d at 503. Here, the complained-of

testimony did not relay a "particular statement" purportedly related to plea negotiations. Rather, it

relayed the fact that plea negotiations took place. In Hart and Friedman, the statements were



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inadmissible because they indicated the defendant's desire to enter plea negotiations. Here, the

testimony admitted gave the jury prejudicial information even more directly. Rather than simply

relaying a statement that indicated defendant's desire to negotiate, defendant's testimony directly

stated that he in fact entered into plea negotiations. The two-pronged test the State seeks to invoke

is inapposite.

        Further, we reject the State's arguments that the testimony did not indicate that defendant had

a subjective expectation to enter into a plea negotiation and that the expectation was reasonable under

the totality of the circumstances. The testimony indicated that defendant and his lawyer met with

prosecutors to discuss a plea arrangement. This testimony shows not only a subjective and reasonable

belief that plea negotiations were possible, but also that defendant and the State actually entered into

plea negotiations. The State's primary argument, that defendant's testimony cannot have been plea-

related because there was no plea agreement, overlooks the point that, by its plain language, Rule

402(f) excludes evidence of plea discussions "[i]f a plea discussion does not result in a plea of guilty"

(177 Ill. 2d R. 402(f)). Likewise, the State's contention, raised at oral argument, that there could not

have been a plea negotiation here because there is no indication that the State ever made defendant

an offer, misses the point. A negotiation that does not lead to an offer does not cease to be a

negotiation. Defendant's testimony clearly indicates that a negotiation took place.

        Based on the above discussion, we conclude that the admission of defendant's testimony

regarding his attempted plea agreement violated Rule 402(f). In its brief, the State did not offer any

reasonable explanation for counsel's stipulation to allow this evidence. At oral argument, the State

urged that counsel's stipulating to allow the testimony could have been part of a strategy to show that




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defendant was upstanding and wanted to be truthful with investigators about this incident. We reject

the State's argument.

        Our supreme court has noted that the prejudicial effect of allowing the type of testimony at

issue here is so "devastating" that it will be considered prejudicial even in the face of overwhelming

evidence against a defendant. Friedman, 79 Ill. 2d at 353. Given the unusually prejudicial nature of

this testimony, we cannot agree with the State that stipulating to its admission in order to introduce

defendant's assertion that he was being truthful could be a matter of sound trial strategy.2

        After oral argument in this case, we granted the parties leave to file additional briefing so that

they could address the issues in light of our explanation at oral argument that the Friedman test is

inapposite. Though much of the State's supplemental briefing restates the Friedman arguments we

refute above, the State also added an argument that defense counsel's failure to object to the plea-

related testimony may have been part of a strategy of presenting the testimony outright instead of

allowing the State to use it to impeach defendant if he were to testify. Again, however, the State's

argument does not offer any strategic reason for allowing the admission of the portion of defendant's

testimony relating to plea negotiations.

Because the State does not make any persuasive argument that the introduction of the specific

testimony about which defendant now complains could have been part of a sound trial strategy, we



        2
            The State does not argue, and we therefore do not consider, that defense counsel might have

concluded that, upon learning that defendant testified against a codefendant at the codefendant's trial,

the jury would have assumed that defendant had brokered a deal with the prosecution, and, therefore,

the admission of his testimony that he did not get a deal and was testifying out of duty to the truth

would have actually decreased prejudice against him.

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must conclude that counsel's assent to the admission of the testimony was, indeed, not a matter of

sound trial strategy. Accordingly, we agree with defendant that, when counsel stipulated to allow

defendant's testimony regarding his plea negotiations to be read to the jury, counsel's level of

performance fell below an objective standard of reasonableness.

        Having determined that defendant has satisfied the first prong of the Strickland analysis, we

must determine whether defendant has demonstrated, under the second prong, that he was prejudiced

by his counsel's below-standard performance. As defendant points out, and as we noted above, our

supreme court has stated that a Rule 402(f) violation is considered so devastating and prejudicial to

a defendant that it constitutes reversible error even absent a contemporaneous objection from trial

counsel and even in the face of overwhelming evidence of guilt. See Friedman, 79 Ill. 2d at 353

("The State does not argue, nor would we agree, that the admission of this testimony was harmless

or that the error was waived by defendant's failure to object. This court, despite overwhelming

evidence of the defendant's guilt and despite his failure to object, has recognized the devastating effect

of such testimony and held that the error was so prejudicial as to require reversal ***. [Citations.]

We hold that defendant was denied the right to a fair trial by the introduction of a plea-related

discussion in violation of Rule 402(f)").

        Though the State did not offer any argument on the prejudice prong in its initial brief, it

argues in its supplemental brief that counsel's assent to the admission of the testimony in question

cannot have been prejudicial, because defendant's admission in the Boand trial that he provided the

victim with a controlled substance matched the admission he made in a statement to police that was

also admitted into evidence in defendant's trial. Thus, the State argues, "Defendant's admission that




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he had unlawfully delivered a controlled substance would have been before the jury, regardless of

whether defendant's testimony at the Boand trial had been introduced into evidence."

        The State's argument misses the point. The admission of defendant's prior testimony was not

an all-or-nothing proposition. Even if the remainder of defendant's testimony during Boand's trial was

admissible, defense counsel could have objected to the admission of the discrete portion of the

testimony that defendant now argues caused him prejudice, instead of acquiescing to allowing the

testimony in its entirety.

        The State also argues that the testimony cannot have been prejudicial because the jury

acquitted defendant of one of the charges against him. However, as defendant points out in his

supplemental reply brief, defendant was still convicted of two other charges, and there is no reason

to conclude that the admission of the plea-related testimony was prejudicial only as to one of the

charges. Given the supreme court's statement that the admission of testimony regarding plea

negotiations is "devastating," we hold that defendant was prejudiced as a result of his counsel's failure

to seek a redaction before defendant's prior testimony was presented. Accordingly, we must reverse

and remand this cause for a new trial.

        We note that retrial in this case will not violate defendant's protections against double

jeopardy, because we find that the evidence presented here was sufficient to prove defendant guilty

beyond a reasonable doubt. See People v. Mink, 141 Ill. 2d 163, 173-74 (1990) (although the double

jeopardy clause bars the State from retrying a defendant after a reviewing court has determined that

the evidence at trial was legally insufficient to convict, that clause does not preclude retrial of a

defendant whose conviction has been set aside due to an error in the proceedings leading to the

conviction).



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       In order to obtain a conviction of delivery of a controlled substance, the State must prove that

a defendant knowingly "manufacture[d] or deliver[ed], or possess[ed] with intent to manufacture or

deliver, a controlled or counterfeit substance or controlled substance analog." 720 ILCS 570/401

(West 2002). The evidence against defendant on this count included police testimony that defendant

admitted giving the victim a Vicodin pill.

       In order to obtain a conviction of involuntary manslaughter, the State must prove that a

defendant recklessly committed acts that "cause[d] the death [or were] likely to cause death or great

bodily harm to some individual." 720 ILCS 5/9--3(a) (West 2002). Briefly, the evidence against

defendant on this count included expert testimony that a methadone overdose was the cause of the

victim's death, testimony from defendant's companions that they had all ingested methadone provided

by Boand, testimony from defendant's companions and police (reporting statements from the

companions) that defendant prevented another friend from calling 911 earlier to summon help for the

victim, and paramedic and expert testimony that earlier intervention may have prevented the victim's

death. The evidence on both the delivery-of-a-controlled-substance count and the involuntary-

manslaughter count was sufficient to convince a rational trier of fact that the elements of the charged

crimes had been proven beyond a reasonable doubt, and, therefore, retrial will not offend double

jeopardy principles.

       Defendant's second contention on appeal is that the trial court erred in allowing the State to

elicit testimony from a witness to the effect that a codefendant had nonconsensual sex with her during

the evening in question. The testimony included the following exchange:

               Q. [Assistant State's Attorney] Do you remember--what do you remember after

       having drank the second dose of methadone?



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               A. Not much.

               Q. What’s the next thing you actually do remember after having drank that second

       dose of methadone?

               A. Like the first time I woke up?

               Q. Yes, the first time you woke up.

               A. Josh being on top of me.

               Q. What was he doing?

               A. Trying to have sexual intercourse with me.

               Q. Had you ever discussed having sexual intercourse with him that night?

               A. No.

               Q. Did you want to have sexual intercourse with him?

               A. No."

Defense counsel objected and a sidebar was held. Defense counsel argued that the testimony about

a separate crime was irrelevant to the charges against defendant and was prejudicial to him. The

State responded that "the fact is that [defendant] has admitted that [Boand] said he was going to try

and have sex with her that night and the methadone was a date-rape drug." The trial court overruled

the objection, stating that: (1) the State had the right to ask the witness what she remembered; (2)

the testimony was relevant to show motive; and (3) the testimony was not prejudicial.

       Only relevant evidence may be admitted at trial, that is, evidence having a tendency to prove

or disprove a fact that is of consequence to the determination of the action. People v. Harvey, 211

Ill. 2d 368, 392 (2004). "However, even when evidence is relevant, it may, in the trial court's

discretion, be excluded if its prejudicial effect substantially outweighs its probative value." People



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v. Lewis, 165 Ill. 2d 305, 329 (1995). Thus, in deciding whether to admit evidence, a trial court must

weigh the likely prejudicial effect of evidence against its probative value. People v. Walker, 211 Ill.

2d 317, 338 (2004).

       We begin with the trial court's first stated justification for allowing the evidence. Though the

evidence may have been probative on the issue of the witness's memory after she had taken the drug,

her recollection of events after taking the drug does not appear to have been disputed. Therefore,

to the extent the witness's testimony was probative as to her recollection, its probative value did not

outweigh its prejudicial effect. As for the trial court's second basis, a fair reading of the trial

transcript indicates that the State argued that the testimony was relevant as establishing a potential

motive for defendant's actions (or inaction) during the time that the victim was dying, and the trial

court correctly found the evidence to be relevant for that reason. However, we disagree with the trial

court that the evidence was not prejudicial to defendant. The evidence of Boand's sexual assault on

the witness was graphic and would tend to color a juror's view of defendant, thereby arousing

"prejudice and hostility on the part of the jury." See People v. Lampkin, 98 Ill. 2d 418, 428 (1983).

Thus, this evidence should be admitted only if its probative value outweighs the likely prejudice.

Moreover, in weighing the probative value of evidence against the likely prejudice, a trial court must

consider whether the evidence could be replaced by other, less prejudicial evidence. Here, it is

possible that, for the purpose of proving motive, the evidence regarding Boand's sexual assault could

be replaced by less inflammatory evidence regarding Boand's conversation with defendant regarding

his plans to have sex with the witness. See Walker, 211 Ill. 2d at 339 ("the prosecution has no

entitlement or right to present evidence that is unfairly prejudicial when equally probative,




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nonprejudicial evidence is available and will serve the same purpose"). If this issue arises again on

remand, the trial court should proceed in a manner consistent with this opinion.

       For the reasons given, we reverse the judgment of the circuit court of Lake County and

remand the cause for retrial.

       Reversed and remanded.

       HUTCHINSON and GILLERAN JOHNSON, JJ., concur.




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