next case on the call the docket this one is just the number six case number one one four four nine one forgot to ask other pronounce the defendant's last name people versus tres yack you can correct me want to say that one more time check i think something something along those lines in any event your honour's under no rational system of justice should death threats issued while brutally beating your wife be considered privilege marital communications subject to the marital privilege as you'll recall in this particular case the defendant and his wife laura were at home the phone rang laura answered the phone the defendant was concerned that she was speaking to the man would eventually become the victim in this case the defendant became enraged he began to beat her and began to duct tape her mouth duct tape her body hog tie  eventually issued death threats against her and against the man who would eventually become the victim he threw her into his truck they drove across now these these incidents took place in indiana to begin with in hammond indiana they drove right across the border into that area of the south far southwest side of chicago known as head wish there they went to a trailer park to the to the residence of the victim the defendant jumped out of the car pounded on the trailer door of the victim residence like them wasn't home the defendant got back in the car drove back to indiana continuing to issue threats against the victim and against the the wife and eventually he took her home and continued to beat her over the next several weeks he continued to beat her and threaten her eventually she was able to she was locked in the home the home was like a fortress it was barred with  steel doors and barricades security cameras things like that she would leave her tied up with no way to get out of mentions she did get out she called the police the police came she filed a complaint  a domestic violence warrant was issued for the defendant in the state of indiana eventually of course defendant is arrested on that domestic violence warrant and on federal charges gun  charges the defendant was tried for those federal charges and convicted in the mean time that bloody fingerprint that he left at this scene of the of the crime the then that and there was nothing wrong with the trailer in the windows won't burn broken out she went back later that evening the windows were broken out and there is a piece of glass on a shed outside the trailer back window and that's where the defendant's blood was found  at trial the trial court allowed the state to introduce the statements made by the defendant threatening his wife and the eventual victim under the under the notion that this was motive evidence that the motive of the crime was  jealous husband killing the person that he suspected of having an affair with his wife on appeal the appellate court found that that admission of evidence violated the marital privilege act when we look at this act we have to recall first of all the common law history of where all this came from sufficiently let me ask you yes or let's just say we completely agree with you there should be a bad or abusive marriage secondly how do we get around you in her case as in sanders which says the expansion of existing testimonial privileges and acceptance of new ones involves the balancing of public policy which should be sure i've got several things along those lines first of all i've never asked for a bad marriage exception i've never argued for a bad marriage is exception i know that that term is used by the dissent in the  court but i never asked for a bad marriage exception and i don't really believe you need to go that far i believe that you can take the statute as it is written and interpret it to get to rule of statutory instruction that's important it also well maybe the dissenter called it a bad merge reception because the language says except in cases of crimes against each other spousal venom and child well for certain offenses involving children i mean you did minute this doesn't fit within those exceptions though i think it does i think it does because in this case this defendant was charged with a crime against is what he was charged in indiana and the crime occurred in the ana impartial but he was charged with in the statute and one of things i was going to point out is the fact that you know yes construing the intent of legislation important but that intent is not only found in the words of the statute as you said in people x versus taqueria really reviewing court may also consider the underlying purpose of the statutes and that meant the evil sought to be remedied and the consequences of considering the statute in one matter versus another in people versus lewis that is always resume the legislation did not intend to cause absurd inconvenient or unjust results in  must be construed in the most beneficial way which their language will permit so as to prevent hardship or injustice and to oppose prejudiced public interests you know this court has already construed this statute in a way that it was the argument advanced by defendant that there's that but the statute covered all conversations between spouses holding instead that the statutory privilege like the similar common law privilege applied only to conversations that were confidential character it's become black letter law that this statute only applies to confidential communications but nowhere in the statute does the term confidential communications appear this stuart court recognized that that was what the legislature was getting at and again we have to go back to the common law at common law traditionally spouses could not testify against each other at all or in favor of each other they were considered to have an interest and they couldn't testify frankly this issue comes most often most upham when husbands beat their wives and things like that at the common law the women were viewed more or less as chattel they had no rights they had no rights and marriages and this  one of the problems the courts began to recognize and i have a long quote in the brief and with more to talk about the history the common law and the fact of course recognise that this would shut a woman's mouth to any misdeed of the husband during marriage and it wasn't a one way street it could go both ways but traditionally and in fact in almost every case it's the wife who is the subject of these things and the way statements that are supposed to yes when you talk about communication no it is not a communication kind of conduct can be a communication if i waver i nod my head that can be communication but it has to be intended primarily as communication this was a beating and i think oh to be a sort of a perversion to translate every beating into a place in the truck on the way to on the way to the to the victim's house so we don't believe that yes conduct can be communication but this kind of conduct has never been to construed as communication on specifically his death threat but i'm going to kill you i'm going to kill him i'm going to cut off blah blah blah at this statement that was made at the trailer a month before the murder it's unclear whether he's in the trailer in the car on the way there but he continues to make threats we don't the only specific language that laura says is he threatened to kill me he threatened to kill him and we're not sure where that took place so in other words if we were concerned about confidentiality it's not really clear from the record with those students and i don't believe so i some the statements probably took place in the in the trailer some of them took place and because she is allowed to testify generally that he continued to threaten and continue to accuse me of having an affair with the victim and i continued to deny it so in any event as i said this court starting with palumbo read into the statute something that isn't in the statute and it did so because it recognized the evolution of the way we treat women in our society the way we treat marriage in our society and i've seen such cited cases from numerous other jurisdictions to illustrate the way we've done that in the the trammel case that i cite from the u s supreme court is interesting because there are some very strong language about privileges in general granted that into trammell case you're dealing with a common law privilege and the supreme court of course had the authority to to get rid of this common law provision in the federal courts but they focus on the fact that whenever you have a privilege you're taking away legitimate viable important evidence which takes away from the truth seeking function of our system and there's a cost to doing that and there's a heavy cost to doing that which is why that court and this court of always suggest is that you construe privileges narrowly and exceptions to privileges broadly which is exactly what we're asking that you do in this case the exception that we're looking at is the in cases where there is a crime committed against the spouse against the person or pro and certainly this case as i indicated this defendant was charged in indiana you know another example of the types of things that get read into the statute or assumed that are in the statute and another thing that's important here is the status of the wife as either in cases where one is charged and again i've indicating that we're not talking about the case at hand that the words except in cases doesn't mean anything it can but it doesn't have to  not necessarily no it's not it doesn't say in this case it just says in cases and i'm saying that this court has read this statute in general broadly and it can do so again here in foster you point  out that part of this was to prevent to deter the breakdown of marital harmony when you force an unwilling spouse and that that has comes forth in a lot of these cases the term unwilling spouse you know the purposes of this law and everybody recognizes what the purpose is war it's to promote and preserve marital harmony and to promote confidentiality and between the spouses neither of those purposes is effectuated by holding the privilege in this case competence gelati is is is ridiculous when you think about it because this woman could and did tell everyone she could about the beating and the threats i mean she told the police she told she she could tell the hospital she would tell her friends she could tell everyone in the world except for the twelve people on the jury so there's no confidentiality issue this isn't a woman who's being forced to testify by the state she's more than willing to oh absolutely it's a way we shouldn't be do we need to look at the chart w complaint in the domestic violence case is a term in which statements will be able to come in which will not i don't think so first of all we we don't have that all we have is that she was he was charged in hammond and he was arrested on that war and after that we don't know what happened in the record he was not eventually tried on that basically because he was already serving a long federal sentence and then this sentence and then in the end it didn't want it back but i don't think you have to go that far because if you look at the word charged with which is it which is analogous to the word accused of i don't think you need the exact words now that when i say there were no other statements   it's admissible under under the guise of motives in this case is it not proof just no because it all took place in the context of domestic abuse that changing the reason why the same here or yeah i mean he's committing a crime against her and during the time he's committing the crime against her he's also making statements when you look at the the purpose again of the rule of the law it's to promote marital harmony and the exception is for cases where there's a crime being committed against the woman and generally yes the exception applies in the specific case i agree but there's no reason it can't because the because the purpose of the law is to protect women the recognition that the common law was not protecting women one of the reasons we have this new domestic violence statute on the books is because we recognize the common law did not protect women in these instances so in a case where he's committing a crime against her then no there should be no privilege so read broadly that language and in that if there was a case that involved the mastic abuse at some point in time why she chose to be yes because if you look at this is a continuum this is what all states and all legislatures have been doing they've been recognizing that there has been a problem with this privilege and that it left women in a in a helpless state and in order to get past that to move on into the twentieth and twenty first century that this privilege no longer made sense in the u s supreme court and then the wigmore of and the week mark article was in the  recognizing that this is this privilege makes no sense it's you know the u s supreme court and wigmore both said this this makes no sense in this day and age if there is a mary sue preserve if that's income in these cases that there's an unwilling spouse sure that and their marriage is still intact sure of this marriage was a shambles this marriage she divorced him while you know the case was pending she moved out she went to a you know a hospital and then she she hid out from him she filed charges against him there is no marital harmony to preserve here so the purpose of the statute which are to promote marital harmony and to promote confidentiality can't be effectuated by allowing the marital privilege in this case those are great arguments mr fisher and i agree facts i see the glimmer are you i know you see your problem i mean if if we can't get there with respect to this language and it affects our stance at the reconstruction analysis as it affects every stairs it because there are going to be times you're going to be on the other side of this there's concern here you can read into this it also says we were focusing on of crimes against each other it goes on to say we're certain offenses involving children so if if this particular husband had an offense against a child anywhere you know when he was sixteen years old it was an offense against a child it can be used in a future case no because in this case we have a crime against the wife  exactly the same time that he's uttering the words the death threats and if you look at them against each other can be any crime against each other as long as we're going to say as long as it's at the same construction of a statute does not end with the plain meaning of the statute there are in order to effectuate the actual real intent of the legislature which you have already done in palumbo in this case you've already gone beyond the words of this statute fact you've done it not only with palumbo but by but by writing in unwilling in some in some of your opinions this is another example of a case that you can do that thank you counsel  not know from the record whether laura ever filed a complaint whether she signed a complaint we do know that imette that a warrant for domestic battery was issued in indiana and that hammond indiana police tried to arrest mr trees react on that addition to marital harmony part of the concept of marital harmony includes the possibility and the hope of reconciliation such that even if a marriage looks irretrievably broken we cannot hope we must hold out hope that there is reconciliation to be had within that and also to your point the very purpose of privileges they are they are an interesting animal the very purpose of privileges is generally to exclude relevant evidence happens not just in the middle class which context it happens in attorney client privilege clergy penitent privilege doctor patient privilege all of those are designed because of a particular relationship to exclude relevant evidence and let's be clear the communications that are at issue in crime the crime against a spouse applying the privilege does not apply where there's a crime against the spouse we're not talking about a crime against a spouse here this case is not about laura this case is about whether just a cheesy act killed privilege my understanding is that the motion in limine eliminate was directed at particular statements that laura eventually related from mr tree ziac saying i think you're you know i think you guys are having an threats and i book my understanding is that we are focused on the threats to kill her the threat to kill done and to do certain violence to doncaster that i don't have and for i don't have the motion woman in front of me but i i believe it's quoted in there and certainly th also argue that certain conduct was privileged to how do you get there how if the statue talks about communications why which i am i can't because actions are also communications actions that are directed at an individual you know i can't find it at the moment i know there's a case in which counting out money because it was done in a directed fashion was held to be a communication that was privileged certain nods and certain actions taken towards individual we're not talking about simply what an individual observes another individual doing it is it is generally directed actions are directed conduct not should i answer all of your initial question entirely generally as far as as where the communications occurred it's not entirely clear from laura's testimony whether it all occurred at the home or whether all occurred in the in the truck on the way over or some combination thereof but it is clear that none of it took place out in public they were alone the communication was direct it was private and it was within their marriage that no one else saw the beating result there is no evidence of that and the results would be a different thing than the communication itself there's actually evidence entirely shows that that the communications here were confidential and less affirmatively shown otherwise competent charity is presumed here if it took place well they didn't take place in public though nothing took place outside of them being alone there's no evidence of the presence of a third party there's no president there's no evidence of suggests defending himself was relying upon the fear produced by such threats rhythm and upon any confidence relationship of the marriage to achieve these goals let me allow to do so what do we do with that is there a finding that he waved any confiden to laura they're directed only at laura they do not contain any language they do not contain any suggestion or direction that she should communicate them to anyone else it's not as if he said you tell that man that i'm going to kill you and i'm going to kill him none of that i an affirmative showing that the communications were not intended to be confidential  yes within the marital struct yes based on just based on the plain language of the statute you're neither may testify as to any communication or admission made by i have done to the other or has any conversation between them during marriage goes to motive but no i think it would still be utterly covered by the privilege and admissible bias to the extent that the state has suggested that this was all part of one bit one big course of conduct such that these you know that the violence to lori is somehow part and parcel of the murder of john kass of it i just wanted to stress that that this did occur two months earlier as a separate completely separate incident from  what occurred here finally the state has nine cannot demonstrate that the error here in introducing the privileged communications was harmless beyond a reasonable doubt the state itself acknowledged the and there's no other evidence even suggesting a motive here given there's no direct evidence even linking to the actual murder  yes mr cheesey acts blood was found on the shard of broken glass found not at all it's found outside the trailer we don't know exactly where that broken glass came from it's found on top of a shed it's not explicitly linked to anomaly in that the broken glass this piece with blood on it was improperly it was listed as with other broken glass and it was improperly bag with some other evidence that was found on the ground also outside nothing  he had a single small puncture wound to his wrist he didn't have injuries to his hands that would have been consistent with him beating someone up he did not confess to this crime when he was arrested for it several months later and there's simply insufficient  i know that was not the focus of the argument the focus of the argument was the judges the trial judge just final conclusion where she found that the marriage was in shambles and she basically carved out this exception for when there's a marriage that appears to be in shambles then the privilege should not apply and this is really reading from the transcripts but that was really not the focus at any point before we got to this court in fact the focus in the trial court was very much that this in shambles exception that the judge decided to carve out in order to admit this evidence that was as i said undoubtedly determinative evidence for the jury there are no other questions on the appellate court correctly concluded that the communications at issue here simply do not fall into any exception within the mental privilege statute and this court should do the same thank you  to justice thomas question regarding the findings of the judge at we did argue in the appellate court and we have argued in this case in our brief that the defendant did not mean these company these communications to be confidential because he meant them to be relayed to the victim a threat to be relayed to the victim we've argued that before with regard to justice tice's question about the motion eliminate the motion eliminate was directed to statements there was a motion in limine a directed to kind of but that was  global motion in limine they were relating to prove other crimes and their views in general and the conduct aspect leads me to the to the question of harmless error should we have to get there  and that is that let's assume for the purposes of argument that the statements are excised from the record you would still have the evidence that  received a phone call from the victim the defendant then began to beat her and say things to her and he began to beat or he tied her up he drove across the state line to illinois he pounded on the door of the victim he continued to beat her he drove her back the jury is going to know that there is a motive here they're going to understand the motive so the motive would still come in that in addition to all the other evidence and there was a lot of other evidence who discussed some of it the the d n a defendant was the major contributor there was a minor contributor the major contributor means that it was mostly his d n a on that in the where there was some other persons unidentified persons but his blood is located on a piece of glass that wasn't broken out before the before the incident there's the washing there's two different people who see  with cuts now he isn't actually arrested for a little while later until he barricades themself when that when the a t f come and everything else so they don't he doesn't have any more fresh injuries but it but he did have injuries that day he tells inconsistent stories and demonstrably wrong stories about those injuries he also asked two different people did you hear about any murders down in a trailer park and had wish or you know on the south side of chicago well there hadn't been any murders for a year in a trailer park in the police at the time he made those statements didn't yet know there had been a murder so there are lots of you know there's there's there's the hiding of the gun there's the description of the gun there's the finding of the gun in the same place that the prescription bottle is found so there is a lot of other evidence that would indicate that this the that the statements in this case were were if introduced improperly were introduced harmlessly this is if we agree with you   and that would be our request the day that your honors for the for the reasons that we've stated today and in the briefs that your honour's reversed this case send it back to the appellate court for resolution of those six remaining issues thank you