Illinois Official Reports

Supreme Court

People v. Trzeciak, 2013 IL 114491

Caption in Supreme

Court:

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

JOSEPH TRZECIAK, Appellee.

Docket No. 114491

Opinion filed

Rehearing denied

November 15, 2013

February 21, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Statements made by a husband to his wife while he was physically 

abusing her were not confidential, and the marital privilege did not bar 

their admission at his trial for the murder of another person.

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that 

court on appeal from the Circuit Court of Cook County, the Hon. 

Angela Munari Petrone, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, 

State’s Attorney, of Chicago (Alan J. Spellberg and Peter D. Fischer, 

Assistant State’s Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, 

Deputy Defender, and Jennifer L. Bontrager, Assistant Appellate 

Defender, of the Office of the State Appellate Defender, of Chicago, 

for appellee.
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Justices JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, and Kilbride 

concurred in the judgment and opinion.

Justice Theis specially concurred, with opinion, joined by Justice 

Karmeier.

Justice Theis dissented upon denial of rehearing, with opinion, joined 

by Justices Kilbride and Karmeier.

OPINION

¶ 1 Defendant, Joseph Trzeciak, was convicted of the murder of Donald Kasavich. The 

appellate court, with one justice dissenting, reversed defendant’s conviction, holding that a 

threat made by defendant to his wife, Laura Nilsen, that he would kill her and Kasavich, was 

inadmissable under Illinois’ marital privilege, section 115-16 of the Code of Criminal 

Procedure of 1963 (725 ILCS 5/115-16 (West 2010)), and that defendant was prejudiced by the 

statement’s introduction at trial. 2012 IL App (1st) 100259. For the reasons set forth below, we 

find that the threat was not barred by the marital privilege and, therefore, reverse the judgment 

of the appellate court.

¶ 2 BACKGROUND

¶ 3 On June 29, 2004, the victim, Donald Kasavich, was found dead in his trailer in the 

Hegewisch area of Chicago. Kasavich suffered three gunshot wounds to the head. His trailer 

was in disarray and a window had been broken. Defendant, a resident of Hammond, Indiana, 

was subsequently charged with Kasavich’s murder.

¶ 4 Prior to trial, defendant filed several motions to exclude various pieces of evidence and 

testimony, including a motion to exclude evidence of his prior acts of domestic violence 

against his wife, Laura Nilsen, and a motion to exclude confidential communications made to 

her. With respect to the former motion, defendant sought to exclude his general pattern of 

violence and abuse toward Nilsen; evidence that in April of 2004, defendant beat her and then 

drove her to Kasavich’s trailer; and evidence that he was jealous Nilsen was going to run off 

with Kasavich and, therefore, beat her. With respect to the latter motion, defendant sought to 

exclude a statement made by him to Nilsen in April of 2004, in which he threatened to kill both 

her and Kasavich.

¶ 5 The circuit court of Cook County denied in part and allowed in part defendant’s motion to 

exclude evidence of defendant’s violence against Nilsen. The court ruled that some evidence 

of domestic violence was relevant to defendant’s motive for killing Kasavich and also relevant 

to intent. The trial court, however, limited the evidence that was admissible, finding that the 

admission of all of the evidence would be more prejudicial than probative.
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¶ 6 The trial court denied defendant’s motion to exclude certain testimony from Nilsen based 

on the marital privilege. The trial court framed the issue as:

“whether or not [the] marital privilege prohibits the testimony of defendant’s wife 

against defendant in defendant’s trial for a murder committed against a third party, 

Donald Kasavich, as to defendant’s actions toward his wife, and as to defendant’s 

contemporaneous threats to kill his wife and Kasavich when defendant was not charged 

with committing an offense against his wife.”

After discussing several Illinois cases as well as cases from other jurisdictions, and noting the 

purpose underlying the marital privilege, the circuit court concluded that our legislature could 

not have intended to protect the type of spousal abuse alleged in this case or the 

communications made during such abuse as privileged. The court further found that 

defendant’s conduct in April 2004 and his threat was admissible to show defendant’s motive to 

kill Kasavich because Nilsen allegedly turned to Kasavich for help in escaping from defendant. 

The court also found that defendant did not intend the threat to be confidential in that he 

expected Nilsen to convey it to Kasavich to convince Kasavich to stay away from Nilsen and to 

dissuade him from helping her escape from defendant. The court reasoned that defendant 

relied upon the fear produced by such threats rather than upon any confidential relationship of 

the marriage. Accordingly, Nilsen was permitted to testify regarding what she told a detective 

on July 20, 2004, specifically:

“In April 2004, defendant threatened to kill Nilsen. Defendant tied her up, beat her, 

threw her in his pickup truck, had a gun, drove her to Donald Kasavich’s trailer, 

pointed at the trailer and said he’d kill Kasavich and her, and then cut off Kasavich’s 

dick and stick it in her mouth. She and defendant were both outside the trailer for a few 

minutes, then defendant drove her back to their home. Defendant continued to beat her 

to get her to confess.”

¶ 7 At trial, Kellee O’Nions testified that she discovered Kasavich’s dead body on June 29, 

2004. O’Nions stated she had lived with Kasavich from time to time for several years. O’Nions 

admitted she had been a crack cocaine addict for more than 20 years but stated she no longer 

used it. O’Nions also stated that she and Kasavich had taken drugs together and she was aware 

Kasavich often purchased crack from defendant.

¶ 8 O’Nions testified that she accompanied Kasavich on June 25, 2004, to Richard Roethler’s 

home in Hammond. O’Nions had known Roethler for approximately 20 years and introduced 

Kasavich to him because Kasavich was looking for a car to buy and Roethler had a car to sell. 

Kasavich agreed to buy a red car from Roethler in exchange for a combination of money and 

cocaine.

¶ 9 On June 26, O’Nions left with Kasavich to go to Pennsylvania to visit some of Kasavich’s 

family. They drove Kasavich’s van and left the red car parked at his trailer. When they returned 

on June 28, the red car was gone. The next morning O’Nions and Kasavich went to Roethler’s 

house, where they learned Roethler had taken the car back. O’Nions overheard Kasavich and 

Roethler arguing about the car and the cocaine. Kasavich left, but O’Nions remained to talk to 

Roethler about giving the car back to Kasavich. After Roethler refused, O’Nions returned to 

Kasavich’s trailer. O’Nions and Kasavich argued and he asked her to leave, which she did. At 
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the time she left, Kasavich had no injuries, the trailer was intact, and the window was not 

broken.

¶ 10 Roethler was later interviewed by Chicago police Detective Kevin Eberle, who concluded 

Roethler was not a suspect in Kasavich’s homicide. In addition, Roethler was excluded as a 

suspect based on physical evidence taken from the victim and the crime scene.

¶ 11 Patricia Madigan testified she met defendant through a mutual friend, Danny Barnas.1 She 

bought crack cocaine from defendant, which she had used on a daily basis in 2004. However, 

in 2009, when the trial took place, she testified she had been clean for three or four years. 

Madigan did not know Kasavich.

¶ 12 Madigan testified that, on June 29, 2004, she called defendant to purchase crack from him. 

They made arrangements to meet at the intersection of 129th Street and Commercial Avenue in 

Chicago, between 1:30 and 2 p.m. that day. Defendant failed to show up. Madigan again called 

defendant and when she finally reached him, he agreed to meet her at 4 p.m. at the same 

intersection. Madigan drove Michael Lesko’s car to the designated location. When she saw 

defendant, his arm was bandaged and bloody and his clothes had blood on them. Defendant 

told Madigan he had been involved in a police chase with the Hammond police department and 

cut himself on glass from his truck.2 Defendant then asked Madigan if she had heard anything 

about a murder at a trailer court. She responded she had not.

¶ 13 Madigan drove defendant to another drug delivery, then defendant took over driving 

Lesko’s car, and they picked up his daughter. After his daughter got into the car, defendant 

asked her if she had heard anything about a murder in a trailer court. When she responded she 

had not, defendant told her to “mind her own fuckin’ business.” The trio then went to Burger 

King and back to defendant’s house to eat.

¶ 14 When they got back to defendant’s house, he packed an overnight bag and he and Madigan 

went to Lesko’s house. At Lesko’s house, defendant asked Madigan to wash his clothes and 

give him a haircut, which she did. Defendant also bathed, after which Madigan rebandaged his 

arm. While waiting for defendant’s clothes to dry, Madigan, defendant and Lesko used drugs.

¶ 15 Thereafter, Madigan and defendant returned to his house in Lesko’s car. Defendant exited 

the car, walked down an alley and went over a fence into his yard. When he returned 

approximately 5 to 10 minutes later, he threw items wrapped in a blanket over the fence. 

According to Madigan, the items appeared to be rifles or guns. Defendant put the guns in the 

trunk. Defendant then drove down 130th Street with a pistol on his lap, throwing bullets out the 

window. Subsequently, defendant drove to a landfill by the Calumet River. Defendant gave 

Madigan crack cocaine to smoke and told her not to watch what he was doing. Defendant 

exited the car and Madigan heard a splash. When defendant returned, he did not have the gun 

that was previously on his lap.

 1

Barnas was deceased at the time of defendant’s trial.

2

Testimony was offered at trial from a Chicago police detective that there was no external damage 

to defendant’s truck or any broken glass.
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¶ 16 The two went to the house of their mutual friend, Barnas. Once they arrived at Barnas’ 

house, Madigan smoked crack in the basement while defendant and Barnas spoke privately. 

She overheard defendant ask Barnas’ permission to leave some things at his house. Defendant 

then brought the blanket from the trunk into Barnas’ house. After smoking more crack in 

Barnas’ basement, Madigan and defendant returned to Lesko’s home. The two stayed the night 

and in the morning, defendant left with Lesko’s car. Madigan called her mother to pick her up 

and she then learned about Kasavich’s murder.

¶ 17 The next time Madigan saw defendant was at Barnas’ house sometime in July. She heard 

defendant asked Barnas if he could remove the rifles he had left there. At this time, the rifles 

were in a golf bag. On July 28, Madigan spoke with a Chicago police detective and recounted 

these events in a handwritten statement. She also testified before a grand jury.

¶ 18 Michael Lesko testified that he too used crack cocaine in 2004 and knew both defendant 

and Madigan. In 2004, he owned a white Oldsmobile and would lend it to people, including 

Madigan and defendant. According to Lesko, between 6 and 8 p.m. on June 29, he was sitting 

in his kitchen when Madigan and defendant walked in unannounced. Defendant’s arm was 

bandaged with some type of cloth and there was blood on his clothes. Defendant told Lesko he 

had a couple too many beers, fell down, and injured his arm. Defendant asked if he could use 

Lesko’s bathroom to clean up, which Lesko found unusual since defendant had never made 

such a request before. While defendant took a bath, Madigan washed his clothes. When 

defendant was finished with his bath, Madigan rebandaged defendant’s arm and then cut his 

hair, which was also unusual to Lesko. The three talked for a bit and then Lesko went to bed. 

The next day defendant left in Lesko’s car.

¶ 19 Lesko testified that when he got his car back a day or two later, it was very clean. Lesko 

testified that in July, the police showed up at his house and asked for consent to search his 

vehicle. He gave the police consent and they took his car.

¶ 20 Laura Nilsen testified she was the estranged wife of defendant. The trial was the first time 

she had seen defendant since June 24, 2004. Nilsen stated she knew Kasavich and used to live 

with him, but she denied having a sexual or romantic relationship with him. Nilsen admitted 

that in 2003 to 2004, she smoked crack daily. When she lived with Kasavich, they would take 

drugs together, which they often purchased from defendant.

¶ 21 Nilsen testified that she and defendant began dating in November 2003 and were married 

in January 2004. After she moved in with defendant in Hammond, he immediately became 

very abusive toward her, beating her daily. Nilsen testified that defendant beat her with his 

fists, kicked her while wearing work boots, hit her with a gun, tied her up using duct tape or 

rope, and locked her in the bathroom and closet.

¶ 22 Nilsen described defendant’s house as having multiple deadbolt locks on the doors, with 

keys required to open them from both sides. A two-by-four board was also propped against the 

front door to block it. There were security cameras at both the front and rear of the house, as 

well as a tall privacy fence surrounding the yard. The windows were tinted and the curtains 

were usually closed.
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¶ 23 Nilsen testified that one night in April 2004, defendant became irate and violent because 

she received a phone call, as he always did. They fought, and while beating her, defendant 

accused her of planning to leave with Kasavich. She denied these accusations, but defendant 

tied her up and put her in his truck. Once in the truck, he drove to Kasavich’s trailer, which was 

approximately five minutes from defendant’s home, while continuing to beat her and accusing 

her of planning to leave him. Nilsen testified that defendant had a gun with him and when they 

arrived at Kasavich’s trailer, defendant told her “he was going to cut [Kasavich’s] dick off and 

put it in [her] mouth and then kill [them] both.” Defendant exited the truck and knocked on 

Kasavich’s door, but his knocks went unanswered. Defendant then returned to the truck and 

drove home.

¶ 24 After this incident, defendant repeatedly accused Nilsen of planning to leave with 

Kasavich and of cheating and having affairs with others. He regularly tried to beat a confession 

out of her, often putting his gun in her mouth while threatening her.

¶ 25 Nilsen further testified that on the evening of June 24, 2004, she received a telephone call 

from her sister and defendant began to beat her while she was on the phone. She hung up as 

quickly as possible. Eventually defendant stopped beating her and left the house.

¶ 26 In the early hours of June 25, the Hammond police arrived at the house. Because the pit 

bulls were barking, the police yelled at her to put them away. As she was doing so, she noticed 

defendant had left the house keys. She let herself out and went with the police to the Hammond 

police station, where she was interviewed and photographed. The photographs showed bruises, 

both new and old, on her face, arms, legs, and back. After being interviewed and photographed, 

she was taken to a hospital. Thereafter, she went to her mother’s house for a day and then went 

into hiding from defendant. Nilsen testified that she did not talk to Kasavich after this day and 

eventually learned he had been murdered. After the incident on June 24, a warrant was issued 

for defendant’s arrest on charges of domestic battery.

¶ 27 Other evidence was presented at trial. Specifically, a piece of glass with blood on it was 

recovered from a shed outside of Kasavich’s trailer. Forensic testing showed the blood was 

defendant’s. Following defendant’s arrest, a consensual search was made at Barnas’ home. 

Officers recovered a .40-caliber Glock Model 27 handgun, a rifle, and prescription bottles 

bearing Kasavich’s name.

¶ 28 The handgun was tested by the Illinois State Police Crime Lab and was identified as the 

weapon used to kill Kasavich. Three fired cartridges and one live cartridge from a .40-caliber 

gun were recovered inside Kasavich’s trailer. Also, the medical examiner testified that one 

.40-caliber bullet was recovered from Kasavich’s brain. All of these items were confirmed to 

have come from the recovered handgun.3

 3

After the handgun was tested, it was returned to the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF). In September 2008, unbeknownst to the Chicago police department, the ATF 

destroyed the gun as a matter of routine since a federal firearms case against defendant was complete. 

Two photographs of the handgun had been taken before its destruction and were used at trial.
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¶ 29 At trial, Nilsen was shown a photograph of the handgun. She testified the gun in the photo 

was the gun defendant used to threaten her and beat her. She did not know the make or model, 

but knew it was the gun defendant kept with him “all the time.”

¶ 30 Detective Eberle of the Chicago police department testified that the police began looking

for defendant in connection with Kasavich’s murder on July 3 after they received an 

anonymous tip.

¶ 31 Hammond police officer Matthew Porter testified that on July 22 he was aware there was a 

warrant for defendant’s arrest and was surveilling defendant. At approximately 12:30 a.m., 

Porter observed defendant pull out of his driveway with his lights off, pull into a gas station 

across the street, and get out. Porter drove up behind defendant. As Porter called in his 

location, defendant jumped back into his vehicle and sped away. Porter activated his lights and 

siren but defendant did not stop. After driving through several alleys and streets, defendant 

drove through a fence, across a Little League field, and then through a second fence. Defendant 

then drove through Hammond into Chicago, with Porter in pursuit. Approximately three miles 

into Chicago, Porter was ordered by his superiors to return to Hammond and end his pursuit of 

defendant.

¶ 32 On July 26, Porter was still searching for defendant. At approximately 1:30 a.m., as he was 

driving down an alley parallel to defendant’s driveway, he observed a van pull out of 

defendant’s driveway and then pull back in. The driver was a female and defendant was in the 

passenger’s seat. Porter pulled behind the van, activated his lights, and called for backup. 

Porter then exited his vehicle, remaining next to it with his firearm drawn, and ordered the 

occupants to stay in the vehicle.

¶ 33 Defendant opened the passenger door and began yelling, “What’s the problem?” Porter 

again told defendant to remain in the vehicle. However, defendant jumped out and ran toward 

the front of the van. Defendant then leaned over the front hood of the van and pointed a silver 

pistol in Porter’s direction. Defendant continued to move around, keeping the female driver 

between himself and Porter. Porter ordered defendant several times to get to the ground and 

drop his gun. Instead, defendant began running down the alley beside his garage toward his 

house.

¶ 34 Several officers arrived and set up a perimeter around defendant’s house. SWAT officers 

also arrived. At this point, there were approximately 30 police personnel present on the scene, 

including Hammond police officers, special agents from the ATF, and ATF task force agents, 

as well as other state and local authorities and negotiators. Even after teargas was shot into 

every window of defendant’s house, he refused to come out. The officers then made the 

decision to go in and the rear door was rammed down.

¶ 35 Lieutenant Ralph Bogie of the Hammond police department entered the house first. Bogie 

testified that when he entered, immediately in front of him was a staircase to the basement. His 

flashlight illuminated a person pointing a silver gun at him at the foot of the stairs. Bogie yelled 

to the person between six to eight times to drop the gun. Finally, Bogie heard a metal object hit 

the floor. Defendant was subsequently arrested.
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¶ 36 Based on all of the above evidence, the jury found defendant guilty of first degree murder. 

Defendant was sentenced to 50 years’ imprisonment for the murder conviction and 40 years’ 

imprisonment for the firearm enhancement, to run consecutively. These sentences also were to 

run consecutively to a 10-year federal firearm sentence defendant was already serving.

¶ 37 Defendant appealed, raising seven challenges. The appellate court addressed only the first 

issue, whether Nilsen’s testimony should have been excluded under the marital privilege. The 

appellate court found that none of the exceptions in section 115-16 were applicable. 2012 IL 

App (1st) 100259, ¶ 26. Therefore, the appellate court concluded the communications between 

Nilsen and defendant were protected by the marital privilege because they were made during 

their marriage and were made privately. Thus, the trial court should have applied the privilege 

and excluded the evidence of abuse and defendant’s threats against Nilsen and the victim. 2012 

IL App (1st) 100259, ¶¶ 28-29. The appellate court further held that the record clearly showed 

Nilsen’s testimony contributed to defendant being found guilty and therefore reversed and 

remanded for a new trial. Justice Murphy dissented, reasoning that defendant did not intend for 

his conduct and threat to remain confidential.

¶ 38 We granted the State’s petition for leave to appeal.

¶ 39 ANALYSIS

¶ 40 This case requires us to determine the scope of Illinois’ marital privilege, which is found in 

section 115-16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-16 (West 2010)). 

The primary objective of statutory construction is to ascertain and give effect to the 

legislature’s intent. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, 

¶ 23. The best indicator of the legislature’s intent is the language of the statute itself, given its 

plain and ordinary meaning. Id. It is axiomatic that when construing a statute, we “cannot 

allow formality to trump substance where the result would be contrary to the purposes for 

which the statute was enacted and lead to consequences which the legislature could not have 

intended.” Township of Jubilee v. State of Illinois, 2011 IL 111447, ¶ 35. A cardinal rule of 

statutory construction is that a court can consider the reason for the law, the problems sought to 

be remedied, the purposes to be achieved, and the consequences of construing the statute one 

way or another. People v. Gutman, 2011 IL 110338, ¶ 12; People v. Garcia, 241 Ill. 2d 416, 

421 (2011). In interpreting a statute, we presume the legislature did not intend absurdity, 

inconvenience, or injustice. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 

111286, ¶ 23.

¶ 41 In Illinois, one spouse may testify for or against the other spouse in criminal cases. 

However, section 115-16 of the Code provides that neither “may testify as to any 

communication or admission made by either of them to the other or as to any conversation 

between them during marriage, except in cases in which either is charged with an offense 

against the person or property of the other.” 725 ILCS 5/115-16 (West 2010). The purpose of 

this privilege, derived from common law, is to promote marital harmony and stability. People 

v. Foskey, 136 Ill. 2d 66, 94 (1990). See also Jaffee v. Redmond, 518 U.S. 1, 11 (1996); 

Trammel v. United States, 445 U.S. 40, 53 (1980). It is intended to further marital harmony, 

mutual understanding and trust by encouraging full disclosure, free communication, and 
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confidential communications between spouses. People v. Simpson, 39 Ill. App. 3d 661, 669 

(1976), rev’d on other grounds, 68 Ill. 2d 276 (1977). See also 81 Am. Jur. 2d Witnesses § 284, 

at 307 (2004) (“The purpose of this doctrine is to promote and encourage the utmost 

confidence between spouses and, thus, aid in the preservation of the marriage status.”); 

McCormick on Evidence § 86, at 340 (John W. Strong ed., 5th ed. 1999) (“The argument 

traditionally advanced in support of the marital communications privilege is that the privilege 

is needed to encourage marital confidences, which confidences in turn promote harmony 

between husband and wife.”); 8 John Henry Wigmore, Evidence § 2332, at 642 (McNaughton 

rev. ed. 1961) (“[t]he policy which should lie at the foundation of every rule of privileged 

communications *** appears to be satisfied” in the case of spousal communications: i.e., the 

communications originate in confidence, the confidence is essential to the relation, the relation 

is a proper subject of encouragement by the law, and the injury that would inure to the relation 

by disclosure probably exceeds the benefit that would result from ignoring the privilege in the 

“judicial investigation of truth”).

¶ 42 We have rejected the argument that section 115-16 applies to “any” conversation or 

communication and, instead, have held that the statutory privilege, like the similar common 

law privilege, applies only to communications which are intended to be confidential. People v. 

Palumbo, 5 Ill. 2d 409, 415 (1955). See also Foskey, 136 Ill. 2d at 89; People v. Sanders, 99 Ill. 

2d 262, 267 (1983). There is a presumption that communications between spouses, privately 

made, are intended to be confidential. However, where it appears from the nature or 

circumstances under which the communication was made that confidentiality was not 

intended, the communication is not privileged. Palumbo, 5 Ill. 2d at 414. See also Wolfle v. 

United States, 291 U.S. 7, 14 (1934); Sanders, 99 Ill. 2d at 267.

¶ 43 Moreover, not all acts are regarded as communications. Implicit in the term 

“communication” found in section 115-16 is the idea of speech. People v. Derr, 316 Ill. App. 

3d 272, 278 (2000). See also People v. Krankel, 105 Ill. App. 3d 988, 991 (1982). Certain acts, 

however, may be deemed a communication, such as a nod of the head or wave of the hand. See 

People v. Murphy, 241 Ill. App. 3d 918, 924 (1992); Krankel, 105 Ill. App. 3d at 991. In order 

to fall within the privilege, the nonverbal conduct must clearly be intended as a substitute for, 

or in lieu of, an oral communication, i.e., it was intended to convey a message. Simpson, 39 Ill. 

App. 3d at 670. See Derr, 316 Ill. App. 3d at 278. See also Paul F. Rothstein & Susan W. 

Crump, Federal Testimonial Privileges § 4:12 (2d ed. 2012) (“the communication should 

include at least a gesture that is communicative or is intended by one spouse to convey a 

message to the other”). The mere description by one spouse of general, noncommunicative 

conduct is not protected by the marital privilege. Derr, 316 Ill. App. 3d at 278; Krankel, 105 

Ill. App. 3d at 991; Simpson, 39 Ill. App. 3d at 670.

¶ 44 Thus, two elements must be met before a communication between spouses falls within the 

privilege. First, the communication must be an utterance or other expression intended to 

convey a message. Second, the message must be intended by the communicating spouse to be 

confidential in that it was conveyed in reliance on the confidence of the marital relationship.

¶ 45 The appellate court below, after quoting section 115-16, found that none of the exceptions 

in the statute were applicable. The appellate court stated, “[a]cts as well as statements are 
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regarded as communications for the purposes of marital privilege.” 2012 IL App (1st) 100259, 

¶ 24. The appellate court then concluded that the trial court should have “excluded the 

evidence of abuse” against Nilsen under the marital privilege. We disagree.

¶ 46 First, it should be noted that defendant’s motion to exclude confidential communications 

sought only to bar the statement he made in April 2004 where he threatened to kill his wife and 

Kasavich. Defendant also moved, in a separate motion, to exclude his general pattern of 

violence and abuse toward his wife, the events that occurred in April 2004, and evidence he 

was jealous that his wife was going to run off with Kasavich and therefore beat her. That 

second motion, however, was not based on the marital privilege and the appellate court did not 

address that motion, ruling only that the trial court erred in admitting evidence under the 

marital privilege.

¶ 47 Further, we find that the events that occurred in April 2004, including defendant’s conduct 

at that time, would not fall within the marital privilege. First, defendant’s acts were not 

nonverbal conduct intended to convey a message. Second, it is commonly recognized that “[a] 

spouse’s testimony as to physical acts of cruelty or abuse by the other spouse is admissible on 

the ground that no confidential communication is involved, or that the information was not 

gained as a result of the marital relation.” 81 Am. Jur. 2d Witnesses §§ 287, 313 (2004). See 

also 98 C.J.S. Witnesses § 305 (2002). See, e.g., United States v. Koehler, 790 F.2d 1256 (5th 

Cir. 1986); Rich v. Rich, 887 So. 2d 289 (Ala. Civ. App. 2004); Morgan v. United States, 363 

A.2d 999 (D.C. 1976); State v. Parent, 02-835 (La. App. 5 Cir. 12/30/02); 836 So. 2d 494; 

Lenkiewicz v. Kastner, 227 N.W. 689 (Mich. 1929); State v. Nettleton, 760 P.2d 733, 737 

(Mont. 1988); Yowell v. Vaughn, 85 Mo. App. 206 (1900); Millspaugh v. Potter, 71 N.Y.S. 134 

(N.Y. App. Div. 1901); State v. Greaves, 971 N.E.2d 987 (Ohio Ct. App. 2012); State v. 

Govan, 465 S.E.2d 574 (S.C. Ct. App. 1995); Adams v. State, 563 S.W.2d 804 (Tenn. Crim. 

App. 1978); Sterling v. State, 814 S.W.2d 261 (Tex. App. 1991); State v. Americk, 256 P.2d 

278 (Wash. 1953); State v. Richards, 391 S.E. 354 (W. Va. 1990).

¶ 48 We find the above authorities instructive and persuasive. Accordingly, we hold that 

testimony regarding defendant’s conduct in April 2004, i.e., beating her, tying her up, tossing 

her in his truck, and driving to Kasavich’s house, need not have been barred by the marital 

privilege.

¶ 49 We now consider whether defendant’s threat to kill Nilsen and Kasavich must be barred by 

that privilege. The appellate court concluded that defendant’s threat was a private 

communication between defendant and Nilsen, and that no exception to section 115-16 

applied. Thus, the appellate court held that the trial court should have barred defendant’s threat 

under the marital privilege. We disagree and conclude that defendant’s threat was not barred 

by the privilege because it was not a confidential communication.

¶ 50 No court in Illinois has yet defined what “confidential” encompasses. However, other 

jurisdictions have and not every conversation between husband and wife made in private is 

deemed confidential. The privilege “covers only those private exchanges which ‘would not 

have been made but for the absolute confidence in, and induced by, the marital relationship’ ” 

and “ ‘prompted by the affection, confidence and loyalty engendered by such relationship.’ ” 

People v. D’Amato, 430 N.Y.S.2d 521, 522-23 (N.Y. Sup. Ct. 1980). See also Nettleton, 760 
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P.2d at 738; 81 Am. Jur. 2d Witnesses § 297 (2004); Paul F. Rothstein & Susan W. Crump, 

Federal Testimonial Privileges § 4:12 (2d ed. 2012); George L. Blum, “Communications” 

Within Testimonial Privilege of Confidential Communications Between Husband and Wife as 

Including Knowledge Derived From Observation by One Spouse of Acts of Other Spouse, 23 

A.L.R.6th 1 (2007). As another court has stated, “ ‘[o]nly those communications passing from 

one marriage partner to the other because of the confidence resulting from their intimate 

marriage relationship receive such protection.’ ” Rubalcada v. State, 731 N.E.2d 1015, 1022 

(Ind. 2000) (quoting Rode v. State, 524 N.E.2d 797, 799 (Ind. Ct. App. 1988)). Conversely, 

“ ‘if what is said or done by either has no relation to their mutual trust and confidence as 

husband and wife, then the reason for secrecy ceases.’ [Citation.]” Rubalcada, 731 N.E.2d at 

1022 (defendant’s threats to kill wife and whatever she loved most if she disclosed facts about 

murder he committed not barred by spousal privilege because “[s]uch communications do not 

enhance the mutual trust and confidence of the marital relationship that the privilege is 

intended to protect”). See also Beyerline v. State, 45 N.E. 772 (Ind. 1897) (not every 

conversation between husband and wife, nor every word or act said or done protected under 

“seal of secrecy”; only those communications passed from one to another by virtue of the 

confidence resulting from their intimate relationship are protected; if what is said or done has 

no relation to mutual trust and confidence as husband and wife, then the reason for secrecy 

ceases); State v. Edwards, 260 P.3d 396 (Mont. 2011) (a spouse does not rely on the 

confidence of the marital relationship when the purpose of the communication is to “terrify and 

intimidate” the other spouse; wife’s testimony that defendant “pulled a shotgun and put it in 

[her] face and told [her] if [she] ever went to the cops, or ever told anyone, that he would kill 

[her], kill [her] family, and burn [her] grandmother’s house down” admissible in prosecution 

of defendant for murder because communication not made in reliance on confidences of 

marital relationship); State v. Applegate, 668 S.W.2d 624, 635 (Mo. Ct. App. 1984) (husband’s 

threats to do violence to former wife not confidential communications within marital privilege 

statute); People v. Mills, 804 N.E.2d 392, 396 (N.Y. 2003) (defendant’s admission to killing in 

past and threat to kill his wife admissible in trial for past murder because “[c]ommunications or 

threats made during the course of physical abuse are not entitled to be cloaked in the privilege 

because the maker of the statement is not ‘relying upon any confidential relationship to 

preserve the secrecy of his acts and words’ ”); People v. McCormack, 104 N.Y.S.2d 139, 141 

(N.Y. App. Div. 1951) (testimony that, while brandishing bayonet, husband threatened wife 

with “I am going to kill. I am going to kill everybody. I’m going to kill any *** person I see” 

admissible in prosecution for murder of man in street shortly thereafter where method and 

nature of communications strongly militated against view that it was confidential; testimony of 

spouse as to words uttered or acts committed while in course of a personal assault or injury by 

other not deemed within spousal privilege especially where defendant knew wife might reveal 

his utterances and actions if she had him arrested and prosecuted for his attack on her), aff’d, 

103 N.E.2d 895 (N.Y. 1952); Commonwealth v. Spetzer, 813 A.2d 707, 720 (Pa. 2002) 

(defendant’s statements to wife admitting he raped her minor daughter, details of plans to 

abduct the daughter and her sister and to rape them, and intimidation of wife and daughter to 

recant their accusations admissible against defendant in trial for rape of daughter because 
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communications were not confidential since not “sensitive, marital harmony-inspiring 

communications contemplated by” spousal privilege).

¶ 51 Whether a particular communication is privileged as having been made in reliance upon 

the marital confidence depends on the nature and form of the communication and the 

circumstances immediately surrounding its making. Such a determination is a preliminary 

question of fact to be decided by the trial court. D’Amato, 430 N.Y.S.2d at 522-23.

¶ 52 Here, defendant’s threat to kill Nilsen and Kasavich was certainly not made in reliance on 

the confidences of his marriage. It is evident that defendant intended Nilsen to reveal the threat 

to Kasavich. Also, it is the type of communication that Nilsen might have revealed to one of 

her family members, or even the police. See, e.g., Newell v. State, 49 So. 3d 66 (Miss. 2010) 

(defendant’s message left on wife’s cell phone in which he threatened to shoot her and her 

alleged lover not confidential for purpose of spousal privilege since wife would have 

communicated to lover or police). It is also evident, from the circumstances surrounding 

defendant’s threat, that it was not motivated by his reliance on the intimate, special trust, and 

affection of his marital relationship. The threat had no correlation to the mutual trust between 

defendant and Nilsen as husband and wife. Accordingly, we conclude that defendant’s threat 

made in April 2004 to kill Nilsen and Kasavich was not confidential and, therefore, was not 

protected by the marital privilege.

¶ 53 For the foregoing reasons, we reverse the judgment of the appellate court and remand this 

cause to that court so it may address the other issues raised by defendant which were not 

previously considered.

¶ 54 Reversed and remanded.

¶ 55 JUSTICE THEIS, specially concurring:

¶ 56 The sole issue before this court is whether the marital communication privilege, as codified 

in section 115-16 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-16 

(West 2010)), applies to an April 2004 communication between defendant and his wife, Laura 

Nilsen, in which defendant threatened to kill Nilsen and the victim, Donald Kasavich. I join the 

majority opinion in holding that this threat, made two months before the victim was found 

dead, was not barred by the marital communication privilege because I agree that it did not 

constitute confidential communication.

¶ 57 My primary disagreement with the majority opinion is its analysis of what constitutes 

confidential marital communication. I am troubled by the majority’s reliance upon case law 

from foreign jurisdictions to carve out a new exception to Illinois’ marital privilege which is 

not found in our own statutory language and requires our trial courts to consider the health or 

status of a marital relationship at the time a communication occurred in order to determine 

whether it entails a confidential communication.

¶ 58 As in all cases of statutory interpretation, this court’s primary objective should be to 

ascertain and give effect to the legislature’s intent, keeping in mind that the best and most 

reliable indicator of that intent is the statutory language itself, given its plain and ordinary 
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meaning. People v. Gutman, 2011 IL 110338, ¶ 12. In construing a statute in this way, we may 

not read into the statute exceptions, limitations, or conditions for which the legislature did not 

provide. People v. Dominguez, 2012 IL 111336, ¶ 16. Generally, a trial court’s ruling on 

evidentiary matters will not be reversed absent a clear abuse of discretion. People v. Hall, 195 

Ill. 2d 1, 20 (2000). Where, as in this case, the question concerns purely statutory 

interpretation, a question of law, we apply de novo review. Id. at 21.

¶ 59 Illinois’ marital communication privilege, contained in section 115-16 of the Code, 

provides, in relevant part:

“Witness disqualification. ***

In criminal cases, husband and wife may testify for or against each other. Neither, 

however, may testify as to any communication or admission made by either of them to 

the other or as to any conversation between them during marriage, except in cases in 

which either is charged with an offense against the person or property of the other, in 

case of spouse abandonment, when the interests of their child or children or of any 

child or children in either spouse’s care, custody, or control are directly involved, when 

either is charged with or under investigation for [listing certain sex offenses] and the 

victim is a minor under 18 years of age in either spouse’s care, custody, or control at the 

time of the offense, or as to matters in which either has acted as agent of the other.” 725 

ILCS 5/115-16 (West 2010).

¶ 60 Consequently, under the plain language of the statute, the marital privilege in Illinois 

prohibits testimony as to any communication or admission by either spouse to the other or as to

any conversation between them during the marriage unless one of the five specified exceptions 

apply. None of the exceptions apply to the communication of the threat made by defendant to 

Nilsen.

¶ 61 This court has long held, however, that the statutory marital privilege applies only when 

the communication from one spouse to another was intended to be of a confidential nature. 

See, e.g., People v. Palumbo, 5 Ill. 2d 409, 415 (1955). While the majority recognizes this 

point, it holds that “[n]o court in Illinois has yet defined what ‘confidential’ encompasses.” 

Supra ¶ 50. I disagree. This court’s own precedent has instructed on what confidential marital 

communication entails and should control our outcome today.

¶ 62 Our decision in Palumbo is the starting point for our interpretation of the statute relating to 

the admissibility of interspousal communication as applying solely to confidential 

communication. In Palumbo, we recognized that there is no specific language in the statute 

that the marital communication must be confidential in order for the privilege to apply. 

Palumbo, 5 Ill. 2d at 415. We looked at the historical background of the statute and noted that 

under an earlier provision, the statute provided that a husband or wife may not testify to any 

admissions or conversations of the other, whether made by him to her or her to him, or by 

either to third persons. Id. After the statute was amended, the reference to third persons was 

omitted. Id. We interpreted the legislature’s intent in removing the statutory language 

referencing third persons as conforming to the common law privilege which had only covered 

confidential communication. Id. Following the examination of the statutory framework in 

Palumbo, we concluded that the conversation at issue was ineligible for protection under our 
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marital privilege because it was not confidential as it took place in the presence of a third 

person who, according to the wife, was trying to purchase narcotics from the defendant who 

was her husband. Id. at 411, 415.

¶ 63 Thereafter, in Sanders, relying upon the framework this court established in Palumbo, we 

held that while there is a presumption that interspousal communications are intended to be 

confidential if, under the circumstances in which the communication took place, it appears that 

confidentiality was not intended, the communication is not to be regarded as privileged. People 

v. Sanders, 99 Ill. 2d 262, 267 (1983). We reiterated that communications made in the presence 

of third persons are not regarded as privileged because they are not made in confidence. Id. We 

therefore found the conversation ineligible for protection under the statutory marital privilege 

because the presence of the couple’s 13-year-old son destroyed the confidential nature of the 

spousal communication during which the husband told his wife that he robbed the victim. Id. at 

266, 269.

¶ 64 In the instant case, Nilsen testified the threat that defendant would kill her and the victim 

was made at the victim’s trailer, and the only reason defendant did not communicate directly 

with him that night was that his repeated knocks on the victim’s trailer door went unanswered. 

As the majority holds, it is evident from the circumstances that defendant made the threat with 

the intention of a third party, the victim, being made aware of it, presumably to discourage any 

further contact between Nilsen and Kasavich. Supra ¶ 52. Consequently, wholly consistent 

with our holdings in Palumbo and Sanders, the communication is not privileged because based 

upon the circumstances in which the threat was made by defendant, confidentiality was 

obviously not intended. Nothing more needs to be said in answering the sole issue before us.

¶ 65 The majority’s error in holding that no court in Illinois has instructed on what confidential 

marital communication encompasses results in its analysis becoming unhinged from our 

statute and creating a new exception to our marital privilege. Relying exclusively on case law 

from outside this state, the majority today holds that “[t]he privilege ‘covers only those private 

exchanges which “would not have been made but for the absolute confidence in, and induced 

by, the marital relationship” ’ and ‘ “prompted by the affection, confidence and loyalty 

engendered by such relationship.” ’ ” Supra ¶ 50 (quoting People v. D’Amato, 430 N.Y.S.2d 

521, 522-23 (N.Y. Sup. Ct. 1980)).

¶ 66 I recognize the majority’s apparent desire in not wanting to extend the evidentiary privilege 

to marital relationships that at the time of a communication have seemingly broken down. 

Basing a holding on a desire for a particular outcome, however, would do considerable 

violence to our rules of statutory construction and decisionmaking principles. The majority 

opinion ignores the most basic tenet of statutory construction that we do not enlarge the 

meaning of a statute by reading into it language not contained therein. People v. Woodard, 175 

Ill. 2d 435, 443 (1997). Our legislature has provided five specific exceptions to the application 

of the marital privilege in Illinois. It is not the role of this court to add a sixth.

¶ 67 Today’s holding also leaves trial courts in Illinois in the untenable position of having to 

assess, without any real objective criteria from this court, the health and status of a marriage at 

the time a communication occurred, in order to determine, as the majority articulates, whether 

the communication was “motivated by [the spouse’s] reliance on the intimate, special trust, 
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and affection of [the] marital relationship.” Supra ¶ 52. To complicate matters further for our 

trial courts, the majority in discussing what constitutes confidential communication provides, 

without any synthesis, no fewer than seven different parentheticals from various states, one 

going back to the nineteenth century, as to the criteria considered by those courts when making 

the determination. See supra ¶ 50. Consequently, it is entirely unclear what standard our trial 

courts should now apply when making a judicial determination of marital harmony as required 

by today’s opinion.

¶ 68 My secondary disagreement with the majority opinion is its analysis of the admission of 

evidence regarding defendant’s conduct in April 2004, and whether it is subject to the marital 

privilege. The majority opinion again unnecessarily relies exclusively on authority from 

outside this state (see supra ¶¶ 47-48) when the question should be answered based upon the 

language of our own statute. Simply put, the marital privilege would not apply to defendant’s 

acts (i.e., that he beat Nilsen, tied her up, forcibly placed her in his truck, and drove to 

Kasavich’s house in April 2004) because under the plain language of our statute the privilege 

applies only to communications and admissions made by either spouse to the other, and to 

conversations between spouses during marriage, and would never include defendant’s conduct 

here. See People v. Hall, 194 Ill. 2d 305, 335 (2000) (wife’s testimony in describing her own 

conduct in purchasing guns for the defendant and sending them to him was not subject to the 

marital privilege because the privilege does not apply to such conduct).

¶ 69 Additionally, as the majority recognizes, defendant’s motion to exclude confidential 

communication under the marital privilege sought only to bar the statement he made where he 

threatened to kill Nilsen and Kasavich. See supra ¶ 46. The majority acknowledges that 

defendant moved in a separate motion in limine to exclude, in pertinent part, the conduct that 

occurred in April 2004. Supra ¶ 46. This separate motion did not seek exclusion of this 

evidence based on the marital privilege but, rather, because such evidence constituted 

improper evidence of other crimes, wrongs, or acts (see People v. Kliner, 185 Ill. 2d 81, 146 

(1998); see also Ill. R. Evid. 404(b) (eff. Jan. 1, 2011)), which is one of the issues that this court 

has now remanded to the appellate court to address (see supra ¶ 57).

¶ 70 I find no need to analyze whether it would be proper to exclude the evidence of defendant’s 

conduct under the marital privilege when that was not the basis put forth by defendant in his 

motion in limine for barring it. Defendant specifically challenged the admission of this 

evidence of other crimes, wrongs, or acts on appeal and it would be best left, in my estimation, 

to the appellate court to consider the issue as directed.

¶ 71 Accordingly, I cannot join the reasoning of the majority opinion.

¶ 72 JUSTICE KARMEIER joins in this special concurrence.
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Dissenting Opinion Upon Denial of Rehearing

¶ 73 JUSTICE THEIS, dissenting:

¶ 74 In his petition for rehearing, defendant appropriately takes issue with the majority carving 

out a new exception to Illinois’ marital privilege that is not contained in our statutory language 

but, rather, is based exclusively on judicial opinions from other states. The majority not only 

disregards the language of our statute, but also fails to acknowledge the significant body of 

case law from other jurisdictions that finds a judicial determination of the health or worthiness 

of a marriage entirely irrelevant in determining whether the evidentiary privilege applies. See, 

e.g., People v. Starr, 622 N.Y.S.2d 1010, 1012 (N.Y. App. Div. 1995) (“It has long been held 

that it is not appropriate for a trial court [for purposes of applying the marital privilege] to have 

to determine whether a marital relationship is genuine or viable ***.”); Jackson v. State, 603 

So. 2d 670, 671 (Fla. Dist. Ct. App. 1992) (per curiam) (“The courts will not engage in an 

after-the-fact analysis of whether a statement is ‘incidental to’ or ‘because of’ the marital 

relationship, because a married couple, and each of them, should be secure in the knowledge 

that their private communications are exactly that—private.”); United States v. Sims, 755 F.2d 

1239, 1243 n.3 (6th Cir. 1985) (“We do not believe that courts can or should assess the social 

worthiness of particular marriages or the need of particular marriages for the protection of the 

privilege.” (Internal quotation marks omitted.)); United States v. Byrd, 750 F.2d 585, 592 (7th 

Cir. 1984) (“[W]e reject the government’s argument that where the communications are made 

in a ‘deteriorated marriage,’ the communications privilege cannot apply. *** [T]he making of 

the determinations of when a marriage has deteriorated to the point when its communications 

are no longer confidential would involve courts in difficult factual inquiries in which we are 

reluctant to require trial courts to become involved.”); In re Grand Jury Empanelled October 

18, 1979, 633 F.2d 276, 279 (3d Cir. 1980) (“[W]e are not confident that courts can assess the 

social worthiness of particular marriages or the need of particular marriages for the protection 

of the privilege.”); United States v. Lilley, 581 F.2d 182, 189 (8th Cir. 1978) (“We refuse to 

condition the privilege, as the government would have us do, on a judicial determination that 

the marriage is a happy or successful one.”).

¶ 75 I find it particularly curious that the majority relies upon two decisions of the Indiana 

Supreme Court (see supra ¶ 50), one from 1897, while completely ignoring that court’s most 

recent pronouncement from 2005:

“If the General Assembly chooses to engraft a qualification onto the marital privilege 

based on the quality of the marriage it is of course free to do that. But we are reluctant 

to require courts to inquire into the quality of a marriage beyond examining whether the 

marriage was for purposes of disqualifying a witness.” Glover v. State, 836 N.E.2d 414, 

419 (Ind. 2005) (citing Lilley, 581 F.2d at 189, People v. Fields, 328 N.Y.S.2d 542, 

544-45 (N.Y. App. Div. 1972), and State v. Freeman, 276 S.E.2d 450, 455 n.2 (N.C. 

1981)).

I believe this court would be wise to follow the same disciplined reasoning applied by the court 

in Glover and acknowledge that our governing statute does not contain the exception desired 

by the majority here.
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¶ 76 The majority’s analysis is misleading and, at best, incomplete. For this reason, and for the 

reasons already set forth in my special concurrence, I would grant defendant’s petition for 

rehearing.

¶ 77 JUSTICES KILBRIDE and KARMEIER join in this dissent upon denial of rehearing.