## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Gauger v. Hendle , 2011 IL App (2d) 100316

Appellate Court Caption GARYA. GAUGER, Plaintiff-Appellan t, v . BEVERLY HENDL E, EUGENE LOWERY, and CHRI STOPHER PAN DRE in The

ir Individualand Off

icial Cap acities; THE OFFICE OF THE McHENRY COUNTY SHERIFF, and THE COUNTY OF McHENRY, Defendant sAppellee s.

District & No. Second District Docket No. 2–10–0316

Filed June 28, 2011

Held ( Note: T

his syll abu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conven ie nce of the reader. ) In a n action against defendant county and other defendants see kin g damages for plaintiff’s arrest, conviction and incarce ration for the murders of his parent s, th e tria l cour t did not er r in ex cludi ng t h e appella te court’sRule 23 or

der on pla

intiff’sdirect a

ppeal fr om his conviction and evidence showi ng how the mu rders we re actu ally committed an d how the “real k illers” w ere disc overed, since the Rule 23 order likely would ha

ve confused the jury

and the excluded evidence didnot suppor

t plaintif f’s theo ry that def

endants f

abrica te d his confession.

Decision Under Review Appeal from the Circuit Court of McHenry County, No. 03–L

A–292; the Ho n. Mau reen P . McIntyre, J udge, p resid ing.

Judgment Affirmed.1 On the first trial day, p laintiff, pursuant to a n oral stipulation, dism issed the county asa defenda nt.

-2- Counsel on Appeal Matthew C. Crowl and Thomas J. Henehan, both of Schiff Ha rdin L LP, of Chicag o, for ap

pellant.

James G. Sotos, Joh n J. Timbo, and Jeffrey N. Give n, all of James G. Sotos & As sociate s, Ltd ., of I tasca, f or appellees.

Panel PRESIDING JUSTICE JORGE NSE N delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Plaint iff, Gary

A. Gauger, sued defenda

nts, Beverly

Hendle, E ugene Low er y, Christophe r Pandre, the office of the McHenry County sheriff, and the

County of McHenry 1 to recover dam ages for his arrest, conviction, and incarcera tion for the 1993 murders of his par ents , Morris and Ruth Gauger. Following a trial on c ounts alleging malicious prosecution
, conspiracy

t o malicio usly prosecute, a nd indemnification, a jury re ndered a verdict and answered special interrog atories in defend ants’ favor. Plaintiff appeals, arguing that the trial
court erred in excluding: (1) this court’s order on plaintiff’s direct appeal of his conviction; and (2) evidence showing ho w the “ actual murders” were committed and how the “ real killers”were dis covere d. We aff irm.

¶ 2 I. BACKGROUND ¶ 3 A. Proce edings P rior to the Current L

awsuit ¶ 4 In October 1993, a jury convicted plaintiff

of the Ap ril 1993 murde

rs of his p arents. On January 11, 1994, p laintiff

was sente nced to death. On September 22, 1994, his sentence was reduced to two sentences of life imprisonment without parole. ¶ 5 In 1995, while plaintiff’s direct appea l was pending, federal author ities wer e investigating the Outlaw Motorcyc le Club, a gang. On about August 31, 1995, Outlaw member Mark Quinn, wh o was being held in the Du Page County jail, contacted Sandra DeValkenaere, a federal Alcohol, Tobacco, and F irearms agent . On Septe mber 2, 1995, Quinn told DeValkenaere that Outlaw members Randall Miller and James “Preacher” Schneider killed plaintiff’s parents during a robbery . Information concer ning the federal investigation was firs t provide d to the Mc Henry County State’s A

tt or ne y’ s office

in late2 Plaintiff was incarcerated for 4 1 months.

-3- 1995. ¶ 6 On March 8, 1996, this court reversed plaintiff’s conviction and remanded the cau se for

a new tr ial. People v. Gauger , No. 2–94 –1199 (19 96) (unpu

blished or

der unde r Supreme CourtRule 23). We held that, when the police originally too k plainti ff in f or que stio ning, they placed h im in custod

y bu t lacked probable cause to do so; ther

e was no p

robable cause until plaintiff made incriminating statements at the police station. Id

. at 27-28. We also held that plaintiff’s incriminating statements should have been suppressed bec ause they constituted the fruits of the illegal arrest. Id . at 29. Finally, we determined that

the evidence

was sufficie

nt to prove

plaintiff guil t y bey

ond a reasonable doubt and, accordingly, we remanded the cause for a new trial. Id . at 29-30. ¶ 7 In Au gust

1996, pla intiff wa s relea sed on home monitoring , pending

the I llinois Supreme Court’s decision on the State’s petition for leave to appeal our decision. On Octobe r 4, 1996, following the supreme court’s denial of the State’s petition for le ave to ap

peal ( People v. Gauger
, 168 Ill. 2d

606 (1996) (table)), the McHenry County State’s Attorney

dismissed by nolle prosequi the charges aga inst plaintiff. 2 ¶ 8 On June 10, 1997, Schneider and Miller were arrested and Schne i der conf essed to the Gauger murders. Schneider later

pleaded guilty to the murd

ers, and Miller was convicted of federal racket

eering charg es that inc luded the Gauge r murder s as pre dicate acts. In June 1997, af ter his a rrest, Mi ller shar

ed a cell block in th

e Waukesh a County , Wisconsin , jail withChristopher Ignasiak. O ver the next few weeks, Ignasiak kept notes of his conversations withMiller. Jail officials discovered the notes during a random searc h of Ignasiak’ s cell. The
notes reflected that Miller had said that he wa s p aid $3,000 “by the fa rmers’ son” to “take out” the Gaugers; that Schneider had helped him; and that, if he had the opportunity , Miller would “slice” Schneider’s throat as he did the Gaug ers’ for havingtold on him. Ignasiak submitted t

o question

ing by federa l investig ators. ¶ 9 On October 1, 1999, plaintiff filed suit in feder al court , raising

bothfedera

l and state law claims agains t defend ants for his alleg ed wrongful arre st and malici ous prosecution. On Se ptember2 4, 2002, the district court granted summary judgment in defendants’ favor on the federal claims and declined supplement al j urisdiction over the state claims. Gauger v. Hendle
, No. 99 C 50322, 2002 WL 31130087 (N.D. I ll. Sept. 24, 2002). On December 19, 2002, the Governor pardoned plaintiff based on plaintiff’s innoce nce. ¶ 10 On Octo ber 30, 2003, the Seventh Circuit affirmed the dismissal of plaintiff’s fe dera l claims, except his false arrest claim. Gauger v. Hendl e , 349 F.3d 354, 359 (7th Cir. 2003), overruled on other grounds
, Wallace v. City of Chicago , 440 F.3d421 (7th Cir. 2006), aff’d
, Wallace v. Kato , 549 U.S. 38 4 (2007). Subseque ntly , the distr

ict cour t dismissed

with prejudic e the fe deral f

alse ar rest cla im.

¶ 11 B. Curre nt La wsuit ¶ 12 On September 2 3, 2003, plaintiff filed a five-count complaint in state court agains t-4-

defenda nts alleging malicious prosecution, false imprisonment, intentional infliction of emotional distress, and conspiracy and seeking damages unde r the Local Governmenta

l and Governmental Employ

ees T ort Immun

ity Act (745 IL

CS 10/1– 101 et seq. (West 2002)). After
summary judgmen t was gr anted in d efenda nts’ favor on several counts, a trial proceeded on the counts alleging malicious prosecution, conspiracy to maliciously prosecute, and indemnification. ¶ 13 Trial commenced on August 12, 2009.

¶ 14 1. Plaintiff ¶ 15 Plaintiff, age 57 , testifie d that he w orks as a n o rganic vegeta ble far mer on hisparents ’ farm, which is in Richmond, off of Route 173. In 1993, plaintiff, whowas then age 41, lived

on the farm with his parents, Morris (age 72) and R uth (6 9). In add itio n to fa rming, plaintiff’s parents also ran (on the farm) a motorcycle repair shop and sold rugs. Plaintiff and his parents lived in the farmhouse. The rugs we re sold from a trailer on

t he property . The farmhou se was located on a 214-acre par cel that Morris and Ruth ow ned; the house was about 400 to 500 feet from the end of the driveway adjacent to Route 173. ¶ 16 Plaintiff testified that he last saw his parents alive on Wednesda

y evening , April

7, 1993. His father went

to bed at 8 p.m. because he had the flu. Plaintiff went to bed at 8:30 p.m. The
next morni ng, Thursda

y, A pril 8, 199 3, plaintif

f awoke at 9 a.m. H

is parents were not in the house. Plaintiff

atein the kitchen. I

t was not a

“big de al” to him

that no one was in the house. Plaintiff was not c ertain w

here hisparentswere. He testified that his mother could have been
away on errands; his father could have been in the shop or goneto Sugar Grove (Morris and R uth had planned on going to Sugar Gr ove to purchase a tractor that their friend “ W indy ” (a man) had

told them a

bout, and Windy might ha ve picke d them up) . Plaintif f look ed for

a note. He testified that he was in a hurry . He walked behind the house to the veg etable greenhouse. ¶ 17 The rain had stopped, and plaintiff moved pepper plants out

of the greenhouse. After

he moved the plants, he returne d to the g reenhou se to start a fire to warm up the shop. Plaintiff smoked part of a marijuana joint. He had a motorcyc le project he was working on. The bike’s

owner stopped by with another motorcy cle for plaintiff to repair. After the owne r dr o pped it off, he l eft. Plain

tiff star ted work ing on the

bike. Later, a

t a bout n oon, Art Clokey, who

was renting the barn, asked pla intiff to move a pig for him. Afterwards, plaintiff continued working until 6:30 p .m. ¶ 18 While plaintiff

walked a cross the field an d to the house, he noticed a padlock on the rug trailer. This made him think that his parents hadgo ne aw ay, because the rug trailer wa s never lockedunless his parents had gone away for the day . Plaintiff went into the house and ate. He looked for a note, but did not find one. Plaintiff then walked around th e back o f the hous e and checked a garage door. It was locked, which indicate d to plaintiff that his parents were gone; they

left it unlocked when they we re home. Plaintiff returned to the shop to work on the bike. When he finished, he turned on

the radi o and fini shed smoking his joint. ¶ 19 At

10 p.m., plaintiff returned to the hous e and saw a light on in the gara ge. Helooked inside throu gh a win dow an d saw n o one. He did not l ook t hrough another window with-5-

shrubbery in front of it; had he done so, he conceded, he would have seen his fa th er ’s bo dy. Plaintiff returned to the house. He became worr ied. Plaintiff testified that his pare nts would usually return b y 10

or 10:30 p. m. He could think of no one to call. (His parents did not have cellphones.) Plaintiff waited by the phone until midnight and went to bed. ¶ 20 On Friday , April 9, 1993, plaintiff woke up a

bout 9 a.m. and looked around the house. His parents were not in the house. A man drove up and asked wh

en the sho

p was go ing to
open; plaintiff

told him tha

t he did not

know whe

re his parents were and

that the shop would
notbe opening that day

. The visito r le ft. Plaintiff put up the gate and chain, picked up the
newspap ers, and returned to the house. At about 11 a.m., Morris’s friend, Ed Zend er, and h is girlfrien d, Traci Foskus, w alked up t he driveway . Plaintiff

went outsi de and explained to themthat his parents were missing. Zender asked for a British motorcy cle nut, and they w ent to the gar age to look for it. They enter

ed the garage thr

ough a southwest door (plaintiff lifted the overhead door, which was unlocked) and pr oceeded toward the

northwest corner to a

box where th e B ri ti sh nu ts an d b ol ts we re ke pt . W he n t he y d id not fin d what Zender needed, Zender suggested

looking in the British parts section of one of the parts rooms, which was in the southeast section of the garag e. They walked east into the first parts room. Plaintiff turnedsouth

to proceed

down the first aisle, but his foot hit something on the floor and he backtracked

and chose instead the middle aisle. Plaintiff and thevisitors w alked sou th into the second parts room. There, plaintiff discovered his father’s body, f

ace down, in a pool of blood. ¶ 21 Plaintiff called 911. The operator asked plaintiff how long he thought his father had been dead; plaintiff

testifie d: “And a

t first I sai d about 24

hours. Th en I realized I didn ’t know. So I said, well, he’s been missing for about 24 hours.” Plaintiff then sear ched for his mother. He checked her car. Plaintiff

saw a key

lying in the g

rass five feet

from a blue Volkswagen that

was outside the garage. Plaintiff thought this was unusual, and he later told the police about it. ¶ 22 After the police arrived, they asked to search the

house. Plaintiff

consented to the search and answered questions. He then attempted to call his brother, wh o lived in W hitewater, Wisconsin; plaintiff

didnot reach his brother. Plaintiff contacted his brother’s neig hbors and told them that h

is father was dead. He also called Francis, Ruth’s best frie nd, and told her the

news. While looking for Franc is’s number, plaintiff located Windy’s number . He called Windyto tell him

of Morris’s death, and Windy g ave a “bizarre” response, denying that he and Ruth were having an affa ir. ¶ 23 Plaintiff led police through their search of the house. At this point, he understood that

the police suspected foul pla y. D etective

Bever ly H endle was at the scene by 12:55 p.m. She
q uestioned plaintiff. Plaintiff then spoke to the coroner. Plaintiff waited in the k itchen “i n

ca se anybody

wanted to ask [him] any more questions” and made coffee. Plaintiff looked outside a nd reali zed that it w as a

sunny day . He was concerned that his plants, which were in closed cold frames, would burn. Plaintiff testified that he asked one of

the officers if he could go open the cold frames. The offic er told him he could do so. Plaintiff was gone for 15 to 20 minutes. He spoke to neighbors during this time and took a small “hit” of marijuana that one of his friends offered him. Plaintiff returned to the kitchen.3 Plaintiff testified: “I explained when I

had done that, I

read in a case in the paper months before about someon

e who had a [conv

iction] overturned becau se they hadn’t read the ir righ

ts in Spanish. It

was a feeble attem

pt of mine at h

umor. I use irony for humor and

it was an ironic twist I felt. Then I

realized, no, thisis totally inappropriate. ”

-6- ¶ 24 An officer

askedplaintiff for a key

to the rug trailer lock. When no key could be found, pl ainti ff suggested that the officers br eak the lock. Plaintiff walked outside. He saw the officer enter the trailer and then rush out; subsequently , two or three officers rushed inside. The officers discovered

Ruth’s bod

y under a pil e of rug s. One of ficer c ame out, pointed at plaintiff, and stated “don’t let him go.” Two officers then came up to plaintiff and escorted him to a s quad car. Before he e ntered the car, the officers fr isked plaintiff’s pockets. He could not exit the squad car because there were no ha ndles on the inside of t he doors and there wa s a cag e betwe en the ba ck and fr ont seats . It w as about 1 p.m. ¶ 25 Plaintiff waited in the squad car for 20 to 30 minutes. An officer came and opened one of the rear squad-car doors and the dr iver’s-side door. The officer sat on the drive r’s side. Plaintiff asked if they had foun d his mot her and i f she wa s dead, a nd the off icer re plied in the affirmative. Plaintiff stated that hewas afr aid of tha t. He also said, “ho w could

anybody do something

like this for money?” Plaintiff testified that this w as the onl

y r eason he could conceive of to explain why his parents were killed. Plaintiff

did not cry; he testified that he didnot show any emotions while with the office rs, because he

was in shock. Plaintiff

asked
to leave to urinate, and he did so behinda tree with the officer standing nea rby. He wa s then escorted back to the squad ca

r. After 45 minutesto 1 hour, p laintiff asked ag ainto go urinate, which he did. He r eturned to the squa

d car and stay

ed for tw o to three

hours. ¶ 26 Hendle

approac hed the sq uad car and told the officer who waited there with plaintiff that they would be taking plaintiff

to Woodstock. Plaintiff was escorted to another squad car and

was told that he would be transported. Plaintiff asked whether they

were “going for ridies,”

a reference to what his brother would say when he

took his dogs for a ride. Plaintiff testified that he would “make comments sometimes when [he wa s] u ncomfortable” and that he wanted to “lighten themood,” since he had been waiting for hour s. “It was just a shor t flip comment”and ther

e was “n othing to

it.” Hend

le sat in the fr ont passenger’s seat, and plaintiff was transported

to the sheriff’s department. There, he was placed in an interrogation room. I t was about 4 p.m. ¶ 27 The interrogat ion, w hich lasted 18 hours, was neither videotaped nor audiotaped, and

none of plaintiff’s statements was reduced to writing. Ac cording to plai ntiff, the interro gation

roomwas 12 feet wide a

nd 20 fee t long. H endle le d plaintif

f into the r oom. Detective Eugene Lowery was wait ing in the room. He

ndle and L

owery read pla intiff his Miranda rig h ts. Plaintiff then made a “flip comment” ( i.e. , sa id “ Qu e?, ” Sp an ish

fo r “ Wha

t?” ) when hi s rights were not read

to him in Spanish. He then apologizedfor the comment, realizing that it was “inappropriate.” 3 Plaintiff testified that he makes “flip co mments” w hen he is n

ervous. Plaintiff did not request an attorney because he had nothing to do with his parents’ murders and he wante d to coope

rate with the police. The detectives interviewed plain tiff, ask ing him questions about the

preced ing two d ay s. They

then wen

t over the events a gain. Pla in tif f-7-

signed a consent- to-sear

ch form a t 4:20 p.m. ¶ 28 The interrog ation con tin ued. By 7:30 p.m. pl aintiff was tired and had not eaten. He testified that he had told the detectives every thing he knew. Everyone loved his father, and plaintiff could think of no one who might have wanted to hurt his parents. Plaintiff wanted
to leave, and the detectives told him that they would not let him go. The y c onti nued questioning him. ¶ 29 Plaintiff

testified that he told the de tectivesthat he di d not call h is brothe r at 10 p.m

. on Th ur sd ay, April 8, because he did not want him to worry . “Th at’s not the w ay we did things[,] *** my

parentswere very

private people. They

took care of themselves. So no news is good news.” Plaintiff also tol d the d etectives that he did not call police on Thursday evening because

it was his u

ndersta nding tha t he had to

wait 2 4 hours to rep ort a missing
person. At most, his parents were missing since Thursday morning, and it was not

unusual for th em to re tu rn ho me at 10 :3 0 p .m . A cc or di ng to pl ai nt if f, Low er y asked him

ma ny questions about the route he took to look for the British nu t instead of walking down the middle aisle of the parts room; plaintiff explained t o Low ery th at he went to look for the British nut in the box containing such pieces; when he did not find one there, he to ok the quickest path to the second parts room, i.e. , throu gh the first parts room. Plaintiff told the officers that he thought his father was killed abo ut 7:30 a.m., because, when his body was disco vered, he was w earing b oots and a co at he t ypically wor e firs t thi ng in t he mor ning. ¶ 30 The questionswent into p laintiff ’s b ackground, including his alcoholism (he had been sober over one month pri or to the interview), his first marriage and divorc e, his children, living in a commune in Tennessee, et cetera. B y 10 p.m., plaintiff had still not eaten and had drunk 15 cups of coffee. Plaintiff testified that he was tired and asked if he could leave; he

was told that he

could not l eave. T

he detectives told p laintiff that they did not bel

ieve his
st or y, a nd Low er y y elled at him. At this point, plaintiff offered to undergo a poly graph examination. The detectives agreed, a nd plaintiff

signed a consent for them to administer and videotape the examination. ¶ 31 While waiting for the polygr

aph examiner to come to the station, the questioning became less “in tense” o r “badgering.” The detectives ordered sandwiches, and plaintiff a te a few bites and drank water and coffee

. Plainti ff inquir ed wheth er poly graph s were r

eliable a nd told the detectives that he had read that relaxatio n or medita

tion could lower one’s blood pressure and affect the test results. Plaintiff told H endle t hat he could lower his blood pressure and that he meditates. The p olygra ph examiner, Kenneth

Franke nberry , arrive d at midnig ht. While Frankenberry

was preparing plaintiff for the examination, he asked plaintiff if he was

awarehow his parents had been killed. After plaintiff replied in the negative, Franke nberry told him that the

ir throat s had bee

n cut. Thiswas t

h e first time that plaintiff was informed of this. ¶ 32 While Frankenberry was setting up for the examinat ion, plai ntiff spon

taneousl y made another “flip” comment, about

“voices” ( i.e. , “I said voices”), a nd then apologized. Plaintiff

was fatigued at this point. He ty pically went to bed

at 10 :3 0 p .m . a nd al mo st al wa ys before midnight

. The examin ation last ed about o ne hour. Plainti ff testified that he answered4 Frank enberr y testifie d that h

e could not pas s plaint

iff, bec ause the

recordswere fl at. Plaintif f showed signsof fatigue; he y awned throughou t the examination. Frankenberry concluded that the r esults were “[i]nconclusiv e, inconsistent due to flat polygraph reco rd usually associated with fatigue.” Fra

nkenb erry b elieve d that p laintiff’ s answe rs were “more w

rong than rig

ht,” an impression

he convey ed t o the detec tives. The dete ctivesdid no t tell pl aintiff w hy Fr anken berry coul d not pass him.

-8- tr ut hf ul ly. 4 Wh en p lai nt iff

was ex it in g th e ex ami nat io n ro om , Lo wery a ske d him how he would cut someone’s throat. Plaintiff re plied that he wo uld “take a knife a nd gra b their head.” Plai ntiff

then j ust d roppe d his hands and st opped speak ing. They walked back to the inte rrogat ion room. When asked how he knew how to cut someone’s throat, plaintiff responded

that he saw it in a “Rambo” movie. At this point, Lowery

and two other officers

were in the inte

rroga tion room; t

hey asked on

ly a few que st ions for abou t 20 minutes

. Lowery left and then returned and started questioning plaintiff. D etec tive C hristopher Pandre

was introduced to plaintiff. At this point, only L owery a n d Pandre

were in t he room w ith plaintiff . Hendle returne d after

30 minutesand Pandr

e left. ¶ 33 Plaintiff testified that the questioning bec ame “biza rre” a t this time. Hendle tol d plaintiff that the detectives had a stack of evi dence a ga inst him; plaintiff stated that Hendle was “crazy,”to which Hendle replied that they did have such evidence. Lowe

ry mentioned that plaintiff told Frankenberry

that he heard v oices and pl ainti ff repl ied th at Lowery was lying. This “made no sense” to plaintiff. He inquired if he passed the poly graph examination, and Lowery told him that he did not. According to plai ntiff, “It made no sense at a ll.” The detectives told plaint

iff that t hey found a b loody

knife in h

is pocket , blo od y s heets on h is bed, and bloody fing erprints in his bedroom (none of which wa s true). Lowe ry again questioned plaintiff about the route he took in the garage. Plaintiff asked when he would be ab le to vi ew th e e vi de nc e, an d t he de te ct iv es re sp on de d t ha t h e c ou ld se e i t o n M on da y. Plaintiff asked if they

were lying , and they replied in the ne gative and further stated that they could not lie. ¶ 34 Plaintiff

testifie d that he w as exhaust ed and a sked tolie down. The detectiv es told him that he could not do so. Plaintiff asked if he could get help, t

o whic h Lo wery

“expl ode[d ]” and accused

plaintiff of “thinking about saving [his] ownass.” Lowery yelled at plaintiff a

nd putin front of him two photographs of Morris’s and Ruth’s bodies. Plaint iff p ushed them

a way

. At one point, plainti ff retr ieved the photogr aph of hismother’sbody

and pointed to her clothes, noting that they w ere not the same clothes she wore when plaintiff last saw her. Also her hair

had bee n pull ed back, and Ruth did not wear her hair that way . The interrogation

became “very intense. ” The de

tectivestold plaint

iff th at t hey did not believe him and that a 10-yea

r-old “could have done better.” ¶ 35 Next, plaintiff

testifie d, “And I

asked De tective Hendle, c ould it be p ossible tha t I did this in a blacko

ut? And she sa

id y es, yes. She sa

id this often happens in family me mbers where a person will kill someone in their family and the n black it out.” Plaintiff continued:
“I have absolutely no memor y of this. They

are not letting me go. I

don’t know what else t o do. I said well, what if I construct a hypothe

tical scenario using the details you-9- have g iven me of the crime to t ry to jog my

memory so I c an reme

mber wha

t I did because they are say ing I did it. And I said that, and an

alarm bell did go off in my mind. I mea

n wait a minute. I s this really right? But

it is like 2:00 in the morning. I want this crime to be solved. I suppose I should have asked for a lawy er then. But if I killed my parents, I want to know about it. They said they can’t lie . I’m

not thinkin g righ

t at all an ymo re. I ’m not. So they ag

reed withme. They

thought i t was a g ood idea i f I g o throug h a hy pothetic al scena

rio of how I must have

killed my

parents . Now, the

only memo ries I have of my pare nts were nothing about murdering my parents. I just had to take details from the pa st.” ¶ 36 Plaintiff

then testifie d that he t

old the de tectiveshow he wouldhave kill ed his par ents. He would have approached his mother in the trailer, walked up behind her, pulled her hair,
cut her thro at, and let he r fall. Whe

n asked if

he would h ave cov ered he r with bla nkets, plaintiff responded that he could no t recall i f he did, but, if he d id, he would have do ne so because he cared. He testified that he started to cry after he told the

detectiv es how he

would have killed his mother. Plaintiff next told the detectives how he would h ave kille d his father. He would have approached him from behind while Morris wasin the garage, pulled ba ck his hair, cut his throat, and let him fall. When the detectives asked plaintiff if his father knew he

was the re, plaintiff told them that Morris would not have heard him because he wa s “hard of hearing” (a family

trait that plaintiff has inherited). The detectives asked plaintiff what he didwith the murder weapon, and plaintiff told them that he would have left it there. Plaintiff testified that, at this point in the interrogation, he was sobbing . Hendle was on hisright side and Lowery

was on hisleft. They told him he did it. “I look at B everly

Hendle. I kill ed my mother. And she looks at me and she say s you did it, Gary .” ¶ 37 According to plaintiff, Lowery was loud and accusing and He ndle was warm and sympathetic. “And now [Hendle] says y ou did it, Gary. And I

be lieve her. I

believe her.” Plaintiff tes ti fied tha

t he told the

detectiv es that he

had no mem

ory of killing

his pare nts. “Every time I try

to get my c ompos u re, they sa y Gary , we see it in your e yes. You killed them. You’re telling the truth now.” ¶ 38 This line o f questio ning co ntinued f or 1 to 1 1/2

hours. “A nd now the

y ha ve me believing I had killed my parents.”The questioning then turned to plaintiff’s motive. They did not identify a motive. Plaintiff asked Lowery , who carried a pistol on his belt, to remove the gun because plaintiff might grab it and kill himself; Lowe ry remove d the gun. About 2 a.m., on Sa tu rd ay, April 10, t

he detectives told

plaintiff that the State’s Attorney w as there and would seek the death penalty . “I didn’t care.” ¶ 39 At about 5 a.m., Pandre e ntered t he room. He carr

ied a bag withjail clothes in it and told plaintiff that he wo

uldbe collecting his clothes. Hendle left the room, and plaintiff change d into the cl othes that Pandre h ad broug ht into the r

oom. The q

uestionin g contin

ued, with Pandre asking p laintiff

what he d

id the mo rning hi s p arents w ere mur dered. A ccording to plaintiff, he was flooded with relief. “I thoug ht oh my gos h, this is all part of the investigation. They

are just t

rying to solve th e murd er. I didn’t kill my parents. It was wonderful.” After plaintiff started recounting the eve nts, one of the detectives stated that they-10-

wantedto hear how he killed his pare nts. Plaintiff then again recounted what he maintained

was a hypothetical scena rio, but it was not couched in hypothetica l terms. How ever, h e added: “I said I

can’t believeI killed my pa rents. And I’m not ready to sign a confession because I ha

ve no memory of this. I

thinkI did it. I loa

the myself. But I

have no memory. I won’t sign a confession because I don’t remember it.” ¶ 40 At 10 a.m., plaintiff request ed an att orney . He was e scorted

to the booking sergeant

and was subsequently

placed in a holding

cell.

¶ 41 2. Defe ndant Be verly Hendle ¶ 42 Hendle

testified that, when she arrived at the farm on Fr iday, plaintiff w as a person of interest because he “was the only surviving membe r on the farm where

his parents had been murdered, and he was our source of inf ormation.” ¶ 43 Hendle

interviewed plaintiff at

1 p.m. and plaintiff was cooperative. She took a telephone callat one point. She did not tellplaintiff that he could not leave. Hendle later learned that plaintiff had gone to the greenhouse and returned. She “t

houg ht it was kind of unus ual, because his dad has just been found dead and his mother was still missing and I didn’t know where he went to.” Addressing plaintiff’s demeanor, Hendle testified that he drank coff ee and “appeared calm.” ¶ 44 Plaintiff

was placed in the squad car about 1:30 p.m. Hendle testified that plaintiff was
notunder arrest at this time; he was free to leave, although she was unaware if a person

could
open the back

door of th

e squad c ar. Onc e inthe squad car, pla intiff sa id to Hendle: “Are we going for ridie s?” Hendle t e stifi ed that she said, “What?” and that plaintiff replied: “ ‘Are

we going to Wo odstock?’ ” Hendle stated that plaintiff’s comment was “a little startling.” Addressing plaintiff

’s demea nor, she s tated tha

t it appea red to be a normal day for pla intiff; he appe ared ve

ry calm. ¶ 45 Hendle

further testified that plaintiff left the car a fe w times to u rinate a

nd to walk around, althoug

h she did not write in her report that hewalked around. At 3:40 p.m., before they went to the

police sta

tio n, pla intiff was not under arrest; he was free to leave. They arrived at the detective division offices at 4:05 p.m. They drove throug h a sally port with a
garage door that

closed be hind them. Then, they

went to a conference room, which wa s used for various purposes, including interviewing wit

nesses a nd suspects. At

4:15 p.m., plaintiff
ga ve th e p ol ic e w ri tt en pe rm is si on to se ar ch hi s p ro pe rt y. ¶ 46 At 6:15 p.m., the d etective s read pl aintiff h is Miranda rights, to which he initiall y replied, “Que?” Hendle testified that she thought plaintiff’s remark was odd. He then stated that he under stood his r

ights and that he w anted to s peak with the dete cti ves with out an at to rn ey. Hendle referred to the questioning as an interview and not an interrogation; in her view, the questioning bec ame an in terrog ation af

ter midnig

ht. ¶ 47 Co nt ra ry t o p la in ti ff ’s te st im on y, Hendle testified that plaintiff asked to leave only (by
way of requesting an attorney ) at 10:22 a.m. the next day. He did no t ask to leave around 7: 30 or 10 p. m. Fr id ay. ¶ 48 According to Hendle, plaintiff di d not appe ar ti red the entire night; he was “pretty-11-

talkative.” Hendle never asked plaintiff to write out any

of his statements or to review and sign the state

ment. Hendle denied

that Frankenberry

told her that he could not pass plaintiff because the rec ords wer

e flat, w hich is usu ally

associa ted with fatigue. According to Hendle, Frankenberry

mentioned fatiguein his writt en repor t, which she read weeks later; he did not make any statements to her to that effect on the evening of

the examination. Hendle testified
at plaintiff ’s crimin al trial th at, between 4:15 and 11:30 p.m. , pla i ntiff did not implica te himself in

his pare nts’ murde

rs. ¶ 49 Hendle

denied th at she told

pla int iff that s he had a

stack of evidenc e aga

inst him; that there were bloody clothes in his bedroom; that there wa s a bloody knife in h

is pants po cket; that there we re bloody sheets in his bedro om; or that

there were bloody

fingerprints and that his body would not

lie. She also denied telling plaintiff that the State’s Attorney was in the ha ll wa y or me nt io ni ng th e d ea th pe na lt y. ¶ 50 When plaintiff’s clothes were collected at 5:40 a.m. on Saturday and he was given

“jail garb” t o we ar, he w as not unde r arre st. Hendle

testifie d that the

jail ga rb was the

only clothing the de tecti ves ha d to gi ve pla inti ff: “Th at’s t he onl y clothi ng we had ava ilable to replace what he had volunteered to g ive us.” Plaintiff was free to leave. ¶ 51 At 5:40 a.m., Hendle left the room. She was g one for a bout 2 1/2 ho

urs. While Hendle

was absent f

rom the ro om, Pandre

and Lowery

questioned plainti ff an d plaintif f alleg edly confessed. At 8:15 a. m., Pandre exited the r

oom a nd Hendle re-entered; Pandre did not inf ormHendle of plaintiff’s confession. By 10 a.m., plaintiff did not appear f atigued t o Hendle; she testif

ied that he was still very talkative. Hendle testified that plaintiff did not

co uch hi s confession in hypothetical ter ms. He also did not state that he would not sign a confess ion beca

use he ha d no memor

y of killing h is paren ts. ¶ 52 Hendle

testif ied t hat she did not ask plaintiff if he murdered his parents, what he was going to do with the bodies, or why he stay ed on the farm rather than running a way. She also didnot ask plaintiff why he did not tell Z ender that the motorcycle shop wa s closed. Plaintiff initially told the de tecti ves th at the overh ead garage door was locked. At another point, he stated tha t he had not checked it. ¶ 53 According to Hendle, the detectives could not understand why plaintiff did not check

the motorcycle shop a

nd the rug trailer late Thursday night; he stated that he checked only the barn. Plaintiff’s father typic ally worked in the shop and his mother typically worked in the trailer. The detectives did not ask plaintiff why he took Zender and Foskus into the shop. ¶ 54 When Hendle

signed the criminal complaints against plaintiff, she knew of nophysical evidence of

the crime s. Hendle te stified th at there were no bloody finger prints on th

e farm;

no bloody sheets or clothing ; and no bloody knife. Hendle understood that plaintiff had told other detectives that he left a knife in the motorcy cle shop. ¶ 55 Hendle addressed the length of pl aintiff’s interrogat ion. She stated that, in her

experience, she had neve

r had an interview last tha t long. Pla

in tiff tal ked abou

t many subjects , “a lot” of which we re irre le vant to the investigation. Plaintiff discussed his life in Texas, various jobs he had held, a wheelbarrow his pare n ts had purchased, his ex-wife and three kids, et
cetera. ¶ 56 Hendle

testi fied tha

t she did no t lie to pla inti ff about the evidence the sheriff’s-12-

department

had c oncerning the case. She never raised her voice during the interview, but Lowery raised his voice once or twice. No one eve r mentioned a blackout while Hendle was in the conference room. When plaintiff told the detecti ves that he looked f or his par ents around10 p.m. on Thursday, he r elated that he took a

flashlight and checked the barn for his parents ’ cars. They

were located where they were typic ally stored . Accor din g to Hendle, plaintiff stated that he looked “all over” for his parents . When she a sked him if he looked

in the motorcyc le shop, he

replied that he di d not. When Hendle asked him why, plaintiff did
notanswer. Similarly, when she asked him if he looked

in the rug trailer, plaintiff replied that he did not and

he did not explain why. Plaintiff also had stated that he smoked marijuan a all day and Hendle testified, “it just seemed odd to me that at his ag e he didn’ t know to c all somebody

to ask about his p arents, if

they never

went away

without leaving a note or telling him, and he didn’t look in the places closest to thehouse wherethey normally are.” Plaintiff “was more concerned about his plants than he wa s looking for his mother.” ¶ 57 Plaintiff

told the detectives that, Friday morning he did notcall any hospitals, his brother

or sister, hi s mother’ s best fri end, or a nyo ne else. Hendle a

lso thoug ht it “odd” that

plaintiff retrieved the newspapers and mail and read them for a n hour over coffee t hat mo rning. Plaintiff further told the detectives that he thought his parents must have bee n shot in a robbery on their p roperty and that it must

have ha ppened b etween

8 and 9 a. m. on Th ur sd ay. He explained that the cat was w et when h e saw it sitting on t

he window

sill, and it

had been raining–a refer ence to h is paren ts letting the cat out. As to plaintif f’s robb ery

theory , Hendle testified that it did not appear that any thing was missing or disturbed. ¶ 58 Plaintiff

described

his relat ionship wit

h his pare nts. He sta

ted that he felt

that his father resented him when plaintiff and his twin sister were born bec a use they took more

of his mother’s time. Hendle further testified tha t the pol ygr

aph was her idea, but she was not certain of this. By

10 or 10:30 p.m., Hendle was “suspicious.” She explained: “Just the kind of–the totality of the circumstance s. He is the only surviving me mber of the family left on the fa

rm, and if someone was going to come in and kill his father in the motorcy cleshop just north of the house, the mother in the rug trailer j ust so uth of the house, didn’t

appear as anyone came in and disturbed [plaintiff]. The fact that he wasn’t looking for his mot

her. He took his co ffee cup and wa s more co ncerne d about hisplants.
He was kind o f flip abo

ut the ridi es, the que, a

nd he didn ’t call a

nyb ody to look for them, even though it was out of the ordinary f

or them to go away . Both of their cars were home. He had access to the places they were found, easily , and he didn’t have explanations why he didn’t chec k there.” ¶ 59 Hendle’s testimony conc erni ng the polyg

raph examina tion differed in crucialrespec ts from plaintiff’s testimony. Hendle testified that plaintiff made “b izarre”statemen ts concerning the test. He agreed to take it and “thought he could beat it, because he meditates and knows how to l ower his blood pressur e, and he knows all a

bout the g alvanic

skin response, and I think

it was at this time he said he was half Betazoid, which I didn’tknow what that was. I

didn’t know about galvanic skin response either, and his handswere already sweaty.” ¶ 60 In Hendle’ s view, a fter the poly graph , the ques t ioning became an interrogation. The-13-

detectives attempted to keep plaintiff focused, and the questioning became more aggressive and confrontational. After the detectives (false ly) informed plaintiff that he failed the exam, plaintiff showed emot ion for the first time and stated that he could not believe he did not
pass; he called

Frankenberry

a liar. Plaintiff also denied raising his hands and say ing “voices ” while Frankenberry

was setting up. ¶ 61 When asked if plaintiff made a comment about not remembering whether he had killed his parents, Hendle testified: “Yes. He said if he di d it, he couldn’t re

member it .” Hendl e askeda hy

pothetic al questio n conce rning ho w someone

would kill his parents, and plaintiff gestured in response

by lifting his hands. She did not rec ord his response as a confession, but she did not

interpre t plaintif f’s resp onse as hy

pothetic al. ¶ 62 The detectives asked plaintiff if he would subm it his clothes to the c

rime lab b ecause

they noticed a stain on his pants. He consented, and the detectives retrieved the jail garb (not an orange jumpsuit worn by

a prisoner). ¶ 63 When Hend

le retur ned to the interrogation room at 8:15 a.m., Lowery filled her in on his and Pandre’s conversation with plaintiff: “[ Low er y] said that

[plaintiff ] had said he killed h

is mother first, because she was the closest, I believe, and that she would–she wouldn’t be alarmed by

his presence in the rug trailer. He had looked out the window and seen her in the rug trailer, a nd she wouldn’t be alarmed

by h is prese nce, be cause sh

e knows a nd trusts h

im, and that he had come up behind her

and cut her throat, but he laid her down gently , because that would mean he cared, and I believe there was some discussion about her being covered with rug s or blankets

. And then he said he had gone out to the motorcy cle shop andcame up behind his dad who was walk

ing awa y f rom him and

cut his thr

oat, and I can’t r ecall a ny thing further at this time.” During Lowery ’s recap, plaintiff did not state that what Lowery was recounting was not true or did not occur. He did not state that he would not sign a statement. L owery left the room and returned with breakfast and left ag ain. ¶ 64 At

some point

after H endle re

turned to the interrogation room, plaintiff began sobbi ng. He asked why he

would “do this.” He stated that he did not understand why he would kill the people who meant

the most to him, and he wondered if he was “afraid of suc cess.” Lowery returned to the roo m at 10 a.m ., and pla intiff stated “ ‘I killed my parents.’ ” The

co nv er sa ti on co nt in ue d, an d, at 10 :2 2 a .m ., pl ai nt if f r eq ue st ed an at to rn ey. ¶ 65 During the inter rogation, Hendle was un aware that Morris had sustained two slash wounds, that he had been stabbed, that he had three injuries t o his head , and that

his skull had been fractured. She was also unaware that Ruth had sustained thr e e slash wounds to her throat, that her head had been hit, that her skull was fractured, andthat she had seven injuries to her head.

¶ 66 3. Defendant Eugene L owery ¶ 67 Lowery

testified that, at the sheriff’s station, the detective s rea d plaintif f his Miranda-14-

rights, but he wa s not under arrest. Plaintiff

never a sked to le ave a t any time during the interview. During the interview, plaintiff made references to the Bible. Lowe ry wrote in h

is notes, “Jesus Freak.” He explained that it was a notation to remind him to ask plaintiff further questions. Lowery

testified that plaintiff never appeared tired or f atigued; he never

saw plaintiff yawn. L

owery c ould not recall if Fra n kenberry

told him and Hendle that plaintiff yawne d throughout the polyg raph. Frankenberry

did not mention fatigue. ¶ 68 When Hendle told plaintiff that he had not passed thepolygra ph examination, plaintiff

was upset; he did not believe that he had not passed. Low ery di d not neces sarily want plaintiff to think he ha

d failed , but he wa

nted to g et a

response from plaintiff because he had been “e motionless ” all night. Lowery concurred with Hendle that, up to the polygraph, the questioning w as more i n the form of an interview than an interrog ation. The questioning became more confrontational after the poly graph. Lowe

ry raised his voice

at least once durin g the po stex am que stio ning. ¶ 69 Lowery

denied that he told plaintiff that there was a lot of physical evidenc e at the scene. He also denied telling plaintiff that the p oly graph

machine does not g

ive false results. Lowery further denied th at he told

plaintiff that he c ould not lie

to him. He d

enied sta ting to plaintiff, “how could you kill y our mothe

r?” After t

he poly graph and until a

bout 5:40 a .m.

on Saturday, the interr

ogation to a great

extent covered the same ground. The G auger farm

was about 20 minutes from the interview location. Lower y testified that he

could have sent Pandre to the fa

rm to pick up a set of clothes for plaintiff to chang e into, but

he did not. Plaintiff was given jail garb to wear. ¶ 70 Between

5:40 and 8:15 a.m., Hendle was absent from the interview room and Pandre was present

. Lowe

ry did not see

signs of fatigu e inplaintiff even though plaintiff had been awa ke for over 20 hours. Lowery

was tired. Plaintiff gave a confession du ri ng th is ti me , s pe ci fi ca ll y, “an accoun

t that it was like living it at that time.” He also made a slashing motion when he described each of the murders. L

owery de nied that plaintiff ever

stated that he was not going
to sign a confession because he had no me mory of committing the murders. Lowery denied that the detectives tried to cover up anything tha t occurred during the interview by creating only a single report o f it. ¶ 71 Addressing the absence of any recording of plaintiff’s interrogation, Lowe ry explained that the depa rtment did n ot have a video camera in 1993, though he c onceded that the detectives could have obtained a tape recorde r to audiota

pe the int erview; they

chose not to. The detect ives c ould have ca lled a court report er, alt hough it was not their practiceto do so. The detectives chose not to take plaintiff’s written statement. L owery e xplained: “[Lower y] : I don’t know if it was so much chose. We didn’t at the time, and i f we may have had the opportunity to talk a little long er and w orked ou t some more

details in that confession, we might have offere d, but we did not at the time. Q. If y ou may have ha

d a chance to talk longer y

ou might have done it, is that your
te st im on y? A. Absolutely.” Lowery had previously taken wr

itten statements. When asked if there was any thing about plaintiff that suggested he would not have signed a written statement, L owery state d that-15-

ther e was nothing, except for the fact that he was ver y upset. Accor

ding to Lower

y, a t n o point did pl aintiff c ouch any statemen t in hy pothetic al terms. ¶ 72 About 8:15 a.m. on Saturday, L owery left the interrogation room and Hendle returned. Lowery returned at 8:45 a.m. with breakfast, left ag ain, and then returned at 10 a.m. O nly Hendle and plaintiff were in the room. Plaintiff was cry ing and hanging on to Hendle. Plaintiff stated: “ ‘I ki lled my

parents.’ ” He did not appear fatig ued, but he did appear very emotionally distressed. ¶ 73 Ad dr es si ng pl ai nt if f’ s s ta te me nt s c on ce rn in g t he di sc ov er y of hi s f at he r’ s b od y, Lowery testified that he thought it “odd” that plaintiff (leading Zender a nd Foskus) did not

take the
most direct r oute to the motorcycle pa

rts area; plaintiff had said that instead of walking down the first ais le, wher

e an obstr uction was present, he led the visitors down the center aisle,

w hich was farther away

from the parts area and from wher e Morris’s body wa s located

. Lowery fu rt he r t es ti fi ed th at hi s o bs er va ti on s o f M or ri s’ s b od y a nd the su rrounding area indicatedto him that there was no struggle. There were no s igns of forced entry into the
garage or the rug trailer. L owery wa s at the scene for about a half-hour; he a rrived at the farm
at 3:17 p.m. Before he left , th e sheriff told Lowery that plaintiff stated to the 911 operator th at hi s f at he r h ad be en de ad fo r a bo ut on e d ay. ¶ 74 During the inter view, it di d not appear to Lowery that plaintiff

was in shock. He never askedto leave. When the interview commenced, plaintiff was not a suspect. After the polygra ph, the q uestioning became an interroga tion. The detectives did not suspect a burglary

or similar crime; plaintiff told them during the interview that there were about 6 to 12 guns in the house. (Presumably, the guns were not missing.) Lowery testified that

plaintiff spoke in very positive terms about

his mother, but was “more negative” about his fathe r. Plaintiff stated that it was a good day when he did not have to see his father b efore he went to the greenhouse and started work. ¶ 75 When plaintiff awoke on Thursday , April 8, 1993, he no tice d that the dishes from the
prev i ous evening’s dinner had not been washe d, contrary to his mother’s custom, that the beds had not been made, and that there were no signs that anyone

had eate n breakfast that morni ng. Plaintiff stated that his parents had previously left the far m wit hout leavi ng a note. ¶ 76 According to Lowery , plaintiff told the detec tives that he looked everywhere for his parents(beginning about

10:30 p.m. Thursday), but he ha d no answer when they

specific ally askedhim if he looked in the most likely places his parents would be: the motorcy cle shop and the rug trailer . Plaintiff ’s explana tion of the light on in the motor

cy cleshop “varied.” On the one hand, it was unus ual fo r the light to be on; on the other hand, it was left on for

se cu ri ty r ea so ns . O n T hu rs da y, p la in ti ff sm ok ed ma ri

ju an a a ll da y; he said th at it was a ll a blur. Lowery

did not know if plaintiff’s efforts to loca te his par ents were “genuine.” He explained that plaintiff did notwake up until 9 a.m. on Friday . Lowery was concerned that plaintiff stated that he picked up the mail and newspapers (seve ral days’ w orth) and put up the chain. Plaintiff had stated that, if the chain was do wn, his parentswere ho me and, if it was up, th

ey were g one. Plain

tiff made no phone c alls try

ing to loc ate his pa

rents. ¶ 77 Lowery ’s analy sis was tha t, given that there were no signsof intruders and nothing was miss ing, either the Gaugers were surprise d by

their attacke rs or the y w ere fa miliar wit h their-16-

attacke rs. Lowery

also found it

odd that any potential robber or burglar did not also search the farmhouse either to take something or to ensure that nobody witnessed the crimes. When they discussed a polyg

raph, Lowery

was disturbed when plaintiff stated that he thought he could “be at” the e

xam. ¶ 78 In Lowery ’s view, the q uestionin g turne d into an in terrog ation and

became mor e confrontational after the poly graph because t he detective s wanted more details from plaintiff. Lowery denied ever asking plaintiff i n the hal lway how he would have k

illed his pa

rents. Rather, Hendle

asked how someone could kill plaintiff’s parents, although L owery c onceded that, in he r repor

t, Hendle wrote tha

t Hendle a sked “ho w someone would do th at.” At th

is point, plaintiff made a motion with his hands: he raised his left han d and made a fist and started t o raise h is right h and; he th

en put dow n his arms. ¶ 79 L owery

denied that he told plaintiff that the police had bloody clothes, a bloody

knife
, or bloody sheets; it would have been a “huge mistake.”He explained that the dete ctives did
notknow what had been discovered at the crime scene; it would have been a “horr ible risk”
to attempt to

“bluff”plaintiff

. Plaintiff stated tha

t, if he killed his p arents, he did not remembe r it. ¶ 80 Initially , plaintiff did not want to see the photographs of his parents’ bodies, but he later viewedthe photographs. Lowe ry denied that he stood up andslammed th e photog raphs ont o the table in front of plaintiff and y elled something at him. Rather, he opened a file folder

and laid them in front of plaintiff. P lain tiff did not show any emotional rea ction or shock. Plai ntiff comme nted t hat hi s paren ts wer e weari ng out door c loth ing. ¶ 81 The rug trailer was 30 feet from plaintiff’ s bed room. T his aspect “bothered” Lowery because plai ntiff claimed that he did not hear any thing. Plaintiff never asked to use the telephone in the interview room. When Pandre entered the interview room with jail garb, Lowery did not inten d t o charge plaintiff with the murders, bec ause the detectives did not have pro bable ca use to bel ieve tha t plaintif f committe d the crimes. ¶ 82 Plaintiff

began his confe ssion afte

r Pandre told him that the detectives were not there to judge him. Plaintiff stated that he d id not reca ll if he co vered up

his mother ’s body

with blanketsafter he killed her and he did not recall if he loc ked the trailer. Plaintiff

also stated that, if he did cover up his mother, that would have meant that he cared for her.

¶ 83 4. Defendant Christopher Pandre ¶ 84 Pandre testified that he saw plaintiff in the interviewroom for a few minutes about12:30

a.m. on Saturday, Apr

il 10, an d then wa s presen t in the roo m betwee

n 5:40 and

8:15 a.m. P laintiff did not appear tired. The detectives ga ve plaintiff jail clothes (about 5:40 a.m

. ) before he alleg edly

confessed

(about 7 or 7:30 a.m.). According to Pandre, he c ould not have retrieved clothes for plaintiff from the Gauger farm because it was a crime sce ne andwas on lockdown. ¶ 85 Pandre denie d yellin g at pla inti ff duri ng the i nterr oga tion. When the detectives asked plaintiff why he killed his parents, plaintiff explained that he believed he was a “dredge” on themand that they we

re alway s taking care of him. This explanation was not included in the detectiv es’ rep ort.5 The answers included that, when they initiated criminal proceeding s against plaintiff: (1) each detective had prob able cause to believe that plain tiff committed the charged offenses; and (2) none of the detectiv es acted with m alice.

-17- ¶ 86 5. Other Witnesses ¶ 87 Ginge r

Blossom, plaintiff’s sister, testified that, some time after the murders, she me t Hendle at the f armhouse. He ndle told Blossom that, to assist people in talking, detectives sometimes ask

suspects hypothetical questions about how they would have killed someone. ¶ 88 Ed Zender testified that, when he and F oskus drove up to the Gauger farm on the da y the Gauge rs’ bodies were di s covered, the gate at the end of the driveway

was closed and the chain was up (he parked his truck on the side of Route 173). Plaintiff told him that he had
notseen his p arents f

or two da ys a nd thought this wasunusu al . Plaintiff thought that they might be out of tow n wit h Win dy. Plai ntiff did n ot hes itat e to ta ke Ze nder in to the motorcy cleshop. Describing the room they wa lke d through immediately be fore they discovered Morris’s body , Zender testified: “Thereis only one window in there, but it is on the other end where there’s not much light with all the shelving in the way. [Plaintiff] had started to go down one row that was right through the doorway. I

believe it was too cluttered with things so we backed up and moved over to the next row to walk down the middle part there.
From there, we walked to the end. And y ou come to a dead end

in that ais le . You have to turn right and go up a step and then turn left to go into the next room where we were going.”
Once they went up the step, they discovered Morris’s body . Plaintiff appeared worried and askedfor a hug. He was co ncerne d for his mother and inquired about her severa l times. As
to his father, plaintiff speculated that he might have tripped ove r somet hing in the aisles. According to Zender, the

aisles were cluttered. ¶ 89 Zender

further testified that he, Foskus, an d plai ntiff looked for Ruth. Zender looked through a window into the ru g traile r, and pla intiff ch ecked o ne of the

barns. ¶ 90 Dr. Lar

ry Blum, the pathologist

who conducted the autopsies of the Gauger s’ bodies after plaintiff had beencharg ed, testif

ied that Mo

rris sustained blunt force injuries to his scalp, a stab wound to his back, and at least two starting points for the neck wound. Ruth sustained bluntforce trauma to her head, and the slash wound on her neck was caused by at least three

cu ts . D r. Bl um st at ed th at he di d n ot fi nd an y si gn s o f d ef en si ve st ru ggl e o n e it he r b od y.

¶ 91 6. Verd ict an d Sub seque nt Pr oceedi ngs ¶ 92 On August 20, 2009, the jury returned a verdict and

answered special

interrogatories in defe ndants’ fa vor on all

claims. 5 On August 20, 2009, the court entered judgment on the verdict

. On March 1, 2010, t he court denied pl aintiff’ s motion for a new tri al. Plaintiff appeals

.-18-

¶ 93 II. AN ALYS IS ¶ 94 A. Plaintif f‘s State ment of F acts ¶ 95 Prelimina ri ly, we address defendants’ request that we strike port ions of

plaintiff’ s statement of facts for

being in violation of

Illinois Supreme Court Rule 341(h)(6) (eff. Ma rch 16, 2007) (appellant’s statement of facts “shall contain the fa cts necessary

to an understanding of

the case”). They

argue that plaintiff’s statement of facts presents a skewed version of the re

levant f acts by citing o nly , wit

h one exception, to his own testimony; that he ignores al l testimony that contradicts his own; and that he omits portions of his own testimony that do not favor him. Although we agree that plaintiff’s statement of facts violates the ru le, we reject defendants’ reque st to strike and instead will ignore those portions that provide an incomplete version of the events. Given that we possess and have reviewed the record and defendants’ statement of facts, our re view of the appeal is not hindered. Budzileni

v. Departmen t of Hum an Rights , 392 Ill. App. 3d 422, 440-41 (2009) (declining to strike brief).

¶ 96 B. Probable Cause–Exclusion of Appellate Court Order ¶ 97 Turnin g to the mer it s plaintiff argues first that the trial court erred in excluding from evidence our March 8, 1996, Rule 23 order that reversed plaintiff’s conviction in his criminal trial. He arg

ues that exclusio n of the order tainted the jury ’s evaluation of probable cause. Plaintiff raised several alternative bases for admission o f the ord

er: (1) t he law-o f-the-c ase doctrine; (2) colla

teral es toppel; and (3) relevance. For the following reasons, we conclude that the trial court did not err in excluding the Rule 23 order from evidence

. ¶ 98 The trial cour t is in the best position to make decisions regarding the admission o f evide nce. People v. Slater , 228 I ll. 2d 137, 1 51 (2008) ; In re Marriage of Walker , 386 I ll

. App. 3d 1034, 1042 (2008). We review evidentiary rulings for an abuse of discretion. Porter

v. City of Chicago , 393 I

ll. App. 3d 855, 857 (2009). A trial court abuses its discretion where

no reasona

ble pers on would

take the view adopted by

the court. Dawdy v. Union Pacific R.R. Co. , 207 Ill. 2d 167, 176-77 (2003). ¶ 99 To est ablish mal i cious prosecution, a plaintiff must show: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defe

ndant; (2) that

the proceeding terminated in favor of the plaintiff; (3) the absence of probable ca use; (4) malice; and (5) damages. Swick v. Liautaud , 169 Ill. 2d 504, 512 (1996). The failure to establish any

one of the foregoing elements prec ludes recovery for malicious prosecution. Fabiano v . City of Palos Hills , 336 Ill. App. 3d 635, 641 (2002). ¶ 100 Plaintiff

moved in limine to admit our Rule 23 order, arguing that the orde r was the law of the case and was definitive as to whether there was probable cause to arr est plaintiff absent defenda nts’ assertions that

he confessed and, thus, it was relevant to a key element of plaintiff’s malicious-prosecution claim. In the orde r, we held that, when the officers origina lly took plain

tiff in for ques tioning, they

placed h im in custod

y bu t lacked probable

cause to do so; there was no probable cause until plaintiff made incriminating statements at the police station. Gauger , slip order at 27-28. We further held that plaintiff’s incriminating
statemen ts should have been suppre sse d because they constituted the fruits of the illegal6 False arrest or false impriso nment is the un lawful restraint of an indiv idual’s personal liber ty. Lappin

v. Cos tello , 232 Ill. App. 3d 103 3, 104 1 (1992 ). The el emen ts of false arrest “are that the plaintiff was restrained or arrested by the defendant, and that th e defendant acted withou

t having

reasona ble grounds to believ

e that an offense

was comm

itted by the plaintiff.” (Em phasis added.) Meerbrey v. Marshall Field & Co. , 139 Ill. 2d 455, 474 (19 90). “If prob able cause existed for the
arrest , an ac tion for

false ar rest can not lie. ” (Em

phasis a dded.) Lappin , 232 Ill. App. 3d at 1041.

-19- arrest. Id . at 29. ¶ 101 Defendants responded below by arguing that

the law-of-the-case doctrine doe s notapply
to a judgment reached in a separate and distinct proceeding. Althoug h they conceded that

the facts in the two c ases ove rlapped , they

asserte d that the

ma tters were no nethele ss separ ate and contained diffe rent legal issues, pa rties, and standar

ds of proo f. Addre ssing pr obable cause, defendants argued that the issue in the criminal case was not identic al or relevant in the civil cas e. Thus, t

hey urged that prob able ca

use in the criminal case was not going to be relitigated

in the civil suit, bec ause the precise issue wasnot the sa

me. Defe ndants noted that

we determined that

there was no probable cause to arrest plaintiff. Defendants argued that plaintiff ’s curre nt suit alle ged not false arre st , 6 bu t o nl y malicious prosecution , which involve s assessing whet

her prob able ca

use existed

when pla intiff wa s charged . In this regar d, defenda nts urged , the Rule

23 order was limite d to deter

mining pr obable c ause to a

rrest and di d not address whether there was probable c ause to institute or continue crimina l proceedings against plaintiff. ¶ 102 On August 7, 2009, the trial court denied plaintiff’s motion in limine (ruling that the Rule 23 order w as inadmis sible), u nless def endants opened the door to such evidence. (The record on appeal contains no transcript of any hearing on that date.) ¶ 103 During trial, after L owery testi fied, plain tiff’ s coun sel no ted to the tr ial j udge that both Hendle and Lowery

had testified that plaintiff was not under arrest when he

was at the police station. He requested that a stipulation be read to the jury that, based on the Rule 23 order, defendant was actually

under ar rest. De fendant s’ counse

l objecte d, no ting tha

t plaintiff’s counsel opened the door by asking q uestions c oncerning whet her plaintiff wa s under a

rrest. The trial court agreed and denied pla intiff’s counsel’s request. The court noted that it was denying his request because: (1) plaintiff ’s counse l himself o

pened the door to ad

dress something the cour

t had alr eady excluded v

ia a prior ruling; (2) the

law-of-the-case doctrine did not per

mit its entr

y, a s the appe

llate court did not rule on precisely the same issue; and (3) granting the request could conf use the jury

“as to wh at all thismeant, a s opposed to what they knew and

did at a certain point in time .” The c ourt invited plaintif f to submit case law supportin g his ar

gument. ¶ 104 Plaintiff

raised th e issu e aga

in in his posttrial motion. At the hearing on the motion, plaintiff’s counsel a

rgued that the Rule 23 orde

r held tha t there w as no prob able ca use until plaintiff’s alleged confession, and the arre st and the charges were not so attenua ted in time

as to make the order

ir re le va nt or co nf

us in g t o t he ju ry. Plaintiff ’s counse l also arg ued that,

as to relevance, the order would have informed the jury that, dur ing the gre at bulk of

the time that plaintiff was questioned, there was no probable cause, and thus the jury would have been7 Althou gh he addressed this issue in his b riefs to this court, plaintiff essentially conceded
atoral argum

ent that the law- of-the- case doctrine does not ap ply here. We nev

ertheless addres s it, as it is briefly

dispos ed of.

-20- better able to focus on the central issue–whether plaintiff conf essed. C ounsel ur

ged tha t, whether the orde r was ad mitted as l aw of the

case or via estop pel, the jury should have

been able to make itsprobable -cause finding s with

the knowledge that plaintiff was unde r arre st when he was pu

t in the squa d car at

the far m, espec ially

in conside

ring the parties’

cr ed ib il it y. He further

urged that plaintiff suffered pre judice as a result of the jury evaluating
pr ob ab le ca us e b as ed on ly o n t he tr ia l t es ti mo ny. ¶ 105 In deny

ing plaintiff’s m

otion for a new tri al, the c ourt note d that th e Rule 23 or der focused on whether therewas probable cause to arrest , where as the fo cus of the malicious

prosecution suit was probable cause to initiate the proce edings. Th us, the issues were differe nt. The court

reiterated that it would havebeen confusing for the jury to hear that there

was no probable cause for plaintiff’s arre st until his confession. Furthe r addressing juror confusion, the cour

t note d that the Rule 23 order also addressed, for double jeopar dy
purposes , whether there was sufficient evidenc e at the criminal trial t o prove defendant’s guilt beyond a reasonable doubt. Gauger , slip order at 29-30. Th

e trial ju dge sta

ted that th is issue would also have confused the jury and that it was notan issue in the civil suit. (Plaintiff sought to introduce the entire Rule 23 order.) ¶ 106 On appea

l, plaintiff argues first that the law-of-the-case doctrine a pplies here given

the “nearl y total overlap” of the probable cause issue in both the criminal and the pre sent procee dings and given the near ly id entical p arties a

nd intere sts in both p

roceed ings. 7 Plaintiff contends that def

endants w ere allo wed to relitigate a critical aspect o f probab le cause

and to

encou rage the jury to rea

ch a differe nt conclu sion about

the issue . Thus, excluding the Rule 23 order undermined our author ity and invited inconsistent results. Plaintiff, for example, takes issue with

defenda nts’ closing arg

uments, noting tha

t t hey foc used on evidence of probable cause from events before the disputed morning hours of April 10, 1993. He note s that these were the sam e fa cts that w e had ad dressed and held d

id not cons titute pro

bable

cause. ¶ 107 The l aw-of-the-case doctrine provide s that “where an issuehas been litigatedan d decided, a court’s unreversed decision on that question of law or fact settles that question ‘for all subsequent stages of the suit.’ ” Pekin Insurance Co. v. Pulte Home Corp. , 344 Ill. App. 3d 64, 69 (2003 ) (quo ting Norton v. Ci ty of Chicago , 293 Ill. App. 3d 620, 624 (1997)). There are two excep tions to the doctr ine: (1) w here a h igher r eviewing court sub sequentl

y issues a con trary ruli ng on the same issue; and (2) where the lower re viewing court, after remanding the case for a new trial on all issues, determines that its pr ior deci si on was palpably erroneous. Alwin v. Village of Wheeling , 371 Ill. App. 3d 898, 911 (2007). Unlike collateral estoppel , which we discuss be

low, the la

w-of-th e-case doctrine applies to

issues that were already

determined in the same case. People v. Tenner , 206 Ill. 2d 381, 396 (2002). ¶ 108 The law-of-the-case doctrine ha s no application here. Thepresent lawsuit is a civil case and is thus distinct fro m plai ntiff’s criminal case. Although the two proceedings involved-21-

similar facts, the legal issues, standards of proof, and pa rties were different. ¶ 109 Alwin v. Village of Wheeling , 371 Ill. App. 3d 898 (2 007), upon which plaintiff relies, is inapposit

e

. Alw in involved an airplane crash and a subsequent wr ongful-death and survival suit against several municipal defendants and the plane’s owner. In a prior appeal, the appella te court held that the municipal de fendan ts owed the plaintiff s a duty of care (to maintain a public airport in a reasonably

safe condition) and that

the munic ipal def

endants

were not immune from liability under a tort immunity statute. I d . a t 905, 912; s ee also Anderson v. Alberto-Culver USA, Inc.
, 317 Ill. App. 3d 1104, 1112, 1117 (2000). The Alwin
court rejected the munic ipal def endants’ argume

nt that the law-of- the-ca se doctrine did not
ap pl y, concluding that the issues of duty and immunity

were previously

decided and were the law of the case and therefore binding

. Alwin
, 371 Ill. App. 3d at 913-14 (rejecting argume nts that doctrine did not app ly w

here the previo us dec ision dealt with summary judgment and that two exceptions to doctrine applied). Thus, the municipal defendants we re prec lu ded from asserting that the prior appeal was wrongly decided. In c ontrast, plaintiff here se eks, in

a different case and with different parties, to assert that the Rule 23 order from his criminal

case wa s the law o f the ca se in the p resent c ivil suit. ¶ 110 Plaintiff further complains that the jury was not a llowed to consider the fact that he

was placed under arrest at the farm

and remained

under ar rest thro ughout h is interr ogation . In h

is view, the jury was not allowe d to conside r th is fact as part of the totality of the circumstanc es. He notes that this situation was made worse by de fendants’ testimony that plaintiff was not under

arrest during his interrogation and that he was free to leave right up
to the time he

made the incrimina

ting sta tements. T

his testimo ny, pla intiff argue s, was in contravention of the Rule 23 order a s to the issue of arrest, and he notes that it was during this testi mony that his co unsel aga in moved to admit the order. Plaintiff asserts that our authority was under

mined by allowing the

jury to draw its own conc lusions about whether plaintiff was unde

r arre st and by

allowin g defen dants to te stify that plain

tiff wasfree to leave. Further , he conte

nds t ha t the jury

was dec eived and that its evaluatio n of proba ble

cause w as tainte d. We reject plainti ff’s ar gument. ¶ 111 Ini ti al ly, we reject plaintiff ’s compla int conce rning de fendant s’ testimony that

plaintiff

was not under arrest during his interroga tion and that

he was free to

leave r ight up to the time that he made t

he incriminating

statemen ts. As pre viously noted, it w as pla in tiff’s counsel who questioned the detectives on this issue. Thus, as the trial court noted in denying plaintiff’s request to admit the Rule 23 order, plaintiff’s counsel h imself ope

ned the do or to addres s som ethin g that t he cou rt had excl uded v ia a pri or rul ing. ¶ 112 Second, we note that, in assessing probable cause to arrest , the exi stence o f

probable

cause depends on the totality of the circumstance s at the tim e of the arrest. See, e.g. , People

v. Love , 199 I

ll. 2d 269, 279 (2002). The determination is based on facts known to the police
at the time of the arrest. Peoplev. Chapman , 194 Ill. 2d 186, 217 (2000); see also 725 IL CS 5/107–2(1)(c) (West 2008) (peace officer may make wa

rrantless arrest when the

officer “has

reasona ble grounds to believe that the person is committing or has committed an offense”). The existence of probable cause in a malicious-prosecution action is “determined by looking
to what t he defe ndant s knew at the time of sub scrib ing a criminal complaint” and not at the (earlier) time of arrest. Porter v. City of Chicago , 393 Ill. App. 3d 855, 868-69 (2009). In a-22-

malicious-prosecution case, pr obable c ause is de

fined as“ a state of fa cts that would lead a
person of ordinary

care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged.” (Emphasis added.) Fabiano , 336 Ill. App. 3d at 642. “I

t is the sta

te of min d of the pe

rso n commencing the prosecution that is at issue–notthe actual facts of the case or the g uilt or innocence of the accused.” Sang Ken Kim

v. City of Chicago , 368 Ill. App. 3d 648, 654 (2006). Errors that are not grossly negligent do
notaffect the probable cause inquiry when the complainant has an honest belief that the accused is probab ly

guilty of the offense. Id . at 654-55. The issue in the present lawsuit was whether defendants had probable cause to cha rge plaintiff on April 10, 1993. The Rule 23 order address ed proba

ble caus e to arr

est, which is a diff

erent i ssue, as pl aintiff a

cknowle dges. We agree with defendants that the Rule 23 orde r’s conclusion that before plai nti ff made incriminating statemen

ts there w as no prob able ca use to ar rest did not mean that

the even ts leading up to the statements could not be considered in conjunction wi th plaintif f’s
statemen ts in determining whethe r there was probable cause to prosec ute. Cf. People v. Strauser
, 146 Ill. App. 3d 128, 132(1986) (law-of-the-case doctrine and collateralestoppel didnot ap ply to preclud e trial c ourt fro m hearin g the de fendant s’ motions t

o suppres s evidence; e ar lier appellate court decision addressed probable c ause for th e issuanc e of a search warrant

in context of addressing two motions to quash the search warran t, whereas the cause at issue concerned probable c ause to arr

est). ¶ 113 Next, we address plaintiff’s clai m that coll ateral estoppel warranted admission of the Rule 23 order . Prelimina

rily , we note

that it wa s defend ants, not p lain tiff, who first raised collateral estoppel at trial. Plaintiff addre ssed collat eral es toppel onl y in his reply

to defenda nts’ arguments, including in his reply on his posttrial motion. Th us, plaintiff has
argua bly forfeited this argument. See Gillespie v. Unive rsity of Chic

ago Hospit

als , 387 I ll. App. 3d 540, 546 (2008) (to preserve an issue for appeal, a n objection must be made at trial and the issue

must be ra

ised in a posttrial motion); see also Midwest Physician Group, Ltd.

v. Department

of Revenue , 304 I

ll. App. 3d 939, 952 (1999) (where collateral estoppel is not raisedat trial, issue is for feite d for re view) . Howe ver, gi ven th at the trial court made fi ndin gs on this issue , we choo se to brie fly addressit. ¶ 114 Collateral estoppel (or issue preclusion) is an equitable doctrine that, like the law of the

c asedoctrine, prevents a party from relitigating an issue that has been decided in a prio r procee ding. Collateral estoppel applies when: (1) the issue decided in the prior adjudication is identical to the issue in the present suit; (2) a

final judg

ment was e

ntered o n the mer

its in the prior adjudication; and (3) the part y a gainst w hom estopp el is asse

rted wasa party

to or in pr iv it y with a par

ty to the prior adjudication. Talarico v. Dunlap , 177 Ill. 2d 185, 191 (1997 ). Applicat

ion of collateral

estoppel must be na

rrowly tailored to fit the p

recise facts and issues tha

t were c learly

determin ed in the p rior judg ment. Kessinger v. Grefco, Inc. , 173 Ill. 2d 447, 467 -68 (1996 ). A judgment in the first suit operates as an estoppel only as to the pointor question actually litiga ted anddetermined and not as to other matters that might have been litigatedand determined. Nowak v. St. Rita High School , 197 Ill. 2d 381, 389-90 (2001). “It is axiomatic

that cir cui t courts have broad discretion to ensure that application of offensive collater a l estoppel is not fundamentally unfair to the de fendant, even though the threshol d require

ments for collater al estopp el are o therwise

satisfied.” Preferred Personnel-23-

Service s, Inc. v . Meltzer

, Purtill &

Stelle, LLC

, 387 Ill. App. 3d 933, 945 (2009). ¶ 115 We reject p lain tiff’s claim that collateral estoppel applies here. The issue a ddressedin the Rule 23 or

der–pro bable cause toarrest–is not identical to the issue in the present lawsuit–p robable cause to prosecute. A party asse

rting “collateral estoppel bears the ‘ heavy b urd en’ of demonstrating with clarity and certainty

what the prior judgment determined. [Citat ions. ]” Peregrine Financial Group, Inc. v. Martinez , 305 Ill. App. 3d 571, 581 (1999). For the doctr ine to app ly, “ ‘it must c onclusive ly appear that the f act must have be en so in issue that it wa s necess arily decided by the

court rendering the prior

judgment. If there

is any
uncerta inty because more tha n one distinct issue

of fact is present ed to the court, the estoppel will not be applied.’ ” Id

. (quot ing Bettsv. Manvi lle Perso nal Injury Settlement Trust , 225 Ill. App. 3d 882, 926 (1992)). Here, clearly the central issue in t

he Ru le 23 order was not whether there wa s probabl e cause to prosec

ute, but whether t

here wa s probabl e ca use to arrest. A s previous ly noted, probable c ause to arrest depends on the totality of the circumstances at

the time of the arrest and is based on the facts known to the police a t that time. Love , 199 Ill. 2d at 279 (the facts known t o the off icer at the time of arrest must be sufficient to lead a reasona bly cautious person to believe that the arrestee has c ommitted a crime). In contrast, in assessing pr obable cause in a

malicious-prosecution case, we look to what the defend a nts knew when they c ommenced the prosecution ( i.e. , subscribed the criminal complaint). Porter , 393 Ill. App. 3d at 868. Therefore , collateral estoppel does not
ap pl y. Cf. Strauser , 146 Ill. App. 3d at 132 (rej ecting

collater al-estop pel and la w-of-th e-case doctrines where previous issue concerned proba ble cause for the issuance of a sea rch warrant and current issue concerned proba ble cause to arrest). ¶ 116 Next, plaintiff argues that the Rule 23 order

was rele vant to the

issue of d efenda nts’ lack of probable cause to prosecu te, and he

urges t hat its e xclusion fro m evidenc e unfair ly prejudiced

him. See, e.g. , In re Kenneth J. , 352 I ll. App. 3d 967, 980

(2004) ( evidenc e must be relevant to b e admissible). Plaintiff contends that the Rule 23 order would have: (1) instructed the jury as to what precisely did not co nstitute probable cause; (2) provided evidence of defe

ndants’ l ack of pr

obable c ause toprosecute before plaintiff’s incriminating
statemen ts; and (3) assisted the jury in unders tanding

that the e xistence o f probab le cause to prosecu te turned on

whose ac count of t

he even ts of April 10, 1993, was more credible. According to plaintif

f, the Rule

23 order clarif ied that ther

e was no p

robable cause to prosecu te plaintiff

abs ent the incriminating statements made on the morning of April 10, 1993, and, therefore, the order bore directly on a ke y element of plaintiff ’s malici ousprosecution claim andshould have been admitted. Plaintiff further argue s thatthe order was neither irrel evant nor

confusing for not completely disposing of the probable cause issue–that is, for l eaving

the ju ry to decide w

hether a confession was made on April 10, 1993. He
asserts that

our holding as to what did not constitute probable cause and our roa dmap of what
any probable cause finding in this case had to turn on ( i.e. , the making of incriminating
statemen ts) were re levant an d not confusing. In plaintiff’s view , the order would have assisted the jurors in understanding where the proba ble cause “bar” was set in this case. ¶ 117 Again, we reje ct plainti ff’s cla im. The tr ial cour t did not abuse

its discre tion in finding that the Rule 23 order w ould likely have co nfused th

e jury, and we do not believe that plaintiff was prejudiced by

the ruling. The distinctions between the concepts of arrest and8 We express no opinion h erein concerning the admissibility of the Rule 23 order in the
context of any false arrest/false imprisonme nt claim that plaintiff m

ay have pursued, because prior to trial, the cou

rt gran ted sum mary judgm ent in d efendan ts’ fav or on th at coun

t.

9 Thus, defendants could not in troduce evidence of their investigation after plaintiff was charged shortly after 10 a. m. on April 10, 1993, with th e excep tion of the pat hologis t’s te stimony.

-24- prosecution can rea sonably be viewe d as conf

using to a lay juror. Asdefenda

nts n o te, had th e Rule 2 3 order been admitted, it is reasonable to predict that the jury would have been confused by the import of our: (1) holding that there was no probable cause for pla intiff’s
arrest until his incriminating statements on April 10, 1 993; a nd (2) conclusion on the sufficiency-of- the-evidenceissue. Pla intiff’sassertio n that the

Rule 23 or

der cla rified th a t there was no pr

obable c ause

to prosec ute him ab sent and u

ntil the inc

riminatin g state

ments

on the morning of

April 10, 1 993, is not well taken. Plaintiff contends that the focus of the probable-cau se-to-p rosecut e issue in the present lawsuit was whether the incriminating
statemen ts were a ctually made. I nstead, a ccording to plaintiff

, the jury was “encourag ed” to revisit certain facts tha t we held in the Rule

23 order did not constitute probable cause, including the qua lity of plaintiff’s detective skills as he se arched for his parents and the
appropr iatenes s of his emo tional re sponses t o the unfolding events. We reject plaintiff’s claim, because

the Rule 23 order did not assess the parties’ credibility . Plaintiff’s claim that he was prejudiced by

the ruling because the jury never heard that he

was under ar

rest throughout

the inter rogati on is not we

ll t a ken because whether he was unde r arrest had no bearing on whethe

r there was prob able ca

use to pro secute h

im. ¶ 118 In summary, the trial court did not abuse

its discre tion in excluding the Rule 23 order. 8

¶ 119 C. Malice–“Real Killers” Evidence ¶ 120 Next, plaintiff argues that the trial court erred

in excluding evidence showing how the: (1) mu rder s were c ommitted; a nd (2) “r eal kille rs” wer e discove red. He urges t hat this evidence was cri tical to hi s abil ity to sh ow mal ice. Fo r the f ollo wing r e asons, we reject plaintiff ’s argument. ¶ 121 Prior to trial, plaintiff moved in limine : (1) to bar Ignasiak’stestimony and any references
to his conversations with Miller (concerning how the

“farmer’s son” paid Miller to kill the Gaugers); and (2) t

o admit Schneider’s testimony and wiretap re cordings of Schneider and Miller (on the basis of the recordings, both men were charged with the Gauge

r mur ders)

. Plain tiff also requested a stipulation regarding how his innocence was established. Defend ants’ releva

nt motions in limine sought to bar all evidence of actual innocence, other than the Gove

rnor’s p ardon. T

he trial c ourt: (1) granted plaintif f’s motion

to bar Igna siak’s testimony and any re

ferences to his alleged conve rsations with Miller; (2) denied plaintiff’s motion to admit Schneider’s testimony and the wiretap recordings of Schneider and Miller; and (3) barred any

evidence relating to the Outlaw investiga tion. 9 Also, the parties agreed to the following stipulation: “The criminal case against [plaintiff] terminated in his favor, on the mer its, and he w as p ardone d ba sed

on h is a ctu al i nno cence. In

Ju ne of 1997, the two10 Also, the jury was instructed that “the criminal pro ce eding was t erminated in fav or of

[plainti ff] on the basis of his in nocence” and that this elem ent of malicious p

rosecution had been proved a nd need not be co nside red by th e jur y.

11 On malice, the

jury was instructed as fo llows:

“ ‘Malice’ is d efine d as the intent, withou

t justifica tion or excuse, to com

mit a wrongful a ct. M ali ce is prove d by evi denc e or r easo nabl e inf ere nces draw n fro m t h e evidencethat the prosecution wa s set in motion as a result of im

proper motiv e. An improp er motive for a prosecution is any reason other than bringing

the par ty to ju stice. Th

e term malice is not limited to personal ill-will, spite, or hatred toward plaintiff. Instead, malice
may be inferred from the absence of probable caus e, if the circumstances surrou nding the

commenc ement

of the c rimin al proce eding

are in consiste nt with good faith and if the absence of probable caus e has been clearly proved.”

-25- killers were apprehended.” 10 ¶ 122 The malice element of malicious prosecution may be proved “by showing that the
prosecu tor proc eeded w ith the pro secution for the purpose

of injuring plaint

iff or fo r some other improper motive.” Aguirre v. City of Chicago , 382 Ill. App. 3d 89, 97 (2008). Malice
may be inferred from a lack

of proba ble caus e only

where there is no credible evidence that refutes that inference. Johnson v. Target Stores, Inc. , 341 Ill. App. 3d 56, 77 (2003). 11

¶ 123 1. Exclusion of Evidence of How the “Real Killers” Committed the Crimes ¶ 124 Plaintiff

argues first that

the jury should have been permitted to consider the evidence of how the “real killers” committed the crimes (the Outlaw evidenc e) and that the j ury cou ld have concluded that it supported plaintiff’s pos i tion that de fendant s knowing ly f

abrica ted his alleged confession and, therefore, acted with malice. He notes that his theory of malicious prosecution was that, ov er 18 hours of interrogation, defendants “fed” him facts that he
eventua lly recited to them whi le also ma

intaining that he ha

d no memor

y of killing h is parents

. Plaintiff contends that, based solely on the m anufactured statements (and leaving out importantfacts, including the statements’ hy pothetical nature and plaintiff’s lack of memory of the events they desc

ribed), defendants initiated criminal proceeding s against him. Plaintiff
urge s that evid

ence of the deta ils of the “ actual”crimes, t hrough the Outla

w evidence, is important

. Sp ec if

ic al ly, he notes that Schneider and Miller explained how they committed the murders, including details that only the true killers would know. They spec ified the time theyar rived at the farm; how Ruth was killed (by first being hit over the head and then having her thro at slashe d severa l times); ho w Morris was killed (by head blow s and multip le slash wounds to the throat); how the bodies were positioned; how Miller stabbed M orris in the side; and the measure s they took to leave no physica

l evidence. Plaintiff argues that the details Schneider and Miller provided give crede nce to plaintiff’s the ory

that defenda

nts manufactured

his s tatement s because key details were missing from his statements and plaintiff provided only details that he lea rned from defendants. He notes that he neve r mentioned any

injuries t o his pare nts’ heads, nor did he state that their throats were slashed multiple times. Plaintiff also notes thathe did not mention a knife woundto Morris’s side.-26-

In plaintiff’s view, a jury could have found that he did not men ti on these d etails be cause defenda nts had no knowledge of them; that is, where defe ndants were not aware of thes e details, they could not have sug gested them to plaintiff. ¶ 125 We begin our analy sis by reviewing Aguirreand Porter , the two cases upon which the parties rely. I

n Aguirre , three plaintiffs sued a municipality and six police officers, alleging that the defendants maliciously pr osecuted them for kidnapping and murder. A jury returned

a verdict in the plaintiffs’ favor, and the defendants appe aled, arguing that the trial court abusedits discretion in admitting the t estimony of the confessed murderer describing the crime. The actual killer confessed to the murder five y ears after the investigation. There after, the State ’s Attorney ’s offic e nol-pr ossed the cases a gainst t he plaint iffs. ¶ 126 On review, the court upheld the trial court’s admission of the actua l killer’s te st im on y, concluding that it was relevant: (1) to show that t he plaint

iffs rec eived a f

avorabl e termination of the pr

oceedings; and (2) to establish malice. Aguirre , 382 Ill. App. 3d at 98. As to malice, the plaintiffs had sought to introduce the actual killer’s testimony

to show that their confessions were fal se. Specifically, the y sought to show that, althoug h they did not speak to each other during the interrog ations, their confessions were similar. From this, they believedthat the jury could infe r that the p olice told

each pla intiff wh at to say , and this inferencewould hel

p establish

malice. T he appellate

court rejected the defendants’ ar gument that, from the actual killer’s testimony , the jury would have mad e sever al tenuou s infere

nces. Id

. at 99. In the court’s view, the f act that the actual killer testified to intrica te detail s of the crime that only the killer would know

would not r

equire t he jury to draw an inference; rather
, the jury could acc ept that he committed the crime. Id . Further, if hecommitted the crime, then the plaintiffs could not have committedit and their confessions were false. Id . The court noted that the actual killer’s testimony also wor ked in concert with other evidence the plaintiffs present

ed to allo w the jury

to infer malice, s pecific ally , that the y w ere hel d in detention and could

not have communicated with each other before the State filed ch arges , yet their ver sions of the events were substantially similar. Id

. ¶ 127 In Porter , the plaintiff sued a municipality and severa

l police officers, alleging

malicious prosecution. The plaintiff had been conv icted of t he 1 982 mu rde rs o f tw o i ndi vi dua ls . In 1998, a third party c onfessed to (and was incarcera ted for) the murdersand, as a result, the Statedropped the c h arges against the plaintiff and he was released from custody . The plaintiff filed a ma

licious-p rosecut ion compla

int aga inst the de

fendant s, asse

rting that the police targeted him as the shoo ter without probab le cause to do so and

coerced witness cooperation to obtain a conviction. He sought to introduce evidence of the third party ’s guilt throug h the de position te stimony of anothe

r party . The tria

l court g ranted t he defe ndants’ motion in limine to bar references to the t hird party’s g uilt contained in the deposition, finding that they

were no t releva

nt to the elements of

malicio us pro secution because there

was no evidence from which to infer that the police should have suspected the third party of the crime wh

ile they were inv estiga

ting the plainti ff . Following trial, the jury returned a verdict for certain of the defendant s, finding th at they had proba

ble cause to charge the plaintiff with the murders and that they did not act with malice. ¶ 128 On appea

l, the plaintiff argued that the trial court erred in barring evidence of the third party’sguilt. The plaintiff first asserted that the evide nce was relevant to whether the12 The Porter court, addressing the reliability of the third party’s confession and “guilt,” took judicial notice of the fact that he h ad subsequently reca nted his confession. Id

.
-27- procee dings against him were terminated in a manner indica tive of his innocence, an element the defendants had co nc eded. Th e appell ate cour

t held tha t the tria l court did

not err in excluding the evidence, noting that the trial court had allowed the plaintiff to publish to the jury the pardon he received from the Governor and had allowed him to tell the jury that the pardon was based

on a finding of innocence. Porter , 393 Ill. App. 3d at 864. Addressing the plaintiff’s second argum ent, that the evidence of the third party ’s guilt should have been admitted to support his theory of malice, the appella te court held that there was no evidence of a link between the third

party’s g uilt and the plaintiff’s theory that the police investigation

was corrupt. Id . at 867. The party who gave the deposition was the only person who knew of the third party’s involvement, a nd she withheld her knowledge from the p olic e. Id . The
court noted tha t, unlike the evidence of coerced c onfessions in Aguirre , there was no link in Porter between the third party ’s guilt and the plaintiff’s theory tha

tthe police investigation

was corrupt. Id . The cou

rt noted th at later

-discove red evid ence is r elevant to a malic iousprosecution claim only whe re there was a coerced confession ( i.e. , like in Aguirre
, “where the recanted testimony

is more reliable than the confessions”). Id

. 12 ¶ 129 Here, plaintiff argues that both Aguirre and Porter instruct that evidence that de monstrates police fabrication of a confession is admissible. Plaintiff concedes tha t th e three-plaintiff

scenario in Aguirreallowed the inference of fabr ication to be easily dra

wn, but he maintains that neither that case nor Porter indicates that

a “real” killer’ssubseque ntly obtained confess ion can su pport an i nference of fabrication (a nd thus malice) in only the limited situation of multiple plaintiff s. He ar gues tha t, here, the jury

ought to have decided whether to draw an inference of fabr ication from the fact that plaintiff’s alleged confession was inaccurate. Without the Outlaw evidence, the jury ha d no opportunity to evaluate how inaccur ateplaintiff’s confession was and, therefore, ha d no opportunity to infer malice f rom police fabric ation. Pla

intiff al s o attem pts to distinguish Porter by arg uing that the malice theory in that case was different from that in the pre sent suit. A

ccording to plaintiff, unlike in Porter
, he n ever ar

gued th at defe

ndants initiated cr

iminal pro ceeding s again st him malicious ly

because they had re ason to suspect that Miller and Schneider had committed the crimes. Rather, he concedes that, when they we re interrogating him, there was no evide nce that defendants were aware

of Miller’s and Schneider’s involvement. Plaintiff maintains that the Outlaw evidence

was rele vant to hisclaim

because, as in Aguirre , it

would have allowed the jury to infer that the police engaged in wrong doing and fabricated a

confession, and he maintainsthat Porter

held that such evidence was admissible. ¶ 130 Defendants respond that the details of how Miller and Schneider carried out the murders would nothave assisted the jury in evaluating whether defendants coe rced statements from plaintiff and then withheld tha

t the state ments wer

e couched in

hypothetical terms or

whether plaintiff voluntar ily g ave the s tatement s. Defend ants contend that the Outlaw evidence had

no bearing on whether plaintiff’s statements were voluntary or whether they

were couched in hypothetical terms and, the refore, the evidence was prope rly excluded under Porte r . In-28-

their view, the tr ial co urt gr anted plaintiff more latitude than was given in Porter when it permitted evidence that Miller a nd S chneide

r were a pprehended in 199 7, conve yin g, in defenda nts’ view, the “false impression” that every one in the courtroom agreed that plaintiff had nothing t

o do with his parents’ murders. Given this “advantage,” they urg e that

plaintiff should not h ave bee

n permitted to prese

nt all of th

e detailsof the actual murde rs. ¶ 131 Defendants read Porter to hold that, where there is a stipulation of actual innocence, the actual killer’sconfess ion is admis sible only if it demon strates p olice mis cond uct th rough either fabricating confessions or ignoring other known suspects. Defendants ar gue that the Outlaw evidenc e does no t sugg est that defe ndants acted with ma lice, lac ked a re asonable belief that plaintiff committed the murders, or falsified information concer ning the crimes. Nor was there any

evidence that defendants ignored e vidence implicating Schne ider a nd Miller or any one else when they

charged plaintiff. Further, de fendants argue that the Outlaw evidence would have confused the jury and potentially

led it to incorrectly infe

r that the laterd isc overed

confess ion had som

ething t o do with wh

ether there wa s probabl e cause . They also
notethat the admis sion of the Outlaw evidence

would hav e trigg ered defendant s’ righ t to intro duce t he Ignasia

k evidence, which would have distracted the jury and ventured into a “mini-tr ial” on pl aintiff’ s involvem ent in the murders

. ¶ 132 We reject p laintiff ’s claim that the Outlaw evidence was erroneously excluded. Both Porter and Aguirreare of limited value to our analy sis. The Porter c ourt uph eld the exclusion of evidence of the third party ’s guilt. Porter , 393 Ill. App . 3d at 866 -67. As to malice, the court held that, where there was no evidenc e of a link between the third party ’s guilt and the plaintiff’s theory that the investig ation was corrupt, evidence of the third party ’s guil t was properly

excluded. Id . at 867. The deposed party withheld from police her knowl edge of

the third party’s involvement. Id . Here, plaintiff conced es that, at the time of his interrogation, defendants were una ware of Miller’s andSchneide

r’s involv ement in h

is
par ents’ murders . Miller’ s and Schneider’ s involvem ent in the murderscame to li ght in 1995 ; defenda nts charged plaintiff with the murde rs in 1993. Thus, in our view, Porter does nothing to support plaintiff’s argument that the Outlaw evidence should have been admitted, because there was no evidence here of a link , from which malice may be inferred, between the real killers’ guilt and plaintiff’s theory that defendants fabricated his confession. ¶ 133 In Aguirre , the c ourt uphe ld the adm

ission of th

e real k iller’s te stimony

because that evidence worked in

concert with other

evidence to show that the plaintiffs’ confessions were false and to imply malice. Aguirre , 382 Ill. App. 3d at 99. The other evidenc e included the fact that the three plaintiffs (who gave substantially similar versions of the events) were he ld in detention andcould not have communicated with each other be

fore the State filed charg es. Id

. Aguirreis distinguishable in two respects. First, there were three plaintiffs who gave essentia lly the same version of the event s, which was ultimately contra dicted by the evidence, whereas, here, there is only one plaintiff. Second

an d m or e s ig ni fi ca nt ly, unlike in Aguirre
, the jury here

heard evidenc e conce

rning a lleged police pr ompting. In thi s respect, plaintiff’s assertion that the details that only the a ctual killers knew were important an d
supp ortedhis theory that defe ndants manufactured his statements fails. Plaintiff pr ovide s several examples where, he alleges, defe ndants “prompted” him to fill in gaps in his version of the events. First, after plaintiff described cutting Ruth’s throat (a

detail he could provide-29-

because he had been told of it), he began desc ribing how he walked away from her body

and towardthe shop. A

ccording to def

endants, however , they

sto pped plaint iff and a sked him whether he had covered his mother with blankets or whether he remembered

doing any

thing
to the trailer door. Plaintiff contends that he then attempted to include in his hy pothe tica l
account how he co vered hi s mother w ith blanke ts. Where he had no t been pr

ompted wit

h details, such as the padlock on the trailer door, he di d not m entio n thos e details. We reject plaintiff’s argume

nt becau se, as de

fendant s note, pol

ice rep orts fully disclosed that the police advisedplaintiff of these f acts. F urther, key

details, such as the repeated slashings, head trauma, and side s tabbing were pr esented by Dr. Blum. ¶ 134 Fi na ll y, even if introduct ion of the details of how Mille

r and Schneider committedthe murders might ha

ve suppor ted plain tiff’s c laim that n

either he nor th e pol ice knew those details and, thus, might

have led to an inference that his confession wa s the product of police suggestion, we conclude that plaintiff suffered no prejudice in light of the evidence that was presented in the present suit, most significantly : (1) the stipulation thatplaintiff’s criminal

case terminated in his favor, that he was pardoned based on his innocence, a nd that the killers

we re ap pr eh en de d; an d ( 2) Dr . B lu m’ s t es ti mo ny.

¶ 135 2. Discovery of “Real Killers” Evidence ¶ 136 Plaintiff next argues that the exclusion of evidence of how and by whom the “real killers”

were discovered

preve nted him from demonstrating malice and left the jury to infer that defenda nts themselves played some r ole in plaintiff’s exoneration. Plaintiff maintains that he was pr ejudice d by

this exclusi on. We rej ect plain tiff’s c laim. ¶ 137 The evid

ence of Schneide r’s and Miller’s in

volv ement, which federal authorities rece ived while investigating other crimes, was critica l, in plai ntiff’s v iew, to allow the jury to infer that, i f defendants were not the ones who ultimately apprehended the “real killers,” it wa s

more likely than not that they acted with malice by making

plaintiff out to be the murderer. Plaintiff argues that the

jury should hav e had a f

ull picture in front of it to assess malice. He
asserts that, without the Outlaw evidence, the jury likely inferred that plaintiff was pardoned basedon defendants’ c ontinuing investig ation and

that, if they continue d their

investigation and ultim ately

sought out the truth, they must not have a cted with malice during the interrogation

and when they

charged plaintiff. Plaintiff ar g ues that he should have been allowed to rebut this inference. ¶ 138 We disagree with pl aintif f that there was a reasonable likelihood that the jury inferred that defenda nts played a r

ole in plaintiff’s exoneration. As defendants note, none of the trial evidence suggested

that defendants play ed such a role, and the trial court generally limited the testimony

to the in ter rog ati on p eri od. Fur th erm ore , pl ain ti ff’ s as ser ti on i s s pec ul ati ve. It is equally , if

not more, likely that the jury , if it inferred any thing on this issue, inferred that

a witness came forward with r ele vant evidence. In other words, the lack of evidence that defendant s pla ye d no role d oes not ne cessar

ily l ead only

to the con

clusion th at defe

ndants continued to investigate until they exonera ted plaintiff. In any

case, we cannot conclude that the trial court’s ruling was unreasonable or a n abuse of discret

ion. Throu ghout the
procee dings the cour

t commented that it wa s attempting to av oida “mini-t rial” concerning-30-

plaintiff’s potentia

l involveme

nt in the mur

ders ( i.e. , refer

ring to Ignasiak’s state

ment that pl aintiff c ontracted with Miller to have his parents murdered). I n this context, the court reasonably

excluded the Outlaw evidence.

¶ 139 D. Jury I nstruction ¶ 140 Plaintiff’s final argument is that the trial court erred in g ivi ng the ju

ry in struction on malice. He concedes that he failed to preserve this issue for review and asks t

hat we a ddress it only if we re mand the c ause

for a new trial. Given that we are not re manding the cause for a new trial, because we

have rejected plaintiff’s claims co ncerning the ev identiar y r ulings, we need not addre ss this arg

ument.

¶ 141 II I. CONCL

USION ¶ 142 For

the fore goin g reasons, the judgmen t of the c ircuit co

urt of Mc Henry

County is affirmed. ¶ 143 Affirmed.