## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Trzeciak , 2012 IL App (1st) 100259

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J OSEPH TRZECIAK, De fenda nt-Appellant.

District & N o. First District, Third Division Docke t No. 1-10-0259

Opinion filed Opinion withdrawn Opinion filed Rehea ringdenied April 25, 2012

May 7, 2012 May 9, 2012 May 24, 2012

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where the testimony of defe ndant’s wife about defe ndant’s jealousy and abusive conduct contributed to his conviction for the first degree murder of a man defe ndant believed was having a relationship with h i s wi fe, defe ndant’s conviction was reve rsed and t h e cause was rema nded for a

n ew t rial, since the testimony should have been excluded under the marit al privileg e, its admission was not harmless, in that, without that testimony
, there was limit ed evidenc e to support defe ndant’s conviction, and def endant wa s deprived of

a fa ir trial.

Dec ision Under Review Appea l from the Circui t C o urt of Cook County
, No. 05-CR-28283; the Hon. Ang ela M. Petrone , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and J ennife r L

. Bontra g er, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Peter D. Fische r, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE SAL ONE de livered the judgme nt of the cour t, with opinion. Presiding Justice Steele conc urre d in the judgme nt and opinion.
J ustice Murphy

dissented, with opinion.

OP INION

¶ 1 Followinga jury trial, defe ndant J oseph Trzec iak was convicted of first degreemurder for killing Donald Kasavich wi th a firea rm. Def endant was sentenc ed to 90 y ear s’ imprisonment consisting of 50 y ear s for murdering Kasavich and a 40-year enhanc ement for the use of a firea

rm in the commission of t h e m u rd er

. The trial court further order ed d ef endant’s sentenc e to run consec utive to a 10-year sentenc e imposed following his conviction for violating fede ral firea rms laws. On a

ppeal, de fenda

nt raises seven claims of

err or, ar guing: ( 1) that the trial court err ed in admit ting testimony which should have been excluded as m arital privilege ; (2) that the t rial court err ed in admitting evidence reg arding defe ndant’s domesti c abuse of hi s wife; (3 ) that the t rial court err ed in admitting evidence
reg arding defe ndant’s fl i gh t ; (4 ) that the trial court err ed in ref using to allow a defe nse witness to testify reg arding his knowledg e of the a l l ege d m u rder wea pon; (5) that the t rial
court err ed in forc ing a venire member to return ever y day and watch the trial, afte r he stated that he could not be impartial; (6) that the S tate failed to prove beyond a re asonable doubt that he murdere d Donald Kasavich; and (7) that defe ndant’s sentenc e was excessive. For the

rea sons that follow, we reve rse defe ndant’s conviction and rema nd this matter for a new trial.

¶ 2 BA CKGROUND 1 ¶ 3 Def

endant was char g ed with murdering Donald Kasavich with a firea rm. Kellee O’N ions d i s covered the dead body of Donald Kasavich in his Chicag o trailer on J une 29, 2 0 0 4

. O’Nions, who lived with Kasavich from time to time, arr ived at the trailer in the evening to find the trailer

in disarra y and Kasavich dead, lying on his ba ck. Police investigators noted broken g lass on a shed outside of the trailer with blood on it. DNA testing later reve aled that

T he fa ct s ad d r e s s e d her ei n ar e li m it ed to tho se re le vant to our dec is ion to re verse 1 d e f end ant ’s con victi on and re m and thi s cas e for a new tr ia l and do not add re ss al l of the fa c t s

re le vant t o de fe nda nt’ s no ndi spo si ti ve cla ims on appe al

.
-2-the blood rec overe d from the window belong ed to d ef endant. Inside the house the police

rec overe d one fired .40-ca liber Smit h & Wesson bullet and three spent car tridg es of the same caliber

. Kasavich s uffe red three gunshot wounds to t h e head and had bruises t o his hands,

arms and leg s. The medical examiner re c o v e r ed one .40-ca liber bullet from Kasavich’s brain, alongwith severa l bullet fragments. ¶ 4 Prior to trial defe ndant filed sever al motions in limine reque sting the exclusion of various piece s of phy sical and testimonial evidenc e. For the limit ed purposes of this appea l, we focus

on defe ndant’s motion to exclude testimony by his wife reg arding communications betwee n the two on the basis of marital privileg e. After argument the trial court grante d defe ndant’s motion in part and denied it in part. Spec ifically , the trial cour t stated:
“In I llinois
, as in other states, the intent of marital privileg e is to protec t the sanctity of the marria g e and to promote harmony betwee n spouses. In this case , the marria g e was in shambles

. There was no harmony to protec t. It is alleg ed there was a continuous pattern b y defe ndant of violence towards his wife since the very beg inning of their marria g e, including beating her sever al times a wee k, kicking her while wea ring boots, threateningher w ith guns a nd knives, tying he r up and loc king he r in their home.
* * *
It is alleg ed defenda

nt was commit ting violent behavior upon his wife, beating her and intimi dating her with a firea rm while he was making the contested threa ts to kill both her and Kasavich. The defe ndant’s actions and statements are intertwined and cannot be

s ep arated without keeping highly probative evidenc e from the trier of fac t. I do no t believe that the L egi s l at u re of I llinois intended to protec t the ty pe of spousal abuse alleg ed here and to keep action and communications committed during s u ch abuse privileg ed. The exclusion of the testimony o f d ef en d ant’s wife would be far more likely to frustrate ju s t i ce t h an to promote marital harmony

. The evidenc e also g oes to the defe ndant’s motive to kill Kasavich beca use defe nd ant’s wife alleg edly turned to Kasavich for help in esca ping from defendant. I t sug g ests defe ndant di d not intend the threats to be confide ntial. T hat he wanted his wife to convey them to Kasavich in or der
to convince Kasavich to stay way [ sic ] from her, and to dissuade Kasavich from helping her e scape from def

endant. It sugg ests the def endant himself wa s rely

ing upon the fea

r produce d by such threats rathe r than upon any confide ntial r elationship of the marria g e to achieve these g oals.
There fore , defe ndant’s wife may testify as to what she told De tective Butler during their conver sation on J uly 20, 20 0 4
, whi ch is the following : In April 2004, defe ndant threatened to kill L aura

. Def endant tied her up, beat her , threw he r in his pickup truck, had a gun, drove her to Donald Kasavich’s trailer, pointed at the trailer and said he’d kill Kasavich and her, and then cut off Kasavich’s d i ck an d s t i ck it in her mouth. She and defe ndant wer e both outside the trailer for a few minutes, then defe ndant drove her back
to their home. Def

endant continued to b eat her to g et her to confe ss. She had plans to leave with Kasavic h. End of what she may testify to.” ¶ 5 The court went on to e x clude testimony reg arding statements made by defe ndant to his

-3-wife wher e she could not r eca ll the date, and statements wher e defe ndant did not ref ere nce the victim. Def

ense counsel rene we d t h ei r objection to all of the statements made by defe ndant to his wife and asked the trial court to rec onsider its ruling

. In denying the motion
to rec onsider, the tria l court stated:
“I will just note though that the defe nse is corr ect that the defe ndant was not char g ed with committing crimes ag ainst his s p o u se while the statement in question was being made by defe ndant, but I found that he was committing crimes ag ainst his spouse. That was the a lleg ation any

way that will have to be testified to in cour t. * * *
A crime was being committed ag ainst her when the statement that I rea d was alleg edly said. That statement will not be allowed to be testified to unless L aura testifies to the abuse f

irst.” ¶ 6 During the voir dire one of the venire members explained to the trial court that he would find it difficult to be unbiased beca use of a family mem b er ’s experience in the criminal justice sy stem. Be fore the entire venire
, the trial court ref used to excuse the venire person and order ed him to attend ever y day of the trial as an observe r and observe “how a fair trial
operates.” The tr i al court denied his motion and defe ndant proce eded to trial wher ein the State prese nted seve ral witnesse s ag ainst defe ndant.

¶ 7 Trial Te stimony ¶ 8 O’Nions testified that she acc ompanied t h e v i ct i m on J une 25, 2004, when he visited Richard Roethler in Hammond, Indiana, and the victim agree d to buy a car from Roethler in exchang e fo r a co m b ination of money and coca ine. On J une 26, 2004, O’Nions and the victim went to P en n s ylvania and left t he car at the vi ctim’s trailer. When they returne d on J une 28, 2004, the car was g one. The next morning O’Nions and the victim went to Roethler’s house, wher e they lear ned that Roethler had taken the car back. O’Nions overhe ard the victim and Roethler arguing about the car and the coca ine. The victim left and O’Nions left some time the rea fter, and she returne d to the victim’s tr ailer at approximately 1 p.m. O’Nions and the victim argued and he asked her to leave
, which she did. At the time she left, the victim had no injuries and the trailer was intact. O’Nions testified that she knew defe ndant and that she knew the victim had boug ht cra ck coca ine from defe ndant in the past. Roethler was interviewe d by Detec tive Kevin Eberle
, of the Chicag o police depar tment, who conclude d that he wa s not a suspect in the homicide. ¶ 9 Patricia Madig an testified that she knew defe ndant beca use he had sold her cra ck in the past. She also testified t hat on J une 29, 2004, she called defe ndant t o purcha se crack from him. They made arr ang ements to meet at the intersec tion of 129th Street and Commercial Avenue
, betwee n 1:30 and 2 p.m. that day

. Madig an stated that defe ndant failed to show at their desig nated meeting place
, and when she called and spo k e to him the second time he
agree d to meet her at 4 p.m. that day at the same intersec tion. When she saw defe ndant at 4
p.m., his arm was bandag ed and he explained that he had been involved in a police chase with the Hammond police depar tment a nd cut himself on the g lass of his truc k. She rec alls defe ndant asking her if she hear d any thing about a murder, and when she responde d that she

-4-had not, the two went and made a drug delivery

. They then picked up his daughter and he

aske d h i s d aughter if she had hear d any thing about a murder i n a trailer park. Def endant’ s daughter responde d that she had not, and the three of them went to defe ndant’s house and ate dinner. ¶ 10 Def

endant then packe d a bag and went to M i ch ae l L es k o ’s h o u s e wi t h Madig an. Def endant wa s driving L esko’s c ar a nd Madig an wa s familiar with L esko because she had smoked cra ck at his house befor e. Once at L esko’s house defe ndant asked Madig an to wash his clothes and g ive him a hairc ut, which she did. After using drug s that defe ndant provided her, Madig an and defe ndant returne d to his house in L esko’s car

. They approa ched his house from the alley and defe ndant enter ed his house alone from the back. When he returne d to the

car , Madig an saw him place a bundle in the trunk. She thought the bundle contained at least

one rifle and possibly more guns. There afte r defe ndant drove with a pistol on his lap, while he threw bullets out the window. Eventually
, they arr ived at a l andfill and defe ndant g ave Madig an crac k coca ine t o smoke and tol d her to wait i n the ca r. De fenda

nt then walked to the Calumet River and Madig an hear d a splash. When defe ndant returne d he did not have the
gun that was pre viously

in his lap. ¶ 11 Def

endant then took Madig an to an em p t y b as eb al l fi el d an d l ef t her there for approximately 10 minutes befor e he returne d and the two went to the house of their mutual friend, Daniel Ba

rnas. Once they arr ived at Ba rnas’ house, Madig an smoked cra ck in the baseme nt, while defe ndant and Ba rnas spoke privately

. She overhe ard defe ndant ask Ba rnas’ permission to leave some things at his house. Then defe ndant brought the bundled contents into Ba rnas’ house. Madig an could not identify what was in the blankets. After smoking

more c rac k in B arna s’ baseme nt, Ma diga n and defe ndant returne d to L esko’s home. When Madig an awoke in the morning
, defe ndant was g one and so was L esko’s car

. On J uly 28, Mad i gan co n tacted the Chicag o police afte r lear ning of Kasavich’s murder and rec ounted these e vents in a handwritten statement. ¶ 12 L aura

Nilsen testified that she wa s the estra ng ed wife of defendant. She state d that she knew the victim, and used to live with him, but denied ever having a s ex u al o r romantic relationsh i p with him. Nilsen admitted that she used to smoke cra ck with the victim and knew defe ndant as one of the victim’s cra ck deale rs. Nilsen testified that she and defe ndant beg an dating in November 2003 and wer e marrie d J anuar y 16, 2004. She testified that during their marria g e defe ndant beat her on a regular basis. He also supplied her with cra ck coca ine
to support her daily drug habit. Def endant would beat her and often acc us e her of having extramarital aff

airs with other men, including the victim, and he would attempt to forc e her to admit that she was havingan af fair thr oug h phy sical violence

. ¶ 13 Nilsen testified that defe ndant beat her with his fists, his fee t while wea ring work boots, and a pistol, a photo of which she i denti fi ed and was confirmed to be the murder weapon. She testified that defe ndant would tie her up using duct tape or rope and hit her with the gun. On sever al occa sions he tied her up and left her that way while he left the house. The house

was descr ibed as having multipl e deadbolt locks on the doors, with key s require d to open it from either side. There wer e also secur ity came ras and a tall privac y fenc e in the back y ard. The windows wer e tinted and the curta ins wer e usually closed. Def endant would lock her in their bedr oom or closets af ter phy sically

abusingher.

-5-¶ 14 Ni lsen testified that one night in April 2004, she rec eived a phone call and d ef en d an t beca me irate. She said that when s h e would rec eive phone calls defe ndant would often become jealous and violent. That night he beat and hog tied Nilsen with duct tape and put her in his truck. Once inside the truck, he drove N ilsen to the victim’s trailer while continuing
to beat her and acc using her of planning to leave him for the victim. She testified that she

saw he had a gun with him. After they arr ived at the victim’s tr ailer defe ndant told he r that he was g oing to kill her and the victim, cu t h i s p enis off and shove it into her mouth. Def endant then knocked on the victim’s trailer door, but his knocks went unanswe red. There afte r, he returne d to his truck and drove himself and Nilsen home. Def endant continued to abuse he r and thre aten he r with the pistol while acc using he r of c heating

. ¶ 15 Nilsen went on to testify that on the evening of J une 24, 2004, she rec eived a telephone call from her sister and defe ndant beg an to beat her while she was on the phone. She quickly hung up the phone and tr i ed to keep herse lf from cry ing while on the phone. Eventually defe ndant stopped and left the house. In the ear ly hours of J une 25, 2004, the police arr ived
at their house and Nilsen took t h e opportunity to esca pe, rea liz ing that defe ndant had not taken her house key s from her, as he often did. That day she was taken to the police station in Hammond, Indiana, and interview and photogr aphed. The photogr aphs showed bruises on her face
, arms, l egs and back. After being interviewe d and photogra phed she was taken to

a hospital, wher e she was treated and rele ased. She testified that she never saw defe ndant
ag ain afte r that day and went into hiding to avoid him. The photos of Nilsen’s fac ial, arm and legbruises we re published to the jury

. ¶ 16 Nilsen was also shown a photogr aph of the pistol confirme d by ballistics testing to be the murder weapon. She testified t hat t he gun in the phot o wa s t h e gun that defe ndant us ed to threaten her and beat her. She did not know the make or model of the gun, but testified that sh e kn ew that was the gun defe ndant kept with him “all the time.” She was then shown a photo arr ay of multipl e simil ar model wea pons and she stated that she was sure none of them

was the gun defe ndant kept. She could not identify which of the guns in the photo w ere the

same make and model as the gun defe ndant carried. She admitted telling the police about how defe ndant abused her, but not about his thre ats to the victim on the day they arr ived at her house . A war

rant wa s issued for de fenda nt’s arr est on cha

rg es of domestic ba

ttery

. ¶ 17 On J uly 22, 2004, defe ndant was observe d by Hammond police office r Matthew Porter leaving his Hammond, Indiana, home and parking at a near by g as station. When the office r beg an calling in his location, defe ndant returne d to his vehicle and sped awa y

. Offic er Porter turned on his lights and siren in an attempt to curb the vehicle, but de fenda nt did not stop. After driving throug h sever al alley s and streets, defe ndant drove through the fenc e of a littl e league field and into Chicag o. Offic er Porter was orde re d by his superiors to return to Hammond and not pursue defe ndant any further into Chicag o. Def endant’ s vehicle was later

rec overe d. ¶ 18 On J uly 26, 2004, Offic er Porter observe d a van pull into defe ndant’s drivewa y

. The va n had a fema le driver and defe ndant was in the passeng er’ s seat. Officer Porter order ed the
occupa nts to stay in the vehicle and he called for back up. Def endant opened his pa sseng er door and beg an y elling, “What’s the problem? ” to the office r. Def endant then appea

red at the front of the van, leaning over the hood and pointing a silver pistol at the office r. He moved

-6-around, keeping the fema le driver betwee n him and the office r befor e running into the house.

SW AT office rs arr ived and a standoff ensued. Def endant event

u a lly s u r r e n d e r e d o n c e SWAT officer s en t er ed his house and deployed a flash-ba ng g rena de. Fe dera l and local law enfor ceme nt perf

ormed a sear ch of defe ndant’s home and rec overe d a .45-ca liber handgun, but no drug s or larg e amounts of money wer e re cover ed. ¶ 19 A sear ch of defe n d a nt’ s mother’s home in Chicag o yielded no evidenc e of illega l activity

. Daniel Ba rnas’ home was also sear ched, following Ba rnas’ consent. There offi c e r s r ecove red

a .40-ca liber Glock handgun under a dresse r in Ba rnas’ bedroom; they also rec overe d a rifle under the stairs near the kitchen and a presc ription bottle bearing the victim’s name from a cabine t in Bar

nas’ ba sement. The G lock was then taken into custody by fede ral a g ents and tested by the I llinois State Police crime lab. It was matched as the wea pon used in the murder. After being tested, the wea pon was returne d to fede ral author i t i es an d eventua lly destroyed, following defe ndant’s conviction for fede ral gun char g es. Additional phy sical

e v id e n c e te s te d inc luded fing erna il scra pings under the victim’s fing erna ils. The D NA te s ti n g of those scra

pings excluded defe ndant and Roethler as contributors but could not exclude the victim. ¶ 20 Defendant called J ohn Rigg io, manag er of a south suburban gun shop, to test i fy

. He stated that he had boug ht, sold and trade d guns since 1967. He testified that he was familiar with the s ize, shape and appe ar an ce o f Glock pistols afte r having seen t housands of them. He testified that the .40-ca liber Glock pistol and 9-millim eter Glock pistol have the identical body and fra

me. Def endant did not testify an d t h e j u ry returne d a verdic t of guilty on all
counts. ¶ 21 On appea l, defe ndant challeng es sever al portions of the trial, including pretria l motions and jury sel ection. Be cause we find reve rsible err or in the trial court’s ruling on marital privileg e testimony
, we beg in our analy sis with defe ndant’s claim of err or reg arding the privileg ed communications.

¶ 22 ANALYSI S ¶ 23 Def

endant contends that his conduct and his statement to his wife made in private should
not have been ad m i t ted as evidenc e. The State responds that it was within the sound discretion of the trial court to d et er mine the admissibili ty of that testimony and the trial court’s rea soning shows that it did not abuse that discretion. We revie w the decision to admit

or ex clude evidence for an abuse of discretion and will not overturn that decision absent a showingof abuse of that discre tion. People v . Gibson , 205 I ll. App. 3d 361, 369 (1990). ¶ 24 Section 115-16 of the Code of Criminal Procedur e of 1963 prohibits testimony “as to a ny communication or admission made by either of them to the other or as to a ny conver sation b e tw e e n th e m during marria g e” with limit ed exception reg arding offe nses ag ainst eac h other, spousal abandonme nt and offe nse ag ainst children. 725 I L CS 5/115-1 6 (W est 2006). In I llinois
, unless there is evidenc e to the contra ry , there is a presumption that i n t er s p o usal communications are intended to be confide ntial. People v. Sanders
, 99 I ll. 2d 262, 2 67 (1983). Acts as well as s t at ements are reg arde d as communications for the purposes of marital privileg e. People v . Burton , 6 I ll. App. 3d 879, 887 (1972).

-7-¶ 25 Her e, the evidenc e at trial showed that defe ndant v i o l en t l y ab used Nilsen and made

threatening statements in the confine s of their home. The rec ord further shows that defe ndant
restra ined Nilsen and loc ked her inside their house a s part of his ong oing a buse of he r. ¶ 26 Initially
, we note that none of t h e ex ce ptions noted in the statute are applicable in this

case

. There wer e no children involved in this case

. Def endant was not char g ed in I llinois for his domestic battery of his wife, nor was there a claim of spousal abandonme nt ag ainst him. Indeed, the rec ord ref

lects that Nilsen left defe ndant, once she felt safe to do so. Thus, under I llinois law, the presumption that th e i n t er spousal communications betwee n them are privileg ed should apply

. We note that the case law which the trial court relied on in rea ching the conclusion that this communication wa s not what the I llinois leg islature intended to protec t as privileg ed wa s exclusively from outside I llinois . We disag ree

. ¶ 27 As our supreme court rec ently stated, “[u] nless the languag e of the statute is ambiguous, this court should not resor t to fu rt h er aids of statutory construction and must apply the languag e as written.” People v. Y oung , 2011 I L 111886, ¶ 11. In addition, our supreme court explained in Sanders that “[t] he expansion of exis ting testimonial privileg es and acc eptanc e of new ones involves the balanc ing of public policies which should be left to the leg islature.” Sanders
, 99 I ll. 2d at 271. As indicated above, th er e i s n o “bad marria g e” exception to marital privileg e. Indeed, the leg islature is a war e of the terrible circ umstances surrounding domestic violence in a marria g e, as indicated by the exception to spousal privileg e wher e one spouse is charg ed with domestic violence ag ainst the other. 725 I L CS 5/115-16 (West 2010). Even with the leg islature being keenly awa re of the problem of domestic violence, it cre ated no “bad ma

rriag e” e x ception. ¶ 28 Her e, we find no ambiguity in the l anguag e o f t h e s t atut e. The statute is prohibitive of testimony reg arding communications and admissions made as to “any conver sation betwee n them during the marria g e.” It is undisputed that the communications had betwee n Nilsen and defe ndant wer e during their marria g e and wer e made privately

. Whil e we rec og nize that the marria g e between defenda nt and Nilsen wa s not harmonious, the leg islature did not see f it to require marital har

mony be pre sent in order

to preser ve the pr ivilege

. ¶ 29 The plain languag e of the statute, our supreme co urt ’s gen er al instructions reg arding statutory i n t erpretation, and our supreme court’s instructions reg arding this statute specific ally limit the available exceptions to the statutory privileg e to those enumer ated by the leg islature. Thus, the trial court should ha ve applied the law and excluded the evidenc e of abuse and defe ndant’s threa ts ag ainst Nilsen and the victim. Under these circ umstances,

we find that the trial court abus ed its discretion by admitting the testimony reg arding the privileg ed stateme nts. ¶ 30 In I llinois
, the admission of evidenc e in violation of marital privileg e deprive s defe ndant of a fair trial wher e it contributes to a guilty verdic t. People v. Murphy
, 241 I ll. App. 3d 918, 925 (1992). Her e, the rec ord clea rly establishes that Nilsen’s testimony reg arding the abuse and defe ndant’s statements to her contributed to defe ndant being found guilty

. The evidenc e at t rial was that day s befor e the victim’s murde r, the victim was a rguing w ith another man

over being dispossessed of his vehicle. Moreove r, the murder wea pon and the victim’s
presc riptions wer e found in another man’s home. Absent Nilsen’s testimony regarding

-8-defe ndant’s statements of jealousy of her relationship with the victim, along with his threats

ag ainst her and the victim, there is limit ed evidenc e t o s up p ort defe ndant’s murder conviction. We find that Nilsen’s testimony reg arding defe ndant’s m o t i v e for killing Kasavich contributed to his conviction. Thus, the admission of that testimony wa s not harmless wher e it denied defe ndant a fair trial. People v. Muzard
, 210 I ll. App. 3d 200, 212 (1991). ¶ 31 Acc ording ly
, we need not addre ss the rema inder of defe ndant’s claims of err or. Instead,

we r ever se and r emand this matter f or a ne w trial consistent with our ruling

.

¶ 32 Reverse d and re manded.

¶ 33 J USTI CE MURPHY, dissenting: ¶ 34 Irespe ctfully

dissent. Idisagree with the majority that the trial court err ed in admitting defe ndant’s statements to his wife and conduct toward her into evid ence. I do not believe there was any intention for the statement or actions to rema in private. Nor do I find that the actions and statements by defe ndant fall within the scope of protec tions of the marital privileg e or the public policy supporting the leg islature’s intent in ena ctingthat provision. ¶ 35 As addre ssed by the majority
, section 115-16 of the Code of Criminal Procedur e of 1963 (725 I L CS 5/115-16 (West 2010)) prohibits testimony by a spouse reg arding communication

or admission made by one spouse to the other duringmarria g e. I understand the majority ’s difficulty with the trial court’s analy sis, particula rly its relianc e on case l aw fr o m fore ign jurisdi ct i o n s in support of its conclusion that defe ndant’s statements fell outside of the marital privileg e. This ca se fa lls within an ar ea w ith sparse a uthority , but Ibelieve that the fac ts of this case support the tr ial court. F urther, beyond the fore ign c ases c ited by the trial court, revie w of the rele vant statutory p ro v i s i ons and our courts’ discussion of this issue supports the trial cour

t’s finding

. ¶ 36 I believe that o u r s up re m e co u rt ’s discussion of the marital privileg e in People v

. Sanders
, 99 I ll. 2d 262, 270 (1983), is instructive t o how we should consider the privileg e itself, leg islative intent and policy
, and fore ign case law in interpre ting the rea ch of the privileg e and any ex ce p t i o n

. Noting that the marital privileg e results from a policy not of safe guarding the quality of evidenc e at trial, but from a policy of promoting family harmony
, the Sanders court quoted the United States Supreme Court:

“ ‘ T e s ti mo n ial e xc lu s io n a

r y r u le s a n d p riv il e g e s contravene the fundame ntal principle that “ ‘the public

... has a right to ever y man’s evidenc e.’ ” [C itation.] As such, they must be strictly construed and acc epted “only to the very limit ed extent that permitting a ref usal to testify or excluding rele vant evidenc e has a public g ood transce nding the normally predominant principle of utiliz ing all rational means for asce rtaining truth.” [C itation.] ’ ” Id. (quoting Trammel v. United States , 445 U.S. 40, 50 (1980)). ¶ 37 In Sanders
, the court declined to extend any privileg e to conver sations betwee n pare nt and child. The court noted that the source of all privileg es in I llinois
, with the exception of the attorney-client privileg e, was statutory and addin g a privileg e should be done by the

-9-leg islature, following a balanc ing of public policies. Id. at 270 -7 1

. T h ere fore
, the court

reje cted defenda

nt’s argument it should apply the privi leg e to include the ch i l d

. T he court did conclude that, despite the presumption that interspousal communicati o ns are intended
to be confide ntial, the fac t that one of the conver sations betwee n the marrie d couple occur red i n fr o n t o f t heir child led t o the conclusion that it was not intended to be confidential and, there fore , was not protec ted by the privileg e. Id. at 270. ¶ 38 I find that the fac ts suppor t the trial court’ s ref

usal to a pply the marital privileg e in this instance. Despite the presumption of confide ntiality under People v. Murphy
, 241 I ll. App. 3d 918, 924 (1992), defe ndant’s actions and words that he claims wer e improperly admitted, at their c ore, de monstrate that he did not intend they rema in c onfidential. Acc ordingto the testimony at trial, defe ndant beat Nilsen, taped her up, remove d her from a private setting and put her in his truck, then drove to the vi ctim’s home, voi ced his threats toward Nilsen and the victim, then left the truc k and bang ed on the victim’s door. ¶ 39 I agree with the State that these actions demonstrate defe n d an t ’s p l ai n desire that his thoughts, and threats, not rema in confide ntial to overc ome that presumption. This behavior deviated from the ev i d ence of defe ndant’s other beating s of Nilsen and demonstrated his desire to make his sentiments known to the victim. S t rictly construing the privileg e as discussed in Sanders
, I would hold that the trial court proper ly deter mined that this exchang e falls outside the para

meters of the marital privileg e and corr ectly allowed Nilsen’s testimony on motive. ¶ 40 Since I also concur with the trial court’s analy sis of this issue, I would add that this case exempli fi es the need to revisit the provisions of section 115-16 of the Code of Criminal Procedur e of 1963. The majority notes that in this case , there wer e no children involved, no ch ar ges of domestic battery and no claim of spousal abandonme nt. In fac t, the m aj o ri t y points out that once she felt safe to leave defe ndant, Nilsen safe ly moved awa y from defe ndant. Be cause of these fac ts, the majority rea sons that the stated excep t i o ns to the marital privileg e wer e not met an d t h e statements by defe ndant wer e protec ted by the privileg e. ¶ 41 Howeve r, implicit in this statement is acc eptanc e that the very rea son for the cre ation of the privileg e did not exis t here–there clea rly was no marital harmony to protec t. Whil e it does
not appea r that defe ndant fac ed domestic abuse char g es in I llinois
, the rec ord indicates that

a domestic battery arr est war rant had been issued in Hammond, Indiana, related to his abuse of Nilsen. Fur

ther, the conce rn supporting the privileg e that a spouse will be forc ed to testify
ag ainst a spouse is obviously not of issue in this case. ¶ 42 Ample support is evident from other evidentiar y provisions as well as the g ener al policy espoused elsewhe re by

the leg islature conc erningthe nee d to preve nt dome stic violence to provide gu i d an ce in defining the exclusion to the marital privileg e. For example, the phy sician-patient p ri v ileg e and exceptions provided by statute specific ally exclude information “in tri al s fo r homicide when the disclosure relates direc tly to the fac t or immediate circ umstances of the homicide.” 735 I L CS 5/8-802 (West 2010)

. This pr ivilege simil arly serve s the purpose of ensuring a fre e and open exchang e betwee n two people while excluding cer

tain information that, if kept confide ntial would protec t the key policy interest

-10-in preve nting homicide. Def endant’ s behavior cer

tainly is not to be protec ted and excluding testimony conce rningthat behavior would frustrate the intere sts of justice. ¶ 43 This is a troublesome ca se in that the fac ts cry out to enable the ba

ttered w ife to testify

as to he r husband’ s motive. The trial cour t understood this and ably scre ened the proposed testimony
, allowingin only evidenc e as to motive. I look pa rticularly at the incident wher e defe ndant beat his wife, bound her with duct tape, took her outside and p l aced her in his truck and th en d ro v e to the victim’s trailer wher e he g ot out and pounded on the victim’s door. This was done in public, in plain sight. By these actions defe ndant waived the marital privileg e. Whil e I find rea son to aff irm the trial court, I also would encour ag e an additional exception in section 115-16 for homicide case s where a spouse voluntar ily testifies.

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