ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

JOSEPH TRZECIAK, Defendant-Appellant.

 District & No. First District, Third Division

Docket No. 1-10-0259

Opinion filed

Opinion withdrawn

Opinion filed

Rehearing denied

April 25, 2012

May 7, 2012

May 9, 2012

May 24, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where the testimony of defendant’s wife about defendant’s jealousy and

abusive conduct contributed to his conviction for the first degree murder

of a man defendant believed was having a relationship with his wife,

defendant’s conviction was reversed and the cause was remanded for a

new trial, since the testimony should have been excluded under the

marital privilege, its admission was not harmless, in that, without that

testimony, there was limited evidence to support defendant’s conviction,

and defendant was deprived of a fair trial.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05-CR-28283; the

Hon. Angela M. Petrone, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and

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

Panel JUSTICE SALONE delivered the judgment of the court, with opinion.

Presiding Justice Steele concurred in the judgment and opinion.

Justice Murphy dissented, with opinion.

OPINION

¶ 1 Following a jury trial, defendant Joseph Trzeciak was convicted of first degree murder

for killing Donald Kasavich with a firearm. Defendant was sentenced to 90 years’

imprisonment consisting of 50 years for murdering Kasavich and a 40-year enhancement for

the use of a firearm in the commission of the murder. The trial court further ordered

defendant’s sentence to run consecutive to a 10-year sentence imposed following his

conviction for violating federal firearms laws. On appeal, defendant raises seven claims of

error, arguing: (1) that the trial court erred in admitting testimony which should have been

excluded as marital privilege; (2) that the trial court erred in admitting evidence regarding

defendant’s domestic abuse of his wife; (3) that the trial court erred in admitting evidence

regarding defendant’s flight; (4) that the trial court erred in refusing to allow a defense

witness to testify regarding his knowledge of the alleged murder weapon; (5) that the trial

court erred in forcing a venire member to return every day and watch the trial, after he stated

that he could not be impartial; (6) that the State failed to prove beyond a reasonable doubt

that he murdered Donald Kasavich; and (7) that defendant’s sentence was excessive. For the

reasons that follow, we reverse defendant’s conviction and remand this matter for a new trial.

¶ 2 BACKGROUND1

¶ 3 Defendant was charged with murderingDonald Kasavich with a firearm. Kellee O’Nions

discovered the dead body of Donald Kasavich in his Chicago trailer on June 29, 2004.

O’Nions, who lived with Kasavich from time to time, arrived at the trailer in the evening to

find the trailer in disarray and Kasavich dead, lying on his back. Police investigators noted

broken glass on a shed outside of the trailer with blood on it. DNA testing later revealed that

The facts addressed herein are limited to those relevant to our decision to reverse 1

defendant’s conviction and remand this case for a new trial and do not address all of the facts

relevant to defendant’s nondispositive claims on appeal.

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the blood recovered from the window belonged to defendant. Inside the house the police

recovered one fired .40-caliber Smith & Wesson bullet and three spent cartridges of the same

caliber. Kasavich suffered three gunshot wounds to the head and had bruises to his hands,

arms and legs. The medical examiner recovered one .40-caliber bullet from Kasavich’s brain,

along with several bullet fragments.

¶ 4 Prior to trial defendant filed several motions in limine requesting the exclusion of various

pieces of physical and testimonial evidence. Forthe limited purposes of this appeal, we focus

on defendant’s motion to exclude testimony by his wife regarding communications between

the two on the basis of marital privilege. After argument the trial court granted defendant’s

motion in part and denied it in part. Specifically, the trial court stated:

“In Illinois, as in other states, the intent of marital privilege is to protect the sanctity

of the marriage and to promote harmony between spouses. In this case, the marriage was

in shambles. There was no harmony to protect. It is alleged there was a continuous

pattern by defendant of violence towards his wife since the very beginning of their

marriage, including beating her several times a week, kicking her while wearing boots,

threatening her with guns and knives, tying her up and locking her in their home.

* * *

It is alleged defendant was committing violent behavior upon his wife, beating her

and intimidating her with a firearm while he was making the contested threats to kill both

her and Kasavich. The defendant’s actions and statements are intertwined and cannot be

separated without keeping highly probative evidence from the trier of fact. I do not

believe that the Legislature of Illinois intended to protect the type of spousal abuse

alleged here and to keep action and communications committed during such abuse

privileged.

The exclusion of the testimony of defendant’s wife would be far more likely to

frustrate justice than to promote marital harmony. The evidence also goes to the

defendant’s motive to kill Kasavich because defendant’s wife allegedly turned to

Kasavich for help in escaping from defendant. It suggests defendant did not intend the

threats to be confidential. That he wanted his wife to convey them to Kasavich in order

to convince Kasavich to stay way [sic] from her, and to dissuade Kasavich from helping

her escape from defendant. It suggests the defendant himself was relying upon the fear

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

to achieve these goals.

Therefore, defendant’s wife may testify as to what she told Detective Butler during

their conversation on July 20, 2004, which is the following: In April 2004, defendant

threatened to kill Laura. Defendant tied her up, beat her, threw her in his pickup truck,

had a gun, drove her to Donald Kasavich’s trailer, pointed at the trailer and said he’d kill

Kasavich and her, and then cut off Kasavich’s dick and stick it in her mouth. She and

defendant were both outside the trailer for a few minutes, then defendant drove her back

to their home. Defendant continued to beat her to get her to confess. She had plans to

leave with Kasavich. End of what she may testify to.”

¶ 5 The court went on to exclude testimony regarding statements made by defendant to his

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wife where she could not recall the date, and statements where defendant did not reference

the victim. Defense counsel renewed their objection to all of the statements made by

defendant to his wife and asked the trial court to reconsider its ruling. In denying the motion

to reconsider, the trial court stated:

“I will just note though that the defense is correct that the defendant was not charged

with committing crimes against his spouse while the statement in question was being

made by defendant, but I found that he was committing crimes against his spouse. That

was the allegation anyway that will have to be testified to in court.

* * *

A crime was being committed against her when the statement that I read was

allegedly said. That statement will not be allowed to be testified to unless Laura testifies

to the abuse first.”

¶ 6 During the voir dire one of the venire members explained to the trial court that he would

find it difficult to be unbiased because of a family member’s experience in the criminal

justice system. Before the entire venire, the trial court refused to excuse the venire person

and ordered him to attend every day of the trial as an observer and observe “how a fair trial

operates.” The trial court denied his motion and defendant proceeded to trial wherein the

State presented several witnesses against defendant.

¶ 7 Trial Testimony

¶ 8 O’Nions testified that she accompanied the victim on June 25, 2004, when he visited

Richard Roethler in Hammond, Indiana, and the victim agreed to buy a car from Roethler in

exchange for a combination of money and cocaine. On June 26, 2004, O’Nions and the

victim went to Pennsylvania and left the car at the victim’s trailer. When they returned on

June 28, 2004, the car was gone. The next morning O’Nions and the victim went to

Roethler’s house, where they learned that Roethler had taken the car back. O’Nions

overheard the victim and Roethler arguing about the car and the cocaine. The victim left and

O’Nions left some time thereafter, and she returned to the victim’s trailer 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

defendant and that she knew the victim had bought crack cocaine from defendant in the past.

Roethler was interviewed byDetective Kevin Eberle, of the Chicago police department, who

concluded that he was not a suspect in the homicide.

¶ 9 Patricia Madigan testified that she knew defendant because he had sold her crack in the

past. She also testified that on June 29, 2004, she called defendant to purchase crack from

him. They made arrangements to meet at the intersection of 129th Street and Commercial

Avenue, between 1:30 and 2 p.m. that day. Madigan stated that defendant failed to show at

their designated meeting place, and when she called and spoke to him the second time he

agreed to meet her at 4 p.m. that day at the same intersection. When she saw defendant at 4

p.m., his arm was bandaged and he explained that he had been involved in a police chase

with the Hammond police department and cut himself on the glass of his truck. She recalls

defendant asking her if she heard anything about a murder, and when she responded that she

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had not, the two went and made a drug delivery. They then picked up his daughter and he

asked his daughter if she had heard anything about a murder in a trailer park. Defendant’s

daughter responded that she had not, and the three of them went to defendant’s house and ate

dinner.

¶ 10 Defendant then packed a bag and went to Michael Lesko’s house with Madigan.

Defendant was driving Lesko’s car and Madigan was familiar with Lesko because she had

smoked crack at his house before. Once at Lesko’s house defendant asked Madigan to wash

his clothes and give him a haircut, which she did. After using drugs that defendant provided

her, Madigan and defendant returned to his house in Lesko’s car. They approached his house

from the alley and defendant entered his house alone from the back. When he returned to the

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

one rifle and possibly more guns. Thereafter defendant drove with a pistol on his lap, while

he threw bullets out the window. Eventually, they arrived at a landfill and defendant gave

Madigan crack cocaine to smoke and told her to wait in the car. Defendant then walked to

the Calumet River and Madigan heard a splash. When defendant returned he did not have the

gun that was previously in his lap.

¶ 11 Defendant then took Madigan to an empty baseball field and left her there for

approximately 10 minutes before he returned and the two went to the house of their mutual

friend, Daniel Barnas. Once they arrived at Barnas’ house, Madigan smoked crack in the

basement, while defendant and Barnas spoke privately. She overheard defendant ask Barnas’

permission to leave some things at his house. Then defendant brought the bundled contents

into Barnas’ house. Madigan could not identify what was in the blankets. After smoking

more crack in Barnas’ basement, Madigan and defendant returned to Lesko’s home. When

Madigan awoke in the morning, defendant was gone and so was Lesko’s car. On July 28,

Madigan contacted the Chicago police after learning of Kasavich’s murder and recounted

these events in a handwritten statement.

¶ 12 Laura Nilsen testified that she was the estranged wife of defendant. She stated that she

knew the victim, and used to live with him, but denied ever having a sexual or romantic

relationship with him. Nilsen admitted that she used to smoke crack with the victim and

knew defendant as one of the victim’s crack dealers. Nilsen testified that she and defendant

began dating in November 2003 and were married January 16, 2004. She testified that during

their marriage defendant beat her on a regular basis. He also supplied her with crack cocaine

to support her daily drug habit. Defendant would beat her and often accuse her of having

extramarital affairs with other men, including the victim, and he would attempt to force her

to admit that she was having an affair through physical violence.

¶ 13 Nilsen testified that defendant beat her with his fists, his feet while wearing work boots,

and a pistol, a photo of which she identified and was confirmed to be the murder weapon.

She testified that defendant would tie her up using duct tape or rope and hit her with the gun.

On several occasions he tied her up and left her that way while he left the house. The house

was described as having multiple deadbolt locks on the doors, with keys required to open it

from either side. There were also security cameras and a tall privacy fence in the back yard.

The windows were tinted and the curtains were usually closed. Defendant would lock her in

their bedroom or closets after physically abusing her.

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¶ 14 Nilsen testified that one night in April 2004, she received a phone call and defendant

became irate. She said that when she would receive phone calls defendant would often

become jealous and violent. That night he beat and hogtied Nilsen with duct tape and put her

in his truck. Once inside the truck, he drove Nilsen to the victim’s trailer while continuing

to beat her and accusing her of planning to leave him for the victim. She testified that she

saw he had a gun with him. After they arrived at the victim’s trailer defendant told her that

he was going to kill her and the victim, cut his penis off and shove it into her mouth.

Defendant then knocked on the victim’s trailer door, but his knocks went unanswered.

Thereafter, he returned to his truck and drove himself and Nilsen home. Defendant continued

to abuse her and threaten her with the pistol while accusing her of cheating.

¶ 15 Nilsen went on to testify that on the evening of June 24, 2004, she received a telephone

call from her sister and defendant began to beat her while she was on the phone. She quickly

hung up the phone and tried to keep herself from crying while on the phone. Eventually

defendant stopped and left the house. In the early hours of June 25, 2004, the police arrived

at their house and Nilsen took the opportunity to escape, realizing that defendant had not

taken her house keys from her, as he often did. That day she was taken to the police station

in Hammond, Indiana, and interview and photographed. The photographs showed bruises on

her face, arms, legs and back. After being interviewed and photographed she was taken to

a hospital, where she was treated and released. She testified that she never saw defendant

again after that day and went into hiding to avoid him. The photos of Nilsen’s facial, arm and

leg bruises were published to the jury.

¶ 16 Nilsen was also shown a photograph of the pistol confirmed by ballistics testing to be the

murder weapon. She testified that the gun in the photo was the gun that defendant used to

threaten her and beat her. She did not know the make or model of the gun, but testified that

she knew that was the gun defendant kept with him “all the time.” She was then shown a

photo array of multiple similar model weapons and she stated that she was sure none of them

was the gun defendant kept. She could not identify which of the guns in the photo were the

same make and model as the gun defendant carried. She admitted telling the police about

how defendant abused her, but not about his threats to the victim on the day they arrived at

her house. A warrant was issued for defendant’s arrest on charges of domestic battery.

¶ 17 On July 22, 2004, defendant was observed by Hammond police officer Matthew Porter

leaving his Hammond, Indiana, home and parking at a nearby gas station. When the officer

began calling in his location, defendant returned to his vehicle and sped away. Officer Porter

turned on his lights and siren in an attempt to curb the vehicle, but defendant did not stop.

After driving through several alleys and streets, defendant drove through the fence of a little

league field and into Chicago. Officer Porter was ordered by his superiors to return to

Hammond and not pursue defendant any further into Chicago. Defendant’s vehicle was later

recovered.

¶ 18 On July 26, 2004, Officer Porter observed a van pull into defendant’s driveway. The van

had a female driver and defendant was in the passenger’s seat. Officer Porter ordered the

occupants to stay in the vehicle and he called for back up. Defendant opened his passenger

door and began yelling, “What’s the problem?” to the officer. Defendant then appeared at the

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

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around, keeping the female driver between him and the officer before running into the house.

SWAT officers arrived and a standoff ensued. Defendant eventuallysurrendered onceSWAT

officers entered his house and deployed a flash-bang grenade. Federal and local law

enforcement performed a search of defendant’s home and recovered a .45-caliber handgun,

but no drugs or large amounts of money were recovered.

¶ 19 A search of defendant’s mother’s home in Chicago yielded no evidence of illegal activity.

Daniel Barnas’ home was also searched, followingBarnas’ consent. There officersrecovered

a .40-caliber Glock handgun under a dresser in Barnas’ bedroom; they also recovered a rifle

under the stairs near the kitchen and a prescription bottle bearing the victim’s name from a

cabinet in Barnas’ basement. The Glock was then taken into custody by federal agents and

tested by the Illinois State Police crime lab. It was matched as the weapon used in the

murder. After being tested, the weapon was returned to federal authorities and eventually

destroyed, following defendant’s conviction for federal gun charges. Additional physical

evidence tested included fingernail scrapings under the victim’s fingernails. The DNAtesting

of those scrapings excluded defendant and Roethler as contributors but could not exclude the

victim.

¶ 20 Defendant called John Riggio, manager of a south suburban gun shop, to testify. He

stated that he had bought, sold and traded guns since 1967. He testified that he was familiar

with the size, shape and appearance of Glock pistols after having seen thousands of them.

He testified that the .40-caliber Glock pistol and 9-millimeter Glock pistol have the identical

body and frame. Defendant did not testify and the jury returned a verdict of guilty on all

counts.

¶ 21 On appeal, defendant challenges several portions of the trial, including pretrial motions

and jury selection. Because we find reversible error in the trial court’s ruling on marital

privilege testimony, we begin our analysis with defendant’s claim of error regarding the

privileged communications.

¶ 22 ANALYSIS

¶ 23 Defendant contends that his conduct and his statement to his wife made in private should

not have been admitted as evidence. The State responds that it was within the sound

discretion of the trial court to determine the admissibility of that testimony and the trial

court’s reasoning shows that it did not abuse that discretion. We review the decision to admit

or exclude evidence for an abuse of discretion and will not overturn that decision absent a

showing of abuse of that discretion. People v. Gibson, 205 Ill. App. 3d 361, 369 (1990).

¶ 24 Section 115-16 of the Code of Criminal Procedure of 1963 prohibits testimony “as to any

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

between them duringmarriage” with limited exception regarding offenses against each other,

spousal abandonment and offense against children. 725 ILCS 5/115-16 (West 2006). In

Illinois, unless there is evidence to the contrary, there is a presumption that interspousal

communications are intended to be confidential. People v. Sanders, 99 Ill. 2d 262, 267

(1983). Acts as well as statements are regarded as communications for the purposes of

marital privilege. People v. Burton, 6 Ill. App. 3d 879, 887 (1972).

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¶ 25 Here, the evidence at trial showed that defendant violently abused Nilsen and made

threatening statements in the confines of their home. The record furthershows that defendant

restrained Nilsen and locked her inside their house as part of his ongoing abuse of her.

¶ 26 Initially, we note that none of the exceptions noted in the statute are applicable in this

case. There were no children involved in this case. Defendant was not charged in Illinois for

his domestic battery of his wife, nor was there a claim of spousal abandonment against him.

Indeed, the record reflects that Nilsen left defendant, once she felt safe to do so. Thus, under

Illinois law, the presumption that the interspousal communications between them are

privileged should apply. We note that the case law which the trial court relied on in reaching

the conclusion that this communication was not what the Illinois legislature intended to

protect as privileged was exclusively from outside Illinois. We disagree.

¶ 27 As our supreme court recently stated, “[u]nless the language of the statute is ambiguous,

this court should not resort to further aids of statutory construction and must apply the

language as written.” People v. Young, 2011 IL 111886, ¶ 11. In addition, our supreme court

explained in Sanders that “[t]he expansion of existing testimonial privileges and acceptance

of new ones involves the balancing of public policies which should be left to the legislature.”

Sanders, 99 Ill. 2d at 271. As indicated above, there is no “bad marriage” exception to

marital privilege. Indeed, the legislature is aware of the terrible circumstances surrounding

domestic violence in a marriage, as indicated by the exception to spousal privilege where one

spouse is charged with domestic violence against the other. 725 ILCS 5/115-16 (West 2010).

Even with the legislature being keenly aware of the problem of domestic violence, it created

no “bad marriage” exception.

¶ 28 Here, we find no ambiguity in the language of the statute. The statute is prohibitive of

testimony regarding communications and admissions made as to “any conversation between

them during the marriage.” It is undisputed that the communications had between Nilsen and

defendant were during their marriage and were made privately. While we recognize that the

marriage between defendant and Nilsen was not harmonious, the legislature did not see fit

to require marital harmony be present in order to preserve the privilege.

¶ 29 The plain language of the statute, our supreme court’s general instructions regarding

statutory interpretation, and our supreme court’s instructions regarding this statute

specifically limit the available exceptions to the statutory privilege to those enumerated by

the legislature. Thus, the trial court should have applied the law and excluded the evidence

of abuse and defendant’s threats against Nilsen and the victim. Under these circumstances,

we find that the trial court abused its discretion by admitting the testimony regarding the

privileged statements.

¶ 30 In Illinois, the admission of evidence in violation of marital privilege deprives defendant

of a fair trial where it contributes to a guilty verdict. People v. Murphy, 241 Ill. App. 3d 918,

925 (1992). Here, the record clearly establishes that Nilsen’s testimony regarding the abuse

and defendant’s statements to her contributed to defendant being found guilty. The evidence

at trial was that days before the victim’s murder, the victim was arguing with another man

over being dispossessed of his vehicle. Moreover, the murder weapon and the victim’s

prescriptions were found in another man’s home. Absent Nilsen’s testimony regarding

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defendant’s statements of jealousy of her relationship with the victim, along with his threats

against her and the victim, there is limited evidence to support defendant’s murder

conviction. We find that Nilsen’s testimony regarding defendant’s motive for killing

Kasavich contributed to his conviction. Thus, the admission of that testimony was not

harmless where it denied defendant a fair trial. People v. Muzard, 210 Ill. App. 3d 200, 212

(1991).

¶ 31 Accordingly, we need not address the remainder of defendant’s claims of error. Instead,

we reverse and remand this matter for a new trial consistent with our ruling.

¶ 32 Reversed and remanded.

¶ 33 JUSTICE MURPHY, dissenting:

¶ 34 I respectfully dissent. I disagree with the majority that the trial court erred in admitting

defendant’s statements to his wife and conduct toward her into evidence. I do not believe

there was any intention for the statement or actions to remain private. Nor do I find that the

actions and statements by defendant fall within the scope of protections of the marital

privilege or the public policy supporting the legislature’s intent in enacting that provision.

¶ 35 As addressed by the majority, section 115-16 of the Code of Criminal Procedure of 1963

(725 ILCS 5/115-16 (West 2010)) prohibits testimony by a spouse regarding communication

or admission made by one spouse to the other during marriage. I understand the majority’s

difficulty with the trial court’s analysis, particularly its reliance on case law from foreign

jurisdictions in support of its conclusion that defendant’s statements fell outside of the

marital privilege. This case falls within an area with sparse authority, but I believe that the

facts of this case support the trial court. Further, beyond the foreign cases cited by the trial

court, review of the relevant statutory provisions and our courts’ discussion of this issue

supports the trial court’s finding.

¶ 36 I believe that our supreme court’s discussion of the marital privilege in People v.

Sanders, 99 Ill. 2d 262, 270 (1983), is instructive to how we should consider the privilege

itself, legislative intent and policy, and foreign case law in interpreting the reach of the

privilege and any exception. Noting that the marital privilege results from a policy not of

safeguarding the quality of evidence at trial, but from a policy of promoting family harmony,

the Sanders court quoted the United States Supreme Court:

“ ‘Testimonial exclusionaryrules and privileges contravene the fundamental principle

that “ ‘the public ... has a right to every man’s evidence.’ ” [Citation.] As such, theymust

be strictly construed and accepted “only to the very limited extent that permitting a

refusal to testify or excluding relevant evidence has a public good transcending the

normally predominant principle of utilizing all rational means for ascertaining truth.”

[Citation.]’ ” Id. (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).

¶ 37 In Sanders, the court declined to extend any privilege to conversations between parent

and child. The court noted that the source of all privileges in Illinois, with the exception of

the attorney-client privilege, was statutory and adding a privilege should be done by the

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legislature, following a balancing of public policies. Id. at 270-71. Therefore, the court

rejected defendant’s argument it should apply the privilege to include the child. The court

did conclude that, despite the presumption that interspousal communications are intended

to be confidential, the fact that one of the conversations between the married couple occurred

in front of their child led to the conclusion that it was not intended to be confidential and,

therefore, was not protected by the privilege. Id. at 270.

¶ 38 I find that the facts support the trial court’s refusal to apply the marital privilege in this

instance. Despite the presumption of confidentiality under People v. Murphy, 241 Ill. App.

3d 918, 924 (1992), defendant’s actions and words that he claims were improperly admitted,

at their core, demonstrate that he did not intend they remain confidential. According to the

testimony at trial, defendant beat Nilsen, taped her up, removed her from a private setting and

put her in his truck, then drove to the victim’s home, voiced his threats toward Nilsen and

the victim, then left the truck and banged on the victim’s door.

¶ 39 I agree with the State that these actions demonstrate defendant’s plain desire that his

thoughts, and threats, not remain confidential to overcome that presumption. This behavior

deviated from the evidence of defendant’s other beatings of Nilsen and demonstrated his

desire to make his sentiments known to the victim. Strictly construing the privilege as

discussed in Sanders, I would hold that the trial court properly determined that this exchange

falls outside the parameters of the marital privilege and correctly allowed Nilsen’s testimony

on motive.

¶ 40 Since I also concur with the trial court’s analysis of this issue, I would add that this case

exemplifies the need to revisit the provisions of section 115-16 of the Code of Criminal

Procedure of 1963. The majority notes that in this case, there were no children involved, no

charges of domestic battery and no claim of spousal abandonment. In fact, the majority

points out that once she felt safe to leave defendant, Nilsen safely moved away from

defendant. Because of these facts, the majority reasons that the stated exceptions to the

marital privilege were not met and the statements by defendant were protected by the

privilege.

¶ 41 However, implicit in this statement is acceptance that the very reason for the creation of

the privilege did not exist here–there clearlywas no marital harmonyto protect. While it does

not appear that defendant faced domestic abuse charges in Illinois, the record indicates that

a domestic battery arrest warrant had been issued in Hammond, Indiana, related to his abuse

of Nilsen. Further, the concern supporting the privilege that a spouse will be forced to testify

against a spouse is obviously not of issue in this case.

¶ 42 Ample support is evident from other evidentiary provisions as well as the general policy

espoused elsewhere by the legislature concerning the need to prevent domestic violence to

provide guidance in defining the exclusion to the marital privilege. For example, the

physician-patient privilege and exceptions provided by statute specifically exclude

information “in trials for homicide when the disclosure relates directly to the fact or

immediate circumstances of the homicide.” 735 ILCS 5/8-802 (West 2010). This privilege

similarly serves the purpose of ensuring a free and open exchange between two people while

excluding certain information that, if kept confidential would protect the key policy interest

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in preventing homicide. Defendant’s behavior certainly is not to be protected and excluding

testimony concerning that behavior would frustrate the interests of justice.

¶ 43 This is a troublesome case in that the facts cry out to enable the battered wife to testify

as to her husband’s motive. The trial court understood this and ably screened the proposed

testimony, allowing in only evidence as to motive. I look particularly at the incident where

defendant beat his wife, bound her with duct tape, took her outside and placed her in his

truck and then drove to the victim’s trailer where he got out and pounded on the victim’s

door. This was done in public, in plain sight. By these actions defendant waived the marital

privilege. While I find reason to affirm the trial court, I also would encourage an additional

exception in section 115-16 for homicide cases where a spouse voluntarily testifies.

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