## Illinois Official Reports

Supreme Court

People v. Denson , 201 4 IL 11 6231

Caption in Supreme

Court: THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DARREN DENSON, Appellant.

Docket No. 116231

Filed November 20, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) An in limine issue is preserved for review by bringing it to the trial
court’s attention one additional time

— by contemporaneous objection in a civil case or by posttrial motion in a criminal case; and a murder defendant who made no contemporaneous trial objection afte r unsuccessfully responding to the State’s motion in limine to admit statements preserved the issue for review when he subsequently made

a motion for a new trial

— forfeiture theory rejected.

Decision Under

Review Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Timothy Q. Sheldon, Judge, presiding.

Judgment Affirmed.- 2

-

Counsel on
Appeal Michael J. Pelletier, Thomas A. Lilien and Christopher McCoy, of the

Office of the State Appellate Defender, of Elgin, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Joseph H. McMahon, State’s Attorney, of St. Charles (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Leah M. Bendik,

Assistant A ttorneys General, of Chicago, of counsel), for the People.

Justices JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial in the circuit court of Kane County, defendant, Darren Denson, was

convicted of first degree murder (720 ILCS 5/9

- 1(a)(2) (West 2002)), armed robbery (720

ILCS 5/18

- 2(a)(1) (West 2002)), and home invasion (720 ILCS 5/12

- 11(a)(1) (West 2002)). The trial court sentenced him to natural life in prison for the first degree murder, consecutive to two concurrent terms of 30 years in prison for the other two counts. Defendant appealed, and the appellate court affirmed. 2013 IL App (2d) 110652. We granted defendant’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. July 1, 2013)) and for the reasons that follow, now affirm the judgment of the appellate court.

¶ 2 BACKGROUND
¶ 3 Defendant was charged by indictment with t he February 2003 murder of Kyle Juggins.

Prior to trial, the State filed a six

- page motion in limine to admit certain hearsay statements made by defendant’s coconspirators. Defendant filed a five

- page written response objecting

to the admission of those st atements. The trial court then held a hearing on the State’s motion, and both sides were given the opportunity to argue before the court. The trial court granted the State’s motion, and the matter eventually proceeded to trial. The jury found defendant gui lty on all counts, and defendant filed a posttrial motion alleging several errors, including the trial court’s pretrial granting of the State’s motion in limine . The trial court denied the motion and imposed sentence. Defendant filed a timely appeal.
¶ 4 On a ppeal, defendant argued that the trial court erred in (1) admitting the coconspirator

statements that were the subject of the State’s motion in limine , and (2) allowing the State to elicit a prior consistent statement from one of its witnesses. With respec t to defendant’s first argument, the appellate court held that defendant forfeited review of this issue both because he (1) failed to file a motion in limine of his own to exclude those statements; and (2) failed to raise a contemporaneous objection when t he State introduced those statements at trial. 2013 IL App (2d) 110652, ¶¶ 7

- 10. The appellate court then held that, even if defendant had

not forfeited the issue, he still was not entitled to relief because, with one harmless exception,- 3

-

all of the contest ed statements, including the prior consistent statement, were properly

admitted. Id. ¶¶ 11

- 29. Accordingly, the appellate court affirmed defendant’s conviction and

sentence. Id. ¶¶ 32

- 33.
¶ 5 Defendant now appeals to this court, arguing that the appellate cou rt erred both in (1)

holding that defendant forfeited review of the admissibility of the coconspirator statements, and (2) holding that two of those statements, as well as the contested prior consistent statement, were properly admitted.

¶ 6 DISCUSSION
¶ 7 Forfeiture
¶ 8 We begin with whether defendant forfeited review of the trial court’s decision to admit

the statements that were the subject of the State’s motion in limine . As noted above, the appellate court’s forfeiture determination was based on two inde pendent considerations: (1)
defendant’s failure to file a motion in limine of his own to exclude the statements at issue, and (2) defendant’s failure to raise a contemporaneous objection when the statements at issue

were admitted at trial. Whether these fa ilures resulted in a forfeiture is a question of law, and

our review therefore is de novo

. People v. Lara , 2012 IL 112370, ¶ 16.

¶ 9 Motion in Limine
¶ 10 With respect to the appellate court’s first consideration, the State makes no attempt in this

court to d efend either the appellate court’s analysis or its conclusion. Instead, the State simply concedes that “the appellate court’s first reason

— that defendant filed a response to a

motion in limine rather than his own motion

— does not justify a finding of forfei ture.” In other words, on this point, the parties agree fully that the appellate court erred. That said, the State’s concession on this point does not end the matter, as this court is not bound by a party’s concession. See People v. Horrell , 235 Ill. 2d 23 5, 241 (2009). Rather, in a case such as this, involving a pure question of law, we are wise to examine for ourselves whether the

concession is well

- founded, whic h in this case it decidedly is.
¶ 11 In criminal cases, this court has held consistently that a de fendant preserves an issue for

review by (1) raising it in either a motion in limine or a contemporaneous trial objection, and (2) including it in the posttrial motion. See People v. Cox , 195 Ill. 2d 378, 382 (2001); People

v. Hudson , 157 Ill. 2d 401, 434

- 35 (1993); People v. Boclair , 129 Ill. 2d 458, 476 (1989). Here, the State filed a six

- page motion in limine to admit certain statements in its case against defendant. In response to the State’s motion, defendant filed a five

- page written objection arguing why the statements at issue were inadmissible. The trial court then held a hearing on the State’s motion, and defense counsel once again had the opportunity to argue against the admissibility of the contested statements. At the conclusion of the hearing, the trial court allowed the State’s motion. Later, following his conviction, defendant filed a motion for a new trial arguing, inter alia , that the trial court erred in granting the State’s motion in limine

. In short, defendant did everything that cases su ch as Cox

, Hudson , and Boclair require, and we therefore hold that he properly preserved his objection to the admissibili ty of the

contested statements.
¶ 12 The appellate court below reached the opposite conclusion. And one of its reasons for

reaching that co nclusion is that, rather than objecting to the admissibility of the contested- 4

-

statements in a motion in limine of his own, defendant did so in response to the State’s

motion in limine to admit those statements. According to the appellate court, this was

in sufficient because, under this court’s settled precedent, it is a motion in limine that preserves an issue for review, not a response to a motion in limine . On this point, the appellate court was quite critical of the decision in People v. Maldonado , 398 I ll. App. 3d 401 (2010), which held that the defendant in that case preserved the issue for review “when he raised it in both his reply to the State’s motion in limine and in his posttrial motion.” Id . at 415. According to the appellate court: “In a single paragraph, Maldonado morphs the law from ‘the supreme court holding that raising an issue in a motion in limine is sufficient to preserve an issue so long as it is also raised in the posttrial motion’ to ‘because defendant did object to the

introduction of this evidence both in his reply to the State’s motion in limine and in his posttrial motion, we conclude that this issue was sufficiently preserved.’
[ Maldonado , 398 Ill. App. 3d at 416.] This non sequitur is a patent distortion of a supreme court holding , made with no analysis or purported justification for the expansion of the supreme court’s holding. We are unaware of any case prior to

Maldonado that holds that raising an issue in a reply to the State’s motion in limine

, rather than in the defendant’s m otion, is sufficient for preservation of the issue. To the

extent that Maldonado so holds, we disavow that holding.” 2013 IL App (2d) 110652, ¶ 8.
In other words, according to the appellate court, the dispositive factor in determining whether an issue is preserved for review is not whether that issue was the subject of in limine litigation, but rather which party filed the pleading that precipitated the in limine litigation.
¶ 13 With due respect to the appellate court, we are convinced that the above analysis elevates

form over substance to an unwarranted and unnecessary degree. Far from being a “ non sequitur ,” Maldonado ’s holding is simply a commonsense application of a settled principle to a specific set of facts. This court’s forfeiture rules exist to encourage defendants to raise issues in the trial court, thereby ensuring both t hat the trial court has an opportunity to correct any errors prior to appeal and that the defendant does not obtain a reversal through his or her own inaction. See, e.g. , People v. Herron , 215 Ill. 2d 167, 175 (2005); People v. Reid , 136 Ill. 2d 27, 38 (19 90). In light of this, the critical consideration in a case such as this is not which party initiated the in limine litigation, but rather whether the issue being raised was litigated in limine . This is because, irrespective of which party initiates the in limine proceeding, as long as it occurs, the interests served are exactly the same. Here, for example, the trial court was asked before trial to rule upon the admissibility of certain statements. The State fully briefed the arguments for their admissibili ty, and defendant fully briefed the arguments for their in admissibility. A hearing then was held at which both sides again presented their best arguments to the trial court, and based upon all it had read and heard, the

trial court ruled. Under these circu mstances, requiring defendant to recaption and refile his response to the State’s motion as a motion in limine of his own would accomplish precisely nothing, other than to clutter the record with duplicative pleadings. The arguments raised in
defendant’s m otion would be exactly the same as those raised in his response to the State’s motion, and the arguments advanced at the hearing on defendant’s motion would be exactly the same as those advanced at the hearing on the State’s motion. The purpose of Cox

, Hud son , and Boclair is not to ensure that pretrial evidentiary issues are litigated twice.- 5

-

Rather, the point of these cases is to ensure that, whether by contemporaneous trial objection

or in limine litigation, the trial court is given a full and fair opportu nity to consider and rule upon the issue. That is exactly what happened here, and as defendant also raised the issue in a timely filed posttrial motion, nothing more than that was required.

¶ 14 Contemporaneous Objection
¶ 15 The second basis for the appellate court’s forfeiture finding is the fact that defendant did

not object when the statements at issue in the State’s motion in limine were admitted into evidence at trial. According to the appellate court, “the denial of a motion in limine does not

in itself preserve an objection to disputed evidence that is later introduced at trial; a contemporaneous objection to the evidence at the time that it is offered is required to preserve the issue for review.” 2013 IL App (2d) 110652, ¶ 9 (citing Simmons v. Garces

, 198 Ill. 2d 541, 569 (2002)). This time, the State agrees fully with the appellate court’s analysis and asks us to affirm the forfeiture finding on this basis.
¶ 16 Before addressing the merits of this portion of the appellate court’s forfeiture analysis, we

a re compelled to make an observation concerning the State’s conduct in the trial court relative to the position it now takes in this court. At the hearing on the State’s motion in

limine , the trial court observed that, in an earlier trial involving one of d efendant’s codefendants, the State chose to address the admissibility of the coconspirator statements during trial rather than in a motion in limine . In response to that observation, the State explained: “That is true, Judge. And that is one thing I wanted to avoid in this trial, especially that trial was a bench trial. Not that it makes a difference, but that trial was a bench trial. It was one of those things, you could stop the flow of the trial a little bit easier to

make that

— for a judge to make that f inding. With a jury trial here, I wanted to make sure this was all out there beforehand; and that when we tried to get in one [of] these statements, there wasn’t an objection and we had to send the jury out for an hour while we argued this , et cetera. I wa nted to bring to the court’s attention beforehand.” (Emphasis added.)

In other words, the State filed its motion in limine not only expecting that defendant would not object at trial if that motion were allowed, but precisely so that defendant would not

ob ject at trial if that motion were allowed. This was for the State’s benefit, and the State communicated this explicitly to both the trial court and defense counsel. Given this, we have some difficulty now entertaining the State’s argument that defendant fo rfeited review of the contested statements by failing to make a contemporaneous trial objection, when insulating those statements from a contemporaneous trial objection was the State’s express objective and implicit request.
¶ 17 As the State well knows, a par ty may not request to proceed in one manner and then later

contend on appeal that the requested course of action was in error. See, e.g. , People v. Lucas

, 231 Ill. 2d 169, 174 (2008). And while a prevailing party may defend its judgment on any basis appear ing in the record, it may not advance a theory or argument on appeal that is inconsistent with the position taken below. See, e.g. , People v. Henderson , 2013 IL 114040, ¶ 23; People v. Franklin , 115 Ill. 2d 328, 336 (1987). Here, the State is doing both of these things, and consequently it is entirely within our prerogative to reject the State’s forfeiture- 6

-

argument outright. See Henderson , 2013 IL 114040, ¶ 24. That said, in the interests of resolving the issue at hand, and in large measure because our reso lution of the issue results in no prejudice to defendant, we will proceed to consider the merits of the remaining portion of

the appellate court’s forfeiture analysis. In doing so, we in no way condone the State’s maneuvering in this case, and we strongly discourage the State from pro ceeding this way in

the future.
¶ 18 As to the merits, we reject the appellate court’s conclusion that defendant forfeited

review of the contested statements by failing to make a contemporaneous trial objection. In criminal cases, this court has held consistently that, to preserve an issue for review, a

defendant must raise it in either a motion in limine or an objection at trial, and in a posttrial

motion. Cox , 195 Ill. 2d at 382; Hudson , 157 Ill. 2d at 434

- 35; Boclair , 129 Ill. 2d at 476. That is exactly what defendant did here, and this court has never required anything more. Defendant preserved the issue.
¶ 19 To be sure, the appellate court correctly noted that, in other cases, this court has held that

the denial of a motion in limi ne does not , by itself, preserve an objection to the admission of disputed evidence and that a contemporaneous trial objection also is required to preserve the issue for review. See, e.g ., Simmons , 198 Ill. 2d at 569; Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. , 163 Ill. 2d 498, 502 (1994). Where the appellate court went astray, however, is in failing to recognize that we have only ever held this in civil

cases and that the forfeiture rules for civil and criminal cases are di fferent. Indeed, in Heritage Standard , this court prefaced its recitation of the above rule with the phrase, “[i]n

civil cases such as this.” Heritage Standard , 163 Ill. 2d at 502. The reason this phrase was necessary is because it is only in civil cases t hat a contemporaneous trial objection is required; this court has never required it in the criminal context.
¶ 20 The State, in turn, attempts to argue that “[u]ncertainty exists in Illinois criminal case law

over whether a contemporaneous trial objection, in addition to inclusion in both the posttrial

motion and an in limine filing, is required to preserve an issue for appellate review.” According to the State, the source of this “uncertainty” is this court’s perpetual inconsistency on this question. On the on e hand, the State argues, there are decisions such as People v.

Enoch , 122 Ill. 2d 176, 186 (1988), People v. Gilliam , 172 Ill. 2d 484, 510 (1996), and In re

M.W. , 232 Ill. 2d 408, 430 (2009), all of which state that a contemporaneous trial objection is

re quired to preserve an issue for review. On the other hand, there are decisions such as Cox

, Hudson , and Boclair , all of which say that a contemporaneous trial objection is not required.
¶ 21 Now, as presented by the State, this certainly looks bad. And were th is the state of the

law, this court certainly would have some explaining and some reconciling to do. Fortunately, this is not the state of the law, not by a long shot. In fact, there is absolutely no inconsistency in the state of this court’s criminal forf eiture jurisprudence because there is an important distinction between the two lines of cases cited by the State, a point the State neglected to mention in its brief though it readily conceded it at oral argument. The

distinction is this: Cox

, Hudson , and Boclair involve issues that were or could have been

raised in a motion in limine ; Enoch

, Gilliam , and M.W. do not. Rather, Enoch

, Gilliam , and

M.W. involve routine trial errors that were not raised and could not have been raised in a

motion in limine

—

M.W. involved defective notice; Gilliam involved a biased jury; and

Enoch involved several issues, including one

- act/one

- crime concerns, an improper opening- 7

-

statement, and the voluntariness of defendant’s jury waiver. In other words, to create the impression of “uncertainty,” the State pits this court’s specific rule for preserving issues raised and litigated in a motion in limine , where a contemporaneous trial objection is not required because the issue has been considered previously, against this court’s gener al rule for preserving routine trial errors, where a contemporaneous trial objection is required because the issue has not been considered previously. That’s apples and oranges, and the reality is that this court has never applied the general rule in the s pecific context of an issue that was litigated in limine

. ¶ 22 As a final matter on this point, we wish to address a statement made by the State at oral

argument. In its brief, the State gave no indication of recognizing the distinction between

civil and crimi nal forfeiture rules, as outlined above. Quite the opposite, in fact, as the State
in its brief dismissed as “inaccurate” defendant’s claim that “this court has never found a claim forfeited due to the failure to contemporaneously object and that such a re quirement is only found in civil cases.” By the time oral argument was held, however, the State readily acknowledged such a distinction and now was advocating that “the established civil rule be extended to criminal cases by requiring a trial objection in every case.”
¶ 23 We mention this because, in fact, the State is not advocating that the established civil rule

be extended to criminal cases. Rather, it is advocating that the established civil rule be added to criminal cases. Again, with respect to issues litigated in limine , the civil and criminal forfeiture rules are different, and it is not simply that the former requires a contemporaneous trial objection while the latter does not. The difference is that the civil rule requires a contemporaneous trial objection, whereas the criminal rule requires that the issue be raised in the posttrial motion. In other words, both the civil rule and the criminal rule require the objecting party to bring the in limine iss ue to the trial court’s attention one additional time. In civil cases, that is through a contemporaneous trial objection. In criminal cases, that is through the posttrial motion. And this distinction makes perfect sense because, while posttrial

motions are a mandatory prerequisite to raising an issue on appeal in criminal cases ( Enoch

, 122 Ill. 2d at 186), they are not in many civil cases (Ill. S. Ct. R. 366(b)(3)(ii) (eff. Feb. 1, 1994)). In advocating that “the established civil rule be extended to crimin al cases,” the State surely is not suggesting that we dispense with the posttrial motion requirement in criminal cases, which is what extending the established civil rule to criminal cases would entail. No, what the State is advocating is that criminal def endants be subject to both the civil rule and the criminal rule, having both to contemporaneously object and to include the in limine issue in a posttrial motion. While we recognize that this is the approach taken in some jurisdictions, 1 we are content to leave our rules exactly as they are.
¶ 24 In sum, then, we hold that, having objected to the admissibility of the contested

statements both in his response to the State’s motion in limine and in his posttrial motion, defendant did all that our rules require to preserve that issue for review; a contemporaneous trial objection was not also required.

1 See, e.g. , People v. Salcido , 186 P.3d 437, 487 (Cal. 2008); Coday v. State , 946 So. 2d 988, 995 (Fla. 2006) (

per curiam ); State v. Houston , 213 P.3d 728, 740 (Kan. 2009); State v. Huston , 824 N.W.2d 724, 733 (Neb. 2013); State v. Dennison , 608 S.E.2d 756, 757 (N.C. 2005) ( per curiam ); State

v. Cain , 806 N.W.2d 597, 605 (N.D. 2011).- 8

- ¶ 25 The Statements
¶ 26 Now that we have disposed of the forfeiture issue, we turn to the merits of defendant’s

objections to the statements that were admitted against h im. Broadly speaking, these statements fall into two categories. First, there are three statements that were admitted pursuant to the coconspirator exception to the hearsay rule. 2 These are the statements that were the subject of the State’s motion in limi ne , and they include statements that coconspirators Getino Robinson and Tauren Giles made to coconspirator Kineta Bell, as well as a statement that coconspirator Kineta Bell made to her sister, Melanie Banner. In addition, there is a prior consistent state ment that the State was allowed to elicit from the victim’s girlfriend, Stacy Daniels. Defendant argues that each of these statements was improper hearsay that the trial court should have ruled inadmissible.
¶ 27 As we have previously discussed, the appellate court below initially held that defendant

forfeited his objections to the admissibility of the three coconspirator statements. Nevertheless, the appellate court then went on to address at length the admissibility of those

statements on the merits. As to th e statements that Robinson and Giles made to Bell, the appellate court concluded that they were clearly made during the pendency of and in furtherance of the conspiracy and therefore were properly admitted. 2013 IL App (2d) 110652, ¶¶ 12

- 17. As to the stat ement that Bell made to Banner, the appellate court

concluded that this statement was not made in furtherance of the conspiracy and that the trial court therefore erred in admitting it. Id. ¶¶ 18

- 23. The appellate court added, however, that

this error was harmless beyond a reasonable doubt, as Bell’s statement to Banner was both duplicative of other competent evidence and “of such little consequence” that it could not

have contributed to defendant’s conviction. Id. ¶ 24. Finally, as to Daniels’ prior consis tent statement, the appellate court concluded that, although prior consistent statements ordinarily are inadmissible, the admission of Daniels’ statement was proper in this case given the nature

of defense counsel’s cross

- examination. Id. ¶¶ 25

- 29.
¶ 28 After reviewing the record, the parties’ arguments before this court, and the appellate

court’s opinion below, we are convinced that the appellate court’s analysis of these statements is not only correct but also factually and legally complete. Consequently, we see no need to repeat or replicate that analysis here. Instead, it is enough to say that, on these points, we agree fully with the appellate court and therefore affirm both its reasoning and its

conclusions.

¶ 29 CONCLUSION
¶ 30 Though we disagree with the app ellate court’s forfeiture analysis, we agree fully with the

appellate court’s conclusion that, with one harmless exception, the trial court properly admitted the statements in question. The judgment of the appellate court therefore is

affirmed.

¶ 31 Affirmed.

2 This exception provides that any declaration by one coconspirator is admissible against all conspirators w here the declaration was made during the pendency of and in furtherance of the conspiracy. People v. Kliner , 185 Ill. 2d 81, 141 (1998); Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011).