People v. Zimmerman , 2018 IL App (4th) 170695 ( 2018 )

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Appellate Court Date: 2018.08.21
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People v. Zimmerman, 2018 IL App (4th) 170695
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption KIRK ZIMMERMAN, Defendant-Appellee.
District & No. Fourth District
Docket Nos. 4-17-0695, 4-17-0696 cons.
Filed June 18, 2018
Decision Under Appeal from the Circuit Court of McLean County, No. 15-CF-894; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Affirmed.
Counsel on Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
Appeal David J. Robinson, and David E. Mannchen, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
John P. Rogers, of Rogers, Sevastianos & Bante, LLP, of Clayton,
Missouri, for appellee.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Holder White and Knecht concurred in the judgment and
opinion.
OPINION
¶1 In July 2015, a grand jury indicted defendant, Kirk Zimmerman, for the first degree murder
(720 ILCS 5/9-1(a)(1) (West 2014)) of defendant’s ex-wife, Pamela Zimmerman. The State
later filed two motions in limine that sought to (1) introduce identification testimony pursuant
to section 115-12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-12
(West 2016)) and Illinois Rule of Evidence 801(d)(1) (eff. Oct. 15, 2015) and (2) introduce
statements by Pamela under the doctrine of forfeiture by wrongdoing. See Ill. R. Evid.
804(b)(5) (eff. Jan. 1, 2011). Defendant subsequently filed his own motions in limine to
exclude the same evidence the State sought to introduce.
¶2 The trial court first took up the identification testimony and conducted a hearing over
multiple days in March and April 2017, at which several witnesses testified. Following the
hearing, the court granted the State’s motion in part, ruling that only one of the State’s
witnesses could testify as to a prior identification.
¶3 Over five days in May 2017, the trial court conducted a hearing, at which several witnesses
testified on the issue of forfeiture by wrongdoing. In July 2017, the court issued a written order
finding defendant killed Pamela with the intention of preventing her from testifying. However,
the court deemed only two oral statements and one set of documents admissible pursuant to the
forfeiture by wrongdoing doctrine. The court excluded all other proposed statements because
they were “not probative of any material fact; irrelevant; speculative; remote; improper lay
opinion; lack[ed] *** personal knowledge; cumulative; improper character evidence; and/or
the probative value of the evidence [was] substantially outweighed by its prejudicial effect.”
Despite so ruling, the court noted the State could still seek to introduce the evidence at trial.
¶4 In August 2017, the State filed two motions to reconsider each of the trial court’s rulings.
The State argued the court applied the wrong standards in evaluating the evidence and unduly
restricted the State’s ability to present its case. Alternatively, the State requested the court
explain with specificity why the court believed certain statements were inadmissible so the
State could address the court’s concerns before again seeking the statements’ admission at
trial. The State also explained that it wished to properly structure its case so as to prevent an
inadvertent violation of the order in limine and a mistrial. The court denied the motions to
reconsider. The State filed an interlocutory appeal.
¶5 The State appeals, arguing that the trial court erred by (1) granting its motions in limine
only in part and (2) deeming inadmissible certain prior identification testimony and certain
statements under the doctrine of forfeiture by wrongdoing. We disagree and affirm.
¶6 I. BACKGROUND
¶7 The following testimony and documentary evidence were presented to the trial court at the
hearings on the motions in limine.
¶8 A. The Underlying Murder and Initial Investigation
¶9 Sometime on the evening of November 3, 2014, defendant’s ex-wife, Pamela Zimmerman,
was murdered in her office in an area of Bloomington, Illinois, commonly known as Doctors
Park. On November 4, 2014, at approximately 7:30 a.m., her body was discovered by Ina Hess,
Pamela’s secretary. Pamela had been shot multiple times, including once in the head.
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Investigators did not discover anything of significant value missing from the office. Pamela’s
wallet was eventually located several streets from the office in a ditch, but the wallet contained
cash and all of her credit cards. Her cellular phone was also found several streets away.
¶ 10 Later that day, investigators approached defendant at State Farm Insurance Company
where he worked and, after informing him of Pamela’s death, asked him to come to the police
station for an interview. He complied, and the police interviewed him for approximately six
hours but ultimately released him. The police interviewed him several times in the following
days but did not arrest him for the murder. The investigation continued for several months. In
July 2015, a grand jury indicted defendant for first degree murder.
¶ 11 B. The Identification Testimony Motions and Proceedings
¶ 12 1. Defendant’s Motion to Suppress
¶ 13 In September 2016, defendant filed a motion to suppress identification. Although the trial
court ultimately granted that motion in part, that ruling is not at issue in this appeal.
Nonetheless, the testimony presented at the hearing on that motion is pertinent to this appeal.
¶ 14 Defendant sought to suppress the identification of defendant by Mrs. Maria Legg.
Defendant argued the photo lineup at which Mrs. Legg identified defendant was impermissibly
suggestive. Defendant further contended Mrs. Legg’s testimony was inherently unreliable.
¶ 15 The trial court conducted a hearing on the motion on three separate days in March and
April 2017. Bloomington Detective Tim Power testified about the police investigation of the
death of Pamela Zimmerman. Power stated the police received an anonymous tip in March
2016 that someone may have seen defendant at the scene of the crime on the night of the
murder. The tip led police to Ron and Annis Guenther, who informed them about a meeting
they had with Maria and Charles Legg at a Hardee’s restaurant in the fall of 2015. During that
meeting, Mrs. Legg informed them she had seen defendant in the Doctors Park parking lot on
November 3, 2014, and recognized him when his picture was printed in the newspaper
following his July 2015 arrest.
¶ 16 Later in March 2016, Power interviewed the Leggs in their home and administered a photo
lineup via a computer program. Both the interview and the lineup were recorded and reviewed
by the court. During the interview, Mrs. Legg described (1) what she saw on November 3,
2014, (2) her identification of defendant as the man she saw on that night from a picture in the
newspaper, and (3) her conversation with the Guenthers and her husband at the Hardee’s
regarding both of these events. Power testified that following the interview, Mrs. Legg viewed
a photo lineup and indicated she believed the first photo was the man she saw. The first photo
was defendant and was the same photo published in the local newspaper on numerous
occasions.
¶ 17 Mrs. Legg testified she was dropping off recycling at St. Luke Union Church around 6 p.m.
on November 3, 2014. The church shares a parking lot with Doctors Park. Mrs. Legg testified
she saw a man exiting the rear of what was later identified as Pamela’s office. The man was
tightly holding a black garbage bag and stared directly at her. Mrs. Legg stated she was scared
because she was alone, but she looked right at the man. The parking lot was well-lit, and the
man eventually walked in her direction, but before reaching her, he stopped at a car parked
under a light post. He put the garbage bag in the car’s trunk before getting in the car. As Mrs.
Legg then exited the parking lot, she drove past the man as he sat in his car. The next day, she
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saw in the newspaper that a murder occurred in Doctors Park. She called her husband, who was
out of town, and told him what had happened. She asked him if she should talk to the police.
Her husband said she should not because the man might come after them.
¶ 18 Months later, Mrs. Legg saw a photo of defendant in the newspaper and recognized him as
the man she saw on the night of the murder. (The trial court took judicial notice of the fact that
the first time defendant’s picture was published in the newspaper was July 22, 2015.)
¶ 19 Mrs. Legg further testified that sometime thereafter, she and her husband met the
Guenthers at a fast-food restaurant, and she informed both of them about what she saw on the
night of the murder. She also told them she subsequently identified defendant as the man she
saw from his photo in the newspaper. Mrs. Legg also testified about the police interview and
photo lineup. Additionally, Mrs. Legg made an in-court identification of defendant.
¶ 20 Annis Guenther testified she and her husband sometimes met the Leggs at a Hardee’s.
They did not socialize with the Leggs outside of that setting. Mrs. Guenther testified that on
one particular occasion, likely in the fall of 2015, Mrs. Legg was very upset and told them what
she had seen on November 3, 2014. Mrs. Legg also told them about recognizing defendant
after seeing his picture in the newspaper. Mrs. Guenther stated she did not tell the police but
did share the information with others.
¶ 21 Charles Legg testified that in early November 2014, his wife called him upset because she
had seen a strange man while dropping off recycling at St. Luke Union Church. He added that
she later recognized the man when his picture was published in the newspaper. Mr. Legg also
testified about seeing the Guenthers at Hardee’s and that his wife informed them of her
experiences.
¶ 22 After the hearing, the trial court ruled Mrs. Legg’s identification of defendant from the
photo lineup was inadmissible because it was impermissibly suggestive. However, the court
found Mrs. Legg had a sufficient independent recollection to render her in-court identification
admissible.
¶ 23 2. The State’s Motion in Limine to Admit Statements of Identification
¶ 24 In May 2017, the State filed a motion in limine to admit statements of identification
pursuant to section 115-12 of the Code (725 ILCS 5/115-12 (West 2016)) and Illinois Rule of
Evidence 801(d)(1)(B) (eff. Oct. 15, 2015). The State sought a ruling that testimony at the
hearing on the motion to suppress identification from Charles Legg, Annis Guenther, and Ron
Guenther that Maria Legg identified defendant as the man she saw on November 3, 2014, was
admissible. The State argued that testimony from Charles Legg that Mrs. Legg identified
defendant upon seeing him in the newspaper and her later recitation of this event to the
Guenthers both constituted statements of identification and were therefore admissible.
¶ 25 Defendant filed a response, arguing the proposed witnesses lacked “personal knowledge of
the circumstances of *** identification,” and were merely informed of the identification after
the fact. Accordingly, defendant argued, the testimony would be cumulative, unhelpful, and
constitute improper bolstering.
¶ 26 In August 2017, the trial court ruled that Charles Legg could testify as to the identification
made by Mrs. Legg when she saw defendant’s photo in the newspaper, but the Guenthers could
not testify regarding the conversation at Hardee’s. The court indicated that it found the
Guenthers “were merely individuals who would be able to repeat what someone said[,]” and
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their testimony would merely be repetitive of Mr. and Mrs. Leggs’ testimony. The court
described a hypothetical in which Mrs. Legg recounted her identification to a crowded theater
and explained that the State could not call all those witnesses to testify to the same event
because it would be cumulative. Because the court concluded that the Guenthers’ testimony
would not be helpful to the trier of fact in deciding what weight to give the statements of prior
identification, the court excluded that testimony.
¶ 27 C. The Forfeiture by Wrongdoing Motions and Proceedings
¶ 28 1. The Motions in Limine
¶ 29 In March 2017, the State filed a motion in limine to admit certain hearsay statements of
Pamela pursuant to the common-law doctrine of forfeiture by wrongdoing and Rule of
Evidence 804(b)(5). The State later filed several additional motions that added additional
statements for admission on the same grounds.
¶ 30 In total, the State sought to introduce more than 40 statements from 16 witnesses and
approximately 20 pages of documents. The proposed statements were from as far back as 2010
and as recent as the day of the murder.
¶ 31 In its motions, the State listed each specific statement to which it anticipated each witness
would testify. Most of the statements dealt with the relationship between Pamela and
defendant, particularly their 2012 divorce, 2013 child support enforcement proceedings, and
anticipated enforcement proceedings in 2014. Others dealt with Pamela’s fear or suspicion of
defendant and what he might do to her over money, his retirement, and her recent engagement.
The statements will be discussed only as necessary.
¶ 32 Defendant filed a written response to the State’s motion, and the State subsequently
amended its motion and filed a written response to defendant’s response. On July 5, 2017, after
the trial court had conducted evidentiary hearings, the State filed written arguments in support
of its motion.
¶ 33 On July 10, 2017, defendant filed a motion in limine to exclude the State’s proposed
statements. Defendant argued that the State failed to meet its burden that he murdered Pamela
with the intent of preventing her from testifying at a future proceeding. Defendant additionally
asserted that even if forfeiture by wrongdoing applied, the statements were still inadmissible
because they were irrelevant, speculative, remote, and substantially more prejudicial than
probative.
¶ 34 2. The Forfeiture by Wrongdoing Testimony
¶ 35 Over five days in May 2017, the trial court heard testimony on the State’s motion in limine
in order to determine if (1) defendant murdered Pamela and (2) he did so with the intent to
make her unavailable as a witness. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). The court took
judicial notice of the identification testimony and evidence submitted at prior hearings in this
case as well as the records in the McLean County divorce case between Pamela and defendant.
The parties stipulated to the admission of numerous exhibits, including crime scene and
investigation photographs, autopsy reports, gunshot residue reports, cell phone records,
witness interview recordings (including defendant’s prior interviews), and various other
documents.
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¶ 36 At the hearing, the State’s theory was that defendant killed Pamela, in part, because she had
recently decided to take him back to court to recover his half of certain child care expenses, and
her doing so would interfere with defendant’s ability to retire as scheduled. The evidence
presented showed Pamela sent defendant a letter in October 2014, explaining that he owed
$4000 in child care expenses and warning that if he did not pay, she would institute legal
proceedings to recover the money. The letter included a spreadsheet itemizing the expenses.
Other evidence showed the letter was sent via FedEx, and defendant signed for it in late
October. In his interview with police the day after the murder, defendant discussed a FedEx
document with police while describing his relationship with his ex-wife and their financial
disagreements.
¶ 37 The State presented extensive testimony from Pamela’s friends, neighbors, and clients as
to particular statements Pamela made. Several friends testified that during and after the
divorce, Pamela had said various versions of the following statement: “[i]f anything happens to
me, Kirk did it.” Others testified that Pamela had expressed concern over how defendant would
react when he found out she had gotten engaged. The evidence showed she got engaged just a
few days before she was killed. Still others testified as to statements made by Pamela before,
during, and after the divorce concerning her fear of what defendant might do to her and
statements made by defendant to Pamela about the divorce and child support.
¶ 38 Kathleen Kraft testified extensively concerning the 2012 divorce proceedings and the 2013
enforcement proceedings. Kraft testified she was Pamela’s attorney during this time period and
explained that defendant’s pension was an overriding issue in the divorce proceedings and
something she discussed frequently with Pamela. Pamela repeatedly stated that defendant
wanted to retire at age 55, and if she interfered with that, she was afraid of what he might do to
her. Kraft advised Pamela she was entitled to half of defendant’s pension, but following
mediation, the parties agreed defendant would keep 100% of his pension.
¶ 39 Kraft testified that she initiated enforcement proceedings in early 2013 against defendant at
Pamela’s request when defendant was not paying his share of child support. Pamela again
expressed concern and fear about what defendant would do to her if enforcement proceedings
interfered with his retirement. The trial court in those proceedings eventually found defendant
in contempt and garnished his wages.
¶ 40 Kraft stated she spoke with Pamela in the fall of 2014, when Pamela advised her that
defendant was again not paying his share of child support. Kraft advised her to send him a
letter demanding payment and suggested if he did not comply, they would start enforcement
proceedings again. On November 3, 2014, Pamela called Kraft and said she sent defendant the
letter, he had not responded, she wished to start enforcement proceedings, and she wanted to
know how much the retainer would be.
¶ 41 Marla Knuckey testified she considered Pamela to be one of her best friends. The two met
while their daughters were in volleyball together and frequently saw each other at games and
tournaments. Sometime after the divorce at one of those games, Pamela told Knuckey that
defendant was angry because the two were going back to court over child support. Pamela
stated that defendant said he should not have to pay the amount she was seeking because she
made more money than he did. Pamela also reported to Knuckey that defendant told her she
was ruining his life with these proceedings because he was not going to be able to retire.
According to Knuckey’s testimony, defendant said “he thought that [Pamela] was going to,
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basically, use up all of his retirement money if he had to pay for all of this and he would not be
able to retire.”
¶ 42 Knuckey testified that in the fall of 2014, a few weeks before Pamela died, Pamela
indicated she was worried about how defendant would react when he found out she was
engaged. Knuckey could not remember the setting of this conversation, but she testified that in
October 2014 she attended a Big 12 Conference volleyball tournament in Champaign with
Pamela. At that time, Pamela indicated she and defendant had gotten into an argument, but
Knuckey could not remember any specifics. Knuckey did recall that Pamela told her at that
time that “[i]f anything happens to me, you know who did it,” referring to defendant.
¶ 43 During Knuckey’s testimony, defendant frequently objected to her representations of
Pamela’s statements because he believed she was paraphrasing and that the testimony was
“speculative.” The State replied that reliability was not an issue with respect to statements
under the forfeiture by wrongdoing doctrine. The court admonished Knuckey that “ ‘I believe’
doesn’t cut it,” and to be as specific as possible to the best of her recollection.
¶ 44 Throughout the hearing, a pattern emerged. Witnesses would testify as to statements they
remembered, defendant would object and argue the statements were speculative, and,
occasionally, the court would admonish the witness to be as specific as possible. Eventually,
the witnesses were asked by the State and the court to testify as to Pamela’s exact statements in
the first person.
¶ 45 The State also presented evidence that a car similar to defendant’s vehicle could be seen on
surveillance camera footage in the parking lot of Pamela’s office complex on the day of the
murder. A forensic report showed gunshot residue was present on the gearshift of defendant’s
car.
¶ 46 Eldon Whitlow testified he was a client of Pamela, who was a financial advisor, and
attended an appointment with her on the night of the murder. He reported being with Pamela
until approximately 5:40 p.m., when he left to take care of a friend’s pets.
¶ 47 A police officer testified he examined Pamela’s phone, and GPS data on the phone
suggested the phone left Pamela’s office at 6:03 p.m.
¶ 48 Defendant’s girlfriend at the time of the murder testified she went to defendant’s house
around 6:40 p.m. on November 3, 2014, but defendant did not come to the door. He later texted
her that he had laid down in bed to read. She testified she went over to his house after 7:20 p.m.
where they had a normal evening before she returned home for bed around 9 p.m.
¶ 49 The parties stipulated to the admission of a document that contained a table depicting the
text messages sent between defendant and his then-girlfriend on November 3, 2014. The table
indicated that these text messages had been deleted off of both parties’ phones.
¶ 50 Defendant presented evidence from a therapist whose office was located near Doctors
Park. The therapist testified she and a client heard three gunshots in short succession on
November 3, 2014. She stated the clock in her office indicated the time was approximately
5:30 p.m. when she heard the shots.
¶ 51 Following this testimony, the State submitted a written argument in support of the
admission of the statements in question. Defendant later filed a motion in limine to exclude
these statements. The trial court subsequently received extensive oral arguments from the
parties on the admissibility of these statements.
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¶ 52 3. The Trial Court’s Ruling
¶ 53 In July 2017, the trial court issued a written ruling that first concluded that the State had
proved by a preponderance of the evidence that defendant killed Pamela with the intent to
prevent her from testifying at a future proceeding relating to expenses for their children. The
court based its ruling on the gunshot residue found in defendant’s car, the deletion of text
messages from defendant’s cell phone received and transmitted on the night of the murder,
statements made by defendant in various recorded police interviews, “the inference that may
be drawn via circumstantial evidence of a car similar to defendant’s being located in the
parking lot adjacent to the crime scene on the night Pamela was murdered,” Mrs. Legg’s
identification testimony, and ongoing financial issues “with reference to child[-]related
expenses shared by Pamela and the defendant at or near the time of her murder.”
¶ 54 The trial court then analyzed the many statements offered by the State to determine which
would be admissible. According to the court, “[t]he proper question [was] what statements
and/or documents offered by the State are evidence of the defendant’s specific intent to prevent
the victim from being a witness[.]” The trial court determined that three statements were
admissible: (1) the October 2014 FedEx letter sent from Pamela to defendant regarding $4000
owed in child support payments and threatening legal action; (2) Pamela’s statement to her
attorney, Kathleen Kraft, by telephone on November 3, 2014, that “Kirk still hasn’t paid. I sent
him a packet via FedEx. He hasn’t responded. I have a copy for you. Let me know what
retainer will be required”; and (3) Marla Knuckey’s testimony regarding Pamela’s statement
that the defendant “wasn’t going to be able to retire if he had to continue with all ‘this’, i.e.
child support.”
¶ 55 The trial court then ruled, as follows:
“All remaining statements and/or documents sought to be introduced by the State
are not admissible under the doctrine of forfeiture by wrongdoing and Illinois Rule of
Evidence 804(b)(5) as one or more of the following additional evidentiary
considerations apply: not probative of any material fact; irrelevant; speculative;
remote; improper lay opinion; lack of personal knowledge; cumulative; improper
character evidence; and/or the probative value of the evidence is substantially
outweighed by its prejudicial effect.”
¶ 56 The trial court noted that because this was an interlocutory ruling on a motion in limine, the
State could still seek to introduce the evidence at trial. However, the court cautioned the State
to consider People v. Floyd, 103 Ill. 2d 541, 470 N.E.2d 293 (1984), and People v. Munoz, 398
Ill. App. 3d 455, 923 N.E.2d 898 (2010).
¶ 57 D. The State’s Motions to Reconsider
¶ 58 In August 2017, the State filed separate motions to reconsider the trial court’s rulings on
the admissibility of the identification testimony and forfeiture by wrongdoing statements. The
State argued the statements of identification from the Guenthers were admissible and relevant
because they went to the credibility of Mrs. Legg’s identification. The State also contended the
rule contained no limit on the number of identification witnesses who may testify and the court
should not impose one.
¶ 59 Regarding the forfeiture statements, the State argued the trial court applied the wrong
standard limiting the statements to those which directly showed defendant killed Pamela to
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prevent her testimony. The State further asserted that the statements were relevant and
admissible because they went to motive and intent. The State contended that by excluding
them, the court was severely inhibiting the State from presenting its case. Alternatively, the
State urged the court to address each statement individually so it could address the court’s
concerns at trial.
¶ 60 The trial court denied both motions. The court also declined the State’s request to address
the forfeiture by wrongdoing statements individually. In its ruling, the court reiterated that it
had not added any extra requirements but was simply applying the law as the court saw it. The
court stated it had not considered whether it was preventing either party from presenting its
case because that was not what the court was doing. Instead, the court stated it was simply
acting as a gate keeper and applying the rules of evidence.
¶ 61 This appeal followed.
¶ 62 II. ANALYSIS
¶ 63 The State appeals, arguing that the trial court erred by (1) granting its motions in limine
only in part and (2) deeming inadmissible certain prior identification testimony and certain
statements under the doctrine of forfeiture by wrongdoing. We disagree and affirm.
¶ 64 A. The Standard of Review
¶ 65 The State contends that although evidentiary decisions are ordinarily reviewed for an abuse
of discretion, the trial court’s rulings on the motions in limine should be reviewed de novo. The
State asserts that in this case, “neither the credibility of the witnesses nor the facts are disputed
and *** the question is whether the trial court properly applied a rule of law,” thus making
de novo review appropriate. Defendant counters that merely because the trial court applied the
law to a set of facts does not transform the standard of review from abuse of discretion to
de novo. Defendant argues de novo review is only proper when the trial court applies an
erroneous rule of law. The State responds that the trial court did, in fact, erroneously apply the
law by adding additional requirements to the hearsay rules it analyzed that are not found in the
text of the rules or common law. We agree with defendant.
¶ 66 “As a general rule, a trial court’s ruling on a motion in limine regarding the introduction or
exclusion of evidence is reviewed under an abuse of discretion standard.” People v. Richter,
2012 IL App (4th) 101025, ¶ 97, 977 N.E.2d 1257. In People v. Perkins, 2018 IL App (1st)
133981, ¶ 52, the defendant made an argument similar to the one the State makes
here—namely, that because the facts are not in dispute, de novo review is proper. In rejecting
the argument, the First District explained de novo review is only proper when the trial court
misinterprets an evidentiary rule so that the issue presented is solely a legal one. Id. ¶¶ 52-53.
¶ 67 The Illinois Supreme Court has stated that the manifest weight of the evidence standard,
not the abuse of discretion standard, is proper when reviewing a trial court’s rulings on the
forfeiture by wrongdoing doctrine. People v. Peterson, 2017 IL 120331, ¶ 39. The court noted
abuse of discretion is proper where the trial court must make a judgment call, but “[t]he
admission of hearsay statements into evidence pursuant to the forfeiture doctrine, however, is
not dependent on a judgment call by the trial court.” Id. Instead, because “[a]dmission is
dependent on whether the trial court finds, by a preponderance of the evidence, that the
defendant engaged in wrongdoing that was intended to, and did, procure the witness’s
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unavailability,” that finding is reversed only if it is against the manifest weight of the evidence.
Id.
¶ 68 However, a careful reading of Peterson and People v. Hanson, 238 Ill. 2d 74, 939 N.E.2d
238 (2010), indicates that the manifest weight of the evidence standard applies to the trial
court’s finding of whether the doctrine applies; that is, whether the trial court properly found
that the State had proved by a preponderance of the evidence that the defendant engaged in
wrongdoing that was intended to, and did, procure the witness’s unavailability. Peterson, 2017
IL 120331; Hanson, 238 Ill. 2d at 99. We note that both cases examined only whether the
doctrine applied and did not consider the admissibility of the statements on other grounds.
Hanson still requires the statements offered under the forfeiture doctrine to be “relevant and
otherwise admissible,” thus indicating the trial court still has discretion to exclude statements
that would otherwise be admissible under the forfeiture doctrine if they are irrelevant or are
barred by some other evidentiary concern. Hanson, 238 Ill. 2d at 99.
¶ 69 In this case, neither party contests the factual findings of the court. Therefore, we review
the trial court’s evidentiary rulings for an abuse of discretion. “A trial court abuses its
discretion only when its decision is arbitrary, fanciful, unreasonable, or no reasonable person
would adopt the view taken by the court.” Richter, 2012 IL App (4th) 101025, ¶ 97.
¶ 70 B. Statements of Identification
¶ 71 The State argues that the trial court applied the wrong standard when it found the
Guenthers were “merely individuals who would be able to repeat what someone has said.”
According to the State, all identification testimony under Rule 801(d)(1)(B) and section
115-12 is necessarily a repetition of what someone said, and thus, the trial court’s ruling had
the effect of eliminating the prior identification exclusion to the hearsay rule. The State further
contends that the court limited the State to one identification witness even though the Rule,
statute, and case law contain no such limitation. Accordingly, the State asserts the trial court
should not have found the Guenthers’ statements to be repetitive or cumulative.
¶ 72 As additional support for this contention, the State analogizes section 115-12 to section
115-10, which deals with statements by child victims of sexual assault (725 ILCS 5/115-10
(West 2016)), and section 115-10.1, which deals with prior inconsistent statements (725 ILCS
5/115-10.1 (West 2016)), which courts have held do not limit the number of witnesses the State
may present.
¶ 73 In response, defendant contends that the State takes the trial court’s ruling out of context.
Defendant asserts that the court did, in fact, rule that the statements were admissible as
statements of prior identification but excluded them because they were cumulative. In
particular, defendant asserts that “ ‘ “[e]vidence is considered cumulative when it adds nothing
to what was already before the jury” ’ ” (quoting People v. White, 2011 IL App (1st) 092852,
¶ 44, 953 N.E.2d 398, quoting People v. Ortiz, 235 Ill. 2d 319, 335, 919 N.E.2d 941, 950
(2009)), and the court’s ruling reflects precisely such a finding. Defendant further claims the
trial court found the Guenthers’ statements were irrelevant because they lacked personal
knowledge of the identification event, distinguishing this case from People v. Beals, 162 Ill. 2d
497, 643 N.E.2d 789 (1994).
¶ 74 We conclude that the trial court did not abuse its discretion when it found the Guenthers’
statements inadmissible.
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¶ 75 1. The Applicable Law
¶ 76 Generally, a witness’s prior consistent statements are inadmissible to corroborate the trial
testimony of that witness. Id. at 507. However, this rule does not apply to statements of
identification. Id. at 507-08. Section 115-12 provides:
“A statement is not rendered inadmissible by the hearsay rule if (a) the declarant
testifies at the trial or hearing, and (b) the declarant is subject to cross-examination
concerning the statement, and (c) the statement is one of identification of a person
made after perceiving him.” 725 ILCS 5/115-12 (West 2016).
Similarly, Illinois Rule of Evidence 801(d)(1)(B) (eff. Jan. 1, 2011) provides “[a] statement is
not hearsay if *** [i]n a criminal case, the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is *** one of
identification of a person made after perceiving the person.” The reason such statements are
admissible is the “corroborative testimony is considered reliable *** because both the witness
and the third person are subject to cross examination at trial.” Beals, 162 Ill. 2d at 508.
¶ 77 Statements admissible under these rules are not limited to “a witness’ actual identification
of a defendant,” but instead include “the entire identification process” so that the jury is fully
informed concerning the reliability of the identification. People v. Tisdel, 201 Ill. 2d 210, 219,
775 N.E.2d 921, 926 (2002). Thus, testimony relating to prior instances of nonidentification is
admissible. Id.
¶ 78 2. Application to the Facts of This Case
¶ 79 Contrary to the State’s arguments, the trial court did not apply an incorrect standard. Here,
the trial court expressly found the Guenthers’ statements were admissible as statements of
prior identification when it denied the State’s motion to reconsider. The court clarified that it
was basing its ruling on other rules of evidence, not hearsay considerations. We agree with
defendant that the court’s statement that the Guenthers were “merely individuals who would be
able to repeat what someone has said” indicates it found the testimony would be cumulative.
Immediately after this statement, the court concluded as follows:
“And so merely repeating the fact that an individual has identified a person to
another person doesn’t help anyone, the trier of fact included, from the Court’s
perspective, in assessing, and determining, and weighing what weight to give to that
testimony, if all there is is being repeated [by] one, two, three, four, or more witnesses.”
¶ 80 “ ‘Evidence is considered cumulative when it adds nothing to what was already before the
jury.’ ” White, 2011 IL App (1st) 092852, ¶ 44 (quoting Ortiz, 235 Ill. 2d at 335). Here, the
court gave a thorough explanation as to why it believed the Guenthers’ testimony would not
help the trier of fact in assessing and weighing the identification testimony. Most importantly,
the court had already ruled that Mrs. Legg would be able to offer her in-court identification of
defendant, and Mr. Legg would be able to testify as to her initial identification upon seeing
defendant’s photo in the newspaper. Given that the court’s ruling not to admit the Guenthers’
testimony followed a ruling to allow the testimony of the Leggs, we cannot say the court
abused its discretion by determining the Guenthers’ testimony would be cumulative.
¶ 81 The State is correct, and defendant concedes, that Rule 801(d)(1)(B) and section 115-12 do
not contain any limitation on the number of witnesses a party may call to testify about prior
identifications. However, the trial court did not erroneously create a rule limiting the number
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of State’s witnesses. Instead, as the court explained, its ruling was based on other evidentiary
considerations—namely, the testimony was repetitive and cumulative.
¶ 82 The State argues that the trial court’s conclusion that the Guenthers’ testimony would “add
nothing” was erroneous. The State points out that their testimony explains the progression of
the police investigation and how an eyewitness came to the attention of police. The State
further argues the testimony could rebut a claim that Mrs. Legg fabricated the identification for
some ulterior motive such as publicity. Although the State’s arguments are reasonable, they
ignore the interlocutory nature of the trial court’s ruling.
¶ 83 The Guenthers’ testimony could be viewed as minimally relevant. That is, the prior
identification to the Guenthers could assist the trier of fact in concluding that Mrs. Legg’s
identification was sincere. But that does not mean their testimony was not outweighed by other
considerations. Here, the trial court was concerned that the State would have multiple
witnesses testify to an out-of-court identification made months later. The court’s apparent
concern for improper, repetitive bolstering is understandable and not unreasonable.
¶ 84 Likewise, the State’s arguments as to relevancy of the statements may also be well-taken.
However, we will not substitute our judgment for that of the trial court, especially when, as
here, the trial court supported the exercise of its considerable discretion with a thorough and
logical explanation.
¶ 85 We also acknowledge that the State’s concern about the credibility of its eyewitness may
be well-founded. Both the Illinois Supreme Court and the United States Supreme Court have
acknowledged that the length of time between the event and the identification is a factor for
consideration. See Tisdel, 201 Ill. 2d at 219 (“ ‘What is the jury to make of this [one- or
two-year] delay? The defense will attack the investigation ***.’ ” (quoting People v. Tisdel,
316 Ill. App. 3d 1143, 1162, 739 N.E.2d 31, 46 (2000) (Quinn, P.J., specially concurring)));
Neil v. Biggers, 409 U.S. 188, 201 (1972) (“There was, to be sure, a lapse of seven months
between the rape and the confrontation. This would be a seriously negative factor in most
cases.”). Indeed, in this very case, defendant has attacked the credibility of Mrs. Legg, in part,
because of the length of time between the event and the identification.
¶ 86 However, as with all rulings on motions in limine, the trial court’s ruling that the
Guenthers’ testimony is not admissible is interlocutory and subject to reversal at any time,
including at trial. For instance, if defendant were to attack Mrs. Legg’s credibility at trial and
present evidence or argument claiming fabrication, as the State fears might happen, the trial
court would be free to revisit its ruling and assess whether the probative value of the
Guenthers’ testimony is no longer substantially outweighed by its risk of being cumulative.
¶ 87 Last, the State cites a litany of cases in which courts expressly declined to limit the number
of witnesses the prosecution could call under section 115-10. See, for example, People v. Stull,
2014 IL App (4th) 120704, ¶ 93, 5 N.E.3d 328 (collecting cases). Courts analyzing both that
statute and section 115-10.1 have expressly refused to limit the number of witnesses who can
testify to statements because the statutes contain no such limitation. See id.; White, 2011 IL
App (1st) 092852, ¶¶ 43-46 (discussing 725 ILCS 5/115-10.1 (West 2010)). We note that
defendant points out that section 115-10 contains an “indicia of reliability” requirement, and
therefore, the cases are inapposite.
¶ 88 While we agree with the State that section 115-12 does not limit the number of witnesses it
may call at trial, we decline the invitation to analogize the facts of this case with those
analyzing section 115-10 and 115-10.1. In those cases, the issue was whether the trial court
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abused its discretion by allowing multiple witnesses to testify. The issue here is whether the
trial court abused its discretion by not allowing more witnesses to testify. Here, the trial court
determined it would permit Mr. Legg to testify and, after carefully considering the evidence,
determined the Guenthers’ testimony would be repetitive and cumulative under the specific
facts and circumstances of this case. The trial court was free to engage in that analysis, and its
ultimate ruling was not an abuse of discretion.
¶ 89 C. Forfeiture by Wrongdoing
¶ 90 Next, the State argues that the trial court misapplied the forfeiture by wrongdoing doctrine,
which is codified in Illinois Rule of Evidence 804(b)(5) (eff. Jan. 1, 2011). The State first
contends that the court’s order was overly broad and excluded the offered statements for
reasons that were not before it; specifically, the State asserts that the court erroneously
concluded the statements were admissible under the forfeiture by wrongdoing doctrine but
excluded them for various additional “evidentiary concerns” unrelated to Rule 804(b)(5).
¶ 91 The State also asserts that the trial court’s order was overly broad, and therefore improper,
because it unduly restricted the State’s ability to present its case. Similarly, the State argues
that the court erred by not addressing the specific reasons for excluding each individual
statement, thereby making it impossible for the State to seek to introduce the statements at trial
without violating the court’s order and risking a mistrial.
¶ 92 Next, the State claims the trial court erred by adding two requirements to the forfeiture by
wrongdoing doctrine: (1) that the statements be specific quotations from the declarant and (2)
that the statements be related to the defendant’s intent to procure the unavailability of the
witness for trial.
¶ 93 Last, the State argues that the trial court abused its discretion by finding the proffered
statements were irrelevant, speculative, remote, cumulative, or otherwise inadmissible under
the rules of evidence.
¶ 94 In response, defendant contends that the trial court properly excluded the statements based
on other evidentiary considerations raised by defendant in his own motion in limine.
Defendant contends that the statements do not meet the minimum requirements for
admissibility because they were, in fact, irrelevant, remote, speculative, and unduly
prejudicial. Defendant asserts that “[u]ltimately, the State’s arguments concerning the
excluded evidence of alleged motive boils down to a mere disagreement with the trial court’s
discretionary decisions.” We agree.
¶ 95 We first address whether the court properly applied the doctrine of forfeiture by
wrongdoing to the statements at issue. Then, we consider the State’s arguments relating to
whether the trial court’s order complied with the rules generally governing motions in limine.
¶ 96 1. The Trial Court’s Application of the Forfeiture by Wrongdoing Doctrine
¶ 97 Rule of Evidence 804(b)(5) provides that “[a] statement offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability
of the declarant as a witness,” is “not excluded by the hearsay rule.” Ill. R. Evid. 804(b)(5) (eff.
Jan. 1, 2011). The forfeiture by wrongdoing rule is a codification of, and is coextensive with,
the common-law doctrine. Hanson, 238 Ill. 2d at 97. This doctrine “serves both as an exception
to the hearsay rule and to extinguish confrontation clause claims.” Id. The doctrine is based on
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the “equitable maxim that ‘no one shall be permitted to take advantage of his own wrong.’ ”
Peterson, 2017 IL 120331, ¶ 18 (quoting Reynolds v. United States, 98 U.S. 145, 159 (1878)).
¶ 98 The doctrine has two, and “only two[,] criteria or factors that must be satisfied for the
admission of hearsay statements under the rule: (1) that the party against whom the statement is
offered ‘has engaged or acquiesced in wrongdoing’ and (2) that such wrongdoing ‘was
intended to, and did, procure the unavailability of the declarant as a witness.’ ” Id. ¶ 32
(quoting Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011)). The Illinois Supreme Court has explained
“that a defendant forfeits his ability to challenge the reliability of the declarant’s statements by
the very act of preventing the declarant from testifying,” and “requiring additional indicia of
reliability would undermine the equitable considerations at the very center of the forfeiture by
wrongdoing doctrine.” Id. ¶ 33 (citing Hanson, 238 Ill. 2d at 98). Accordingly, “so long as the
declarant’s statements are relevant and otherwise admissible, statements admitted under the
forfeiture by wrongdoing doctrine need not reflect additional indicia of reliability.” Hanson,
238 Ill. 2d at 99.
¶ 99 It is important to note that, in this case, the application of the doctrine is not at issue. Unlike
most cases dealing with the doctrine, neither party challenges the validity of the trial court’s
finding that defendant murdered Pamela with the intent of preventing her from testifying at a
future court proceeding. Neither party argues the hearsay rule or confrontation clause has any
bearing on the admissibility of the evidence. Instead, this appeal concerns the scope of the
evidence admissible under the doctrine of forfeiture by wrongdoing and the trial court’s role in
determining that scope.
¶ 100 a. Limit as to “Specific” Statements
¶ 101 The State first argues that the court required the witnesses to testify to the exact wording of
Pamela’s statements in order for them to be admissible. Specifically, the State quotes various
statements from the trial court where it instructed witnesses to “be as specific as possible,” as
opposed to giving a summary. We disagree for two reasons.
¶ 102 First, the trial court’s order directly rebuts the State’s contention. During the pre-trial
hearings, the court clearly expressed a preference for “specific statements that were allegedly
made by the deceased.” The court admonished Knuckey in particular that “[g]eneral
conversations like we have in real life or in the real world aren’t the types of conversations that
help us,” and that “I’m going to ask you to be as specific as possible as to what you recall
having been said to you by Pam Zimmerman. And if you don’t recall specifically what was
said, to indicate that. But what we really need is for you to be as specific as you possibly can.”
¶ 103 The State’s claim that these admonishments show the trial court was requiring something
more from the witnesses than what is required under the rule is belied by the fact that one of the
three statements the court deemed admissible was that of Knuckey that “Pam told [her] either
in October of 2013 or 2014 that the defendant wasn’t going to be able to retire if he had to
continue with all ‘this’, i.e. child support.” Immediately after Knuckey offered this testimony,
defendant objected to the testimony as “irrelevant” and “speculative.” The trial court overruled
the objection but told the witness it preferred to have “specific statements” as opposed to the
witness providing a summary.
¶ 104 Second, a thorough review of the record demonstrates that the trial court did not
improperly limit any witness’s testimony. Instead, the court simply indicated its strong and
understandable preference for specific statements and informed some of the witnesses of this
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preference. Thereafter, the parties elicited responses from the witnesses to the best of their
abilities to recall.
¶ 105 Trial courts have broad discretion regarding how hearings on motions in limine and offers
of proof will be conducted. People v. Owen, 299 Ill. App. 3d 818, 823, 701 N.E.2d 1174, 1178
(1998). Here, the court made clear it did not want summaries or editorial comments and asked
the witnesses for their best recollections of what Pamela said to them. The court’s doing so was
entirely appropriate. Conclusions, speculations, statements of probability, or witnesses’
opinions of what was said are not admissible. People v. Riley, 99 Ill. App. 3d 244, 252, 424
N.E.2d 1377, 1383 (1981); People v. Holveck, 141 Ill. 2d 84, 105-06, 565 N.E.2d 919, 928-29
(1990); Allen B. Wrisley Co. v. Burke, 203 Ill. 250, 257, 67 N.E. 818, 821 (1903).
¶ 106 The trial court is in the best position to evaluate testimony, and we will not substitute our
judgment for that of the trial court. After thoroughly reviewing the record, we do not believe
the trial court abused its discretion by unduly limiting or restricting the testimony of any
witness. We acknowledge that the trial court was certainly aggressive in pinning down the
exact statements sought to be admitted, but this was not improper under these circumstances.
¶ 107 b. Limit of Subject Matter
¶ 108 The State next argues that the trial court erred by limiting the evidence under the forfeiture
by wrongdoing doctrine to statements that “are evidence of defendant’s specific intent to
prevent the victim from being a witness.”
¶ 109 The text of Rule 804(b)(5) does not limit the subject matter of the statements that may be
admissible under the doctrine of forfeiture by wrongdoing. Additionally, courts that have
considered this issue have held that the doctrine does not create a subject-matter limitation.
United States v. Dhinsa, 243 F.3d 635, 652-53 (2d Cir. 2001) (“[W]e hold that [Federal Rule of
Evidence] 804(b)(6) places no limitation on the subject matter of the declarant’s statements
that can be offered against the defendant at trial to prove that the defendant murdered the
declarant.”); United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999) (“The [forfeiture by
wrongdoing] rule contains no limitation on the subject matter of the statements that it exempts
from the prohibition on hearsay evidence.”); United States v. Gray, 405 F.3d 227, 241 (4th Cir.
2005) (“[The rule] does [not] limit the subject matter of admissible statements to events
distinct from the events at issue in the trial in which the statements are offered.”); State v. Ivy,
188 S.W.3d 132, 147 (Tenn. 2006) (the rule “does not limit a declarant’s statements to past
events or prior offenses the declarant would have testified about” (emphases in original)).
¶ 110 We agree that the forfeiture by wrongdoing doctrine and Illinois Rule of Evidence
804(b)(5) do not limit the subject matter of admissible statements. The Illinois Supreme Court
has explicitly stated that a defendant who intends to and does prevent a witness from testifying
forfeits his or her right to object to the victim’s statements on hearsay, confrontation, and
reliability grounds. Hanson, 238 Ill. 2d at 98-99. Indeed, the supreme court has clearly held
“ ‘that so long as the declarant’s statements are relevant and otherwise admissible,’ ” no other
requirements must be met. (Emphasis added.) Peterson, 2017 IL 120331, ¶¶ 32-33 (quoting
Hanson, 238 Ill. 2d at 99).
¶ 111 Although the State is correct on this legal point, the State is not correct that this point has
any relevance to the issue before this court on appeal. Here, the trial court explained it was
rejecting the State’s position that “any and all statements made by the deceased about the
defendant for up to four years prior to her murder, whether they are relevant and/or otherwise
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admissible should still be allowed to be heard by the jury.” (Emphasis added.) Instead, the
court stated: “Forfeiture by wrongdoing has a much more limited application ***. The proper
question is what statements and/or documents offered by the State are evidence of the
defendant’s specific intent to prevent the victim from being a witness ***.”
¶ 112 The trial court’s focus on what evidence demonstrates the defendant’s specific intent to
prevent Pamela from being a witness is the correct inquiry when deciding whether the
forfeiture doctrine applies in the first instance. Once this question is answered in the
affirmative, as it was in this case, the only other questions for the trial court to consider are
whether the evidence is (1) relevant and (2) otherwise admissible.
¶ 113 The record demonstrates the trial court did not abuse its discretion by admitting only three
particular statements from Pamela. After delineating the admissible statements, the trial court
stated the following: “All remaining statements and or documents sought to be introduced by
the State are not admissible under the doctrine of forfeiture by wrongdoing and Illinois Rule of
Evidence 804(b)(5) as one or more of the following additional evidentiary considerations
apply ***.” (Emphasis added.) We deem this order adequate to show that the court was making
clear that the remaining statements were excluded for reasons wholly separate and apart from
the analysis of whether a particular statement falls under the doctrine of forfeiture by
wrongdoing.
¶ 114 The trial court’s ruling on the State’s motion to reconsider further demonstrates the court
was excluding the statements not because they did not meet forfeiture by wrongdoing
requirements, but because they failed under the “otherwise admissible” prong mentioned in
Hanson. The court here even directly addressed its holding that “not every statement by a
deceased can be admitted under that section of the Illinois Rules of Evidence,” and noted that
“the [S]tate couldn’t ask her [why she made the offered statements] even if she were still
alive,” because “you can’t look at a statement in a vacuum[;] it requires analysis and
assessment of the entire rules of evidence.”
¶ 115 The trial court explained that it reviewed every statement “based upon all of the criteria that
were noted within the order,” and then listed each criterion. The list was virtually identical to
that provided in the written order. Accordingly, we conclude that the trial court did not
improperly add an additional requirement to the forfeiture by wrongdoing doctrine.
¶ 116 c. Whether the Statements Were Relevant and Otherwise Admissible
¶ 117 In the alternative, the State argues that the trial court abused its discretion when it ruled all
remaining statements and documents were inadmissible based on other evidentiary
considerations. In its brief, the State specifically addresses numerous statements it believes are
particularly relevant and demonstrate why the trial court abused its discretion by finding them
inadmissible. We need not address each statement directly. Instead, we will address a few
statements to illustrate why the trial court did not abuse its discretion.
¶ 118 At first blush, the trial court’s order restricting the admissibility of the State’s evidence is
somewhat confusing. After all, the court found, based on a preponderance of the evidence, that
defendant murdered Pamela to prevent her from testifying at a future hearing concerning child
support payments. This finding seems incongruous with deeming some of Pamela’s statements
to third parties inadmissible because, for the reasons the State argues, the statements
demonstrated motive. However, the court explained the basis for its ruling in the order.
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¶ 119 Specifically, the trial court relied upon documentary evidence, Mrs. Legg’s eyewitness
testimony, gunshot residue found in defendant’s car, and the evidence of ongoing financial
issues between defendant and Pamela “at or near the time of her murder.” Given this context of
evidence that the court had ruled could be admitted, as well as the admission of three of
Pamela’s statements pursuant to the forfeiture by wrongdoing doctrine, the trial court clearly
believed the remaining statements offered by the State were unnecessary and of limited
probative value. This finding of the limited probative value of the remaining statements, as we
shall explain, is of critical importance.
¶ 120 As soon as the trial court admitted some of Pamela’s statements pursuant to the forfeiture
by wrongdoing doctrine, the probative value of the remaining statements changed. That is
because, as the State correctly notes in its brief, all evidence offered at trial is prejudicial in that
it is introduced for the purpose of proving the proponent’s case or undermining the opponent’s
case; if it were not prejudicial, it would not be relevant. See People v. Stevenson, 2014 IL App
(4th) 130313, ¶ 55, 12 N.E.3d 179 (“Defendant is correct the fact he has an opiate addiction
could be prejudicial, as is most evidence introduced against a criminal defendant ***.”);
Michael H. Graham, Handbook of Illinois Evidence § 403.1, at 234 (2017 ed.) (“Since all
effective evidence is prejudicial in the sense of damaging the party against whom offered, only
unfairly prejudicial evidence calls for exclusion ***.”). Hence, Rule 403 only prohibits
unfairly prejudicial evidence, and even then, only when the probative value is substantially
outweighed by that prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Pelo, 404 Ill. App.
3d 839, 867, 942 N.E.2d 463, 487 (2010).
¶ 121 Once the trial court decided that some of Pamela’s statements were admissible, the
probative value of her remaining statements decreases because those statements start to
become cumulative. However, the level of those statements’ potential prejudice remains the
same, if not increases, due to repetition. Thus, the Rule 403 balancing test is constantly in flux
as evidence is let in or kept out. This is what makes Rule 403 such an important tool in
controlling the admission of evidence and why trial courts are granted vast discretion over
evidentiary matters.
¶ 122 The State’s assertion is incorrect that Floyd, 103 Ill. 2d 541, did not provide the trial court
with a basis to exclude the victim’s statements that she was afraid of defendant and that “if
anything happened to her, defendant did it.” Although the State correctly notes that Floyd dealt
with the state of mind exception to the rule against hearsay and was decided prior to our
supreme court’s adoption of the forfeiture by wrongdoing doctrine, Floyd also based its
holding squarely on the relevancy of the proposed statements. Id. at 547.
¶ 123 In Floyd, the State alleged defendant killed his wife. Id. at 543. Defendant asserted it was
an accident, and to rebut this defense, the State offered various statements from the victim
under the state of mind exception that demonstrated she was concerned for her safety, was
afraid of defendant, and if anything happened to her, she wanted her parents to take care of
their children. Id. at 544-46. The supreme court held the statements were improperly admitted
because the victim’s state of mind was irrelevant to the issues in the case and those statements
could only be introduced for the purpose of demonstrating the defendant’s propensity or
likelihood of committing the crime. Id. at 547.
¶ 124 As in Floyd, it is unclear how Pamela’s generalized statements in this case concerning her
fear or suspicion of her ex-husband, on their own, relate in any way to defendant’s motive,
intent, or opportunity to commit murder. Had the testimony shown defendant made threats to
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Pamela, and these threats caused her fears and suspicions, then the statements might be
probative of defendant’s state of mind—that is, his motive and intent. See Hanson, 238 Ill. 2d
at 97-98 (“Had Katherine not been made unavailable by defendant’s wrongdoing, she might
have testified as to the threat defendant made against her.”). Pamela’s statements that she was
afraid of defendant, without any further context, amount to an opinion as to defendant’s
character, opening the door to the possibility that the jury would convict defendant on an
impermissible basis.
¶ 125 Despite our unwillingness to reverse the trial court, we nonetheless have some sympathy
for the State’s position. Before the trial court, the State argued that motive is not confined to
any particular time. The State argues before this court that the divorce proceedings and certain
statements from Pamela regarding defendant’s attitudes toward money and his overwhelming
concern for his pension and retirement date are all relevant to provide context as to why he
murdered Pamela.
¶ 126 Peterson demonstrates that feelings about money, pension, and retirement can provide
motive to kill both an ex-wife and a current wife. Peterson, 2017 IL 120331, ¶¶ 45, 75. The
State’s desire to paint a similar picture in this case is understandable. However, the statements
and surrounding context in this case are different and not nearly as overwhelming as those
present in Peterson.
¶ 127 Were we to consider this evidence in the first instance as the trial court did, we might very
well have reached a different conclusion. However, that is not the issue before us. Our
involvement in this case is as a reviewing court, which means that we will reverse the trial
court’s ruling only if it is arbitrary and unreasonable such that no reasonable person would
agree. We conclude that the trial court’s ruling was thorough, thoughtful, and, most important,
not unreasonable based on the record before it.
¶ 128 For instance, we note that the trial court’s decision to exclude statements made during the
original divorce proceedings was not unreasonable. As defendant argued to the trial court,
many of the statements the State sought to introduce were either (1) common to many divorce
proceedings or (2) ran the risk of relitigating the couple’s 2012 divorce. Examples are the
State’s seeking to introduce statements from Terry O’Riley that Pamela told her “[defendant]
said that he was done paying for the children; it was her turn to pay now” and from Eric Hjerpe
that Pamela told him she would not go after half of defendant’s pension because “she did not
want him taking anything out against the children.” The State also sought to introduce
statements prior to the divorce that defendant had said to Pamela, “If I can’t have you, no one
can,” and “You’ll never keep those kids if you divorce me.” Further, the State sought to
introduce testimony from Karen Anderson, a divorce mediator, as to conversations that took
place during mediations pertaining to defendant’s pension, including that defendant said “that
isn’t going to happen” before walking out, shortly after which Pamela said, “He is going to kill
me. I’m really afraid he is going to kill me.”
¶ 129 With the obvious exception of the last statement, many of these statements are not unusual
in contentious divorce proceedings. Divorce is a stressful event for even the most
well-adjusted and calm individuals. Because of the large number of statements the State sought
to introduce, the trial court could have reasonably determined that in order to explain these
statements, defendant would have needed to introduce testimony concerning the 2012 divorce,
and the risk of confusing the jury was simply too great. This risk of confusion is certainly
heightened where many of the comments were made over two years prior to Pamela’s death,
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and in the trial court’s eyes, this two-year gap apparently significantly decreased the
testimony’s probative value.
¶ 130 D. Motions in Limine in General
¶ 131 The State’s remaining arguments involve whether the trial court followed proper procedure
in ruling on the motions in limine. First, the State contends the court’s order was overly broad
and excluded the offered statements for reasons that were not before it; specifically, the court
erroneously concluded the statements were admissible under forfeiture by wrongdoing but
excluded them for various additional “evidentiary concerns” unrelated to Rule 804(b)(5).
¶ 132 Likewise, the State argues the trial court’s determination that the Guenthers’ identification
testimony would be cumulative was premature and should have been reserved for trial. The
State also asserts the court’s order was overly broad, and, therefore improper, because it
unduly restricted the State’s ability to present its case. Similarly, the State argues the court
erred by not addressing the specific reasons for excluding each individual statement, thereby
making it impossible for the State to seek to introduce the statements at trial without violating
the court’s order and risking a mistrial.
¶ 133 1. The Applicable Law
¶ 134 A motion in limine is addressed to a court’s inherent power to admit or exclude evidence.
Stevenson, 2014 IL App (4th) 130313, ¶ 26. These motions are designed to call to the attention
of a trial court, in advance of trial, some evidence that is potentially irrelevant, inadmissible, or
prejudicial and to obtain a pretrial ruling from the court excluding or permitting the evidence.
Id. The utility of motions in limine comes from the fact that they are typically ruled on
significantly in advance of trial. “As a result, motions in limine often achieve great savings of
time and judicial efficiency,” and if they resolve difficult evidentiary issues prior to trial, they
can greatly encourage settlement or guilty pleas and streamline preparations for trial. Owen,
299 Ill. App. 3d at 822-23. Seeking a ruling in advance of trial also greatly assists the trial court
by giving it adequate time to review and consider the evidentiary issue, research the matter,
and consider whether to hold an evidentiary hearing. For these and other reasons, we strongly
encourage litigants to take advantage of motions in limine.
¶ 135 The Illinois Supreme Court has called motions in limine powerful and potentially
dangerous weapons because of their ability to restrict evidence. Reidelberger v. Highland
Body Shop, Inc., 83 Ill. 2d 545, 550, 416 N.E.2d 268, 271 (1981). Accordingly, such motions
“must be specific and allow the court and the parties to understand what evidence is at issue.”
Stevenson, 2014 IL App (4th) 130313, ¶ 27. Written motions are strongly preferred, especially
“whenever complicated or sensitive evidence is at issue.” Id. This allows the movant to
carefully identify the evidence sought to be excluded and articulate his or her argument in
support, preventing confusion and misunderstanding by defining the evidence at issue and
capturing the movant’s arguments. Id. “If nothing else, a written motion allows the parties and
court to refer to a fixed version of the movant’s request.” Id.
¶ 136 Likewise, rulings on motions in limine should be in writing so as to prevent confusion and
misunderstanding. Reidelberger, 83 Ill. 2d at 550. “Trial judges should attempt to enter narrow
in limine orders, anticipate proper evidence that might be excluded by the orders, and make the
orders clear and precise so that all parties concerned have an accurate understanding of their
limitations. An unclear order in limine is worse than no order at all ***.” Compton v. Ubilluz,
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353 Ill. App. 3d 863, 871, 819 N.E.2d 767, 776 (2004). “Before granting a motion in limine,
courts must be certain that such action will not unduly restrict the opposing party’s
presentation of its case.” Reidelberger, 83 Ill. 2d at 550.
¶ 137 One difficulty common to all motions in limine is that they occur—by definition—out of
the normal trial context, and resolving such a motion requires the trial court to determine what
that context will be. Thus, the court must receive offers of proof consisting either of live
testimony or counsel’s representations that the court finds sufficiently credible and reliable.
Owen, 299 Ill. App. 3d at 823. As the court in Stevenson explained:
“ ‘[A]n offer of proof serves dual purposes: (1) it discloses to the court and opposing
counsel the nature of the offered evidence, thus enabling the court to take appropriate
action, and (2) it provides the reviewing court with an adequate record to determine
whether the trial court’s action was erroneous.’ People v. Pelo, 404 Ill. App. 3d 839,
875, 942 N.E.2d 463, 494 (2010) ***. An offer of proof may be formal or informal, but
an informal offer of proof must identify the complained-of evidence with
‘particularity.’ Pelo, 404 Ill. App. 3d at 875, 942 N.E.2d at 494. An offer of proof is
inadequate if it is a mere summary or ‘offers unsupported speculation’ about the
evidence. Id. at 876, 942 N.E.2d at 494. While an offer of proof assists the parties, the
trial court, and a reviewing court in determining the evidence at issue, ‘a court is
disadvantaged in ruling on a motion in limine because it is considered in a vacuum,
before the presentation of the full evidence at trial that may justify admission or require
exclusion.’ Compton, 353 Ill. App. 3d at 871, 819 N.E.2d at 776.” Stevenson, 2014 IL
App (4th) 130313, ¶ 28.
¶ 138 The rules for offers of proof apply with equal force to motions in limine:
“[D]epending upon the nature of the evidentiary issue before it, the court has vast
discretion as to how it will conduct the hearing on a motion in limine—that is,
requiring live witnesses or representations, affidavits, or whatever—and the court has
vast discretion as to how detailed such a hearing will be, as well.” Owen, 299 Ill. App.
3d at 823.
¶ 139 Trial courts are free to exercise their discretion by not entertaining a motion in limine and
instead requiring that the objection be raised in the normal course of trial, outside the presence
of the jury. Id. This is because a court must “balance the prejudice that might be avoided if it
grants the motion against the complication or inconvenience that would result if the motion is
denied” (Rush v. Hamdy, 255 Ill. App. 3d 352, 365, 627 N.E.2d 1119, 1127 (1993)); and, in
certain cases, the best way to ensure a correct ruling on a complicated evidentiary issue is to
wait for that issue to become ripe at trial when the court has already heard the evidence, and the
context in which the evidentiary ruling is to be made is clear. Owen, 299 Ill. App. 3d at 823-24.
¶ 140 2. The Facts of This Case
¶ 141 The State argues the trial court erred when it went beyond simply deciding if the specific
doctrine at issue in each motion in limine applied and instead ruled based on other “evidentiary
considerations.” In other words, the State argues the trial court was required to rule solely on
the issues of prior identification and forfeiture by wrongdoing and not address other
evidentiary concerns. We disagree.
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¶ 142 Motions in limine are a tool to streamline trials and greatly increase judicial economy. The
State’s argument that a trial court must make a determination based solely on the specific issue
presented by the initial movant flies in the face of this policy. Defendant argues the trial court
properly considered the arguments he raised in his responses and his motion in limine to
exclude the same evidence that the State sought to introduce. However, even had defendant not
done so, once a party seeks a ruling on the admissibility of evidence from the court, the court
may, but is not required to, freely consider the admissibility of the evidence on any permissible
basis. In other words, once the question of admissibility is presented, the trial court is a free
agent and may evaluate the evidence under any and all applicable rules of evidence regardless
of whether a party presented those grounds to the court. The decision whether to look beyond
the arguments of the parties lies within the trial court’s sound discretion.
¶ 143 A trial court may also decide a more limited inquiry is appropriate in certain circumstances.
Thus, had the trial court decided to only address whether the doctrine of forfeiture by
wrongdoing applied at all before taking up the issue of whether certain statements were
“relevant and otherwise admissible,” the court would not have abused its discretion. But, in
this case, the court believed, and the record reflects, there was an adequate offer of proof and
arguments from the parties on the totality of the admissibility of the statements for the court to
make a holistic ruling. In short, the court acted properly when it went beyond the initial
question presented by the State (whether Rule 801(d)(1)(B) and Rule 804(b)(5) applied) and
ruled that the proposed statements were inadmissible pursuant to other applicable rules of
evidence (that is, factors considered under Rule 403).
¶ 144 Next, the State argues the trial court’s ruling on its motion in limine to admit statements
under the doctrine of forfeiture by wrongdoing was overly broad because it did not address
each statement individually and instead provided a list of multiple bases for exclusion. The
State argues the vague nature of the order means it will be forced to guess as to the foundation
required to overcome the court’s ruling and therefore risk a mistrial. We disagree.
¶ 145 We are unaware of any authority requiring a trial court to make a separate ruling on each
individual piece of evidence or statement offered in a motion in limine, and our holding in
Owen indicates the contrary. Owen, 299 Ill. App. 3d at 824 (explaining trial courts do not abuse
their discretion by declining to rule on a motion in limine). Here, although the trial court ruled
on the motion in limine, it did not abuse its discretion by declining to address each individual
statement or by listing the many reasons it believed the statements were inadmissible.
¶ 146 Additionally, the trial court was clear it would reconsider its ruling based upon the
evidence actually presented at trial if the State would so request. We are not persuaded by the
State’s claim that it is unable to tell from the order what foundation it needs to lay or other
evidence it needs to present at trial in order to address the trial court’s concerns.
¶ 147 Rulings on motions in limine are, by their very nature, interlocutory and made based upon
an expectation of the evidence that will be presented at trial. Stevenson, 2017 IL App (4th)
130313, ¶¶ 28-29. As such, a court is simply making its best guess as to what evidence will be
presented and the context in which the proposed evidence will be offered.
¶ 148 Here, the parties did an excellent job of presenting evidence at the hearings on the motions
in limine, and the trial court was well-served as a result. Not only did the parties thoroughly set
forth the testimony they may seek to introduce at trial, but their arguments to the court set forth
exactly how the evidence could be relevant and used at trial.
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¶ 149 The interlocutory nature of motions in limine is why parties should reraise the issues
during trial. The trial court is always free to reconsider and reassess its interlocutory rulings as
the trial unfolds and context is provided.
¶ 150 The State is correct that all of the statements it sought to be admitted could be relevant at
trial, depending on the context when they are offered. The court’s order is clear that its ruling is
preliminary and subject to change. In fact, in its briefs to this court, the State explains in detail
how each statement could be relevant and provides the context for when they could be used at
trial. Based on what the State has argued before this court, we believe it is amply prepared to
lay the foundation and context necessary for the trial court to reconsider its ruling at trial. (In so
observing, we in no way suggest the court must or should reach a different result, only that it
will have the chance to revisit the issue in full context at trial if the State so requests.)
¶ 151 Last, the State argues the trial court’s ruling was overly broad and “effectively gutted” the
State’s ability to present certain aspects of its case. For example, the State maintains “the trial
court’s ruling precluded the State from presenting evidence that the dispute over payment or
non-payment of child support was a running problem *** and that defendant’s desire to retire
at a specific age was a long-term aspiration.” We disagree.
¶ 152 The trial court’s order is clear that only the specific statements offered by the State are
inadmissible, not the underlying facts behind the statements or the subject matter of the
statements. The trial court did not state in its written order that the State could not present other
evidence that would support the State’s belief that the murder was motivated by a long-running
dispute over child-support payments and retirement age. Because the parties and the court have
done such a thorough and exceptional job fleshing out the issues, it should not be difficult for
the court to reconsider its ruling, if so requested, in light of the actual evidence presented at
trial.
¶ 153 In closing, we commend the State for recognizing prior to trial potentially problematic
evidence it believed was important to its case and for filing a motion in limine to give the trial
court an opportunity to consider that evidence. We also commend defendant for skillfully and
thoroughly responding to the State’s motions, as well as for filing his own motions in limine.
Last, we also commend the trial court for its thoughtful and careful consideration of the
complex evidentiary issues presented by these motions in limine. We particularly appreciate
the trial court’s lengthy and detailed explanations that accompanied its rulings.
¶ 154 III. CONCLUSION
¶ 155 For the reasons stated above, we affirm the trial court’s judgment.
¶ 156 Affirmed.
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